KANHAIYA RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) - These two Writ Petitions arise out of the proceedings taken under Section 457 of the Code of Criminal Procedure for release of the licensed guns of the petitioners seized in a criminal case initiated against the petitioners under Section 307 of the Indian Penal Code.

(2.) The moot question is: Whether the trying court is empowered to deal with the release of goods on the basis of report of seizure and production of seizure list marked exhibit in the case at the end of the trial, even though the seized goods were not physically produced before it?

(3.) It appears that the licensed guns of the petitioners were seized by the police. The petitioners faced sessions trial which ended in conviction by the 6th Additional Sessions Judge, Arrah, against which the petitioners came up in Cr. Appeal No. 447 of 1981 and the Judgment of the learned Sessions Judge was upheld with slight modification in the sentence. In the sessions trial the seizure list of the guns was marked as exhibit, but there was no physical production of the guns. The guns are stated to have been used in the commission of the offence. The 6th Additional Sessions Judge did not pass any order with respect to the guns in question nor any prayer for the release of the guns was made before the trying court. After the conclusion of the trial the petitioners moved the court of the Chief Judicial Magistrate, where the guns were produced by the police along with the seizure list, on the ground that since the physical production of the guns was before the Chief Judicial Magistrate, the Chief Judicial Magistrate is empowered to deal with the disposal of the property, and for their delivery to the persons entitled to. It was stated that the licences of the petitioners, were renewed from time to time, and they are competent to take possession of the guns and to hold them. The Chief Judicial Magistrate refused to release the guns on the ground that he, being not in session of the matter, was unable to pass an order for the disposal of the guns, as against which a revision was taken before the Sessions Judge and the learned Sessions Judge held that the proper forum for the prayer is before the trial court and not the criminal court.