PRADEEP KUMAR RASTOGI Vs. STATE OF U P

JUDGEMENT

(1.) AMAR Saran, J. Heard learned Counsel for me revisionist and the learned A. G. A.

(2.) AN order dated 29-8-2007 passed by the C. J. M. , Mirzapur, in Case Crime' No. 147 2007 under Sections 302, 394,411, 120-B, IPC, refusing the applicant informants application dated 9-8-2007 under Section 451, Cr. P. C. to release certain silver and gold jewellery items specified in the application which were said to have been looted from a bag belonging to the applicant's aunt Pushpa Devi on 18-3-2007 after she was shot at by the miscreants, and which have been recovered by the police from the possession of the accused, has been challenged by means of this application. As the said items do not appear to have been produced before the learned Magistrate up to this stage, perhaps the application has been misde- scribed as an application under Section 451, Cr. P. C. when it actually should be described as an application under Section 457, Cr. P. C. But mere misdescription of the application will not make it non- maintainable. A report of the incident was earlier lodged at PS. Kachhawa, District Mirzapur.

(3.) LEARNED Counsel for the revisionist has also drawn my attention to the decision of the Apex Court in Sunder bhai Ambalal Desai v. State of Gujarat AIR 2003 SC 638, for the proposition that the powers under Sections 451 and 457, Cr. P. C should be exercised judiciously and the owner of the article should not suffer loss or the risk of the property being mis appropriated if it remains lying in the Court or the police's custody. As far as possible such items ought to be directed to be handed over expeditiously to the claimant if he pan be identified and if there are no competing claimants for the same. Precautions can be taken at the time of handing over the items tcrthe claimant by getting a Panchnama of the goods prepared that can be used an evidence in place of the goods and if necessary, evidence could also be recorded describing the nature of the property.