ONKAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) I have heard the learned Counsel for the accused -petitioners and the learned Public Prosecutor for the State at the admission stage and I am of the opinion that so far as this application on behalf of Onkar Singh is concerned, it deserves to be allowed, but so far as Jangir Singh is concerned, his application has no merit and deserves to be dismissed.

(2.) FOR the disposal of this application, the facts, though short, are relevant and are these. The two petitioners Onkar Singh and Jangir Singh were tried by the learned Additional District Judge Sri Ganganagar in Sessions case No. 55/71 and the Additional Sessions Judge, under his judgment dated May 21, 197, acquitted both the petitioners of the charges under Sections 307 and 332 of the IPC. Onkar Singh petitioner was also acquitted of a charge under Section 28 of the Arms Act. The learned Judge, in operative part of the aforesaid judgment, ordered that the gun recovered may be returned to Onkar Singh, after expiry of period of appeal along with Dhoti, which was recovered from him. It may be stated that in that case, two guns were recovered. One from Onkar Singh and the other from Jangir Singh It appears from the perusal of the judgment that while acquitting Onkar Singh, an order was made that the gun (Article 1) may be given to him, but so far as other gun is concerned, it does not appear from the perusal of the judgment that it was treated as having been recovered from Jangir Singh and no order appears to have been passed in respect of that gun.

(3.) UNDER Section 452 of the Code of Criminal Procedure when a trial is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivrey to any person claiming to be entitled to possession thereof or otherwise, of any property or document before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. Such an order is made either without any condition or on condition that the person in whose favour the order is made, executes a bond, with or without sureties, to the satisfaction of the Court, to restore such property to the Court if the order made under Sub -section (1) of Section 452 of the Criminal Procedure Code is modified or set aside on appeal or revision. The order made under Section 452 of the Criminal Procedure Code is appealable under Section 452 of the same Code. In my opinion, the order made on 28th March, 1974 suffers from two infirmities. So far as it affects Onkar Singh, the first infirmity is that, while acquitting Onkar Singh, an order had been made in his favour and before it could be set aside or modified, it was necessary that Onkar Singh should have been afforded a reasonable opportunity of being heard. Denial of such an opportunity contravenes the satutory principles of natural justice. The second infirmity is that the order made in his favour was unconditional and no condition had been imposed. Such an order is appealable under Section 452 of the Criminal Procedure Code and the learned Additional Sessions Judge had no powers vested in him to modify or set aside the same, after it had been made in favour of Onkar Singh. If the State felt aggrieved, it could have preferred an appeal under Section 454 of the Criminal Procedure Code against the aforesaid order. Thus, the order passed against Onkar Singh cannot be allowed to stand. But so far as Jangir Singh is concerned, as already stated earlier, no order has been made in his favour and if Jangir Singh thought that the custody of the gun which, according to him was recovered from him, should have been restored to him, he could have filed an appeal. As a consequence of the acquittal in the judgment, he had right of appeal under Section 454 of the Criminal Procedure Code.