Admittedly, the case has been registered for the offences under Sections 147, 148, 294(b), 307 IPC r/w Section 25 of Arms Act, after investigation, it was altered into one under Sections 147, 148, 294(b), 307 and 149 IPC, since during investigation, it revealed that the petitioner is having licence for possessing the gun. Since the petitioner is a Security Guard, he is needed for gun for his day-to-day avocation.
9. At this juncture, it is appropriate to incorporate paragraph No. 7 of the judgment in MANU/SC/1110/2002 : CDJ 2003 SC 061 [Sunderbhai Ambalal Desai v. State of Gujarat], which reads thus:
"7. In our view, the powers under Section 451 Cr.P.C., should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody.
3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further change of tampering with the articles."
10. Applying the said ratio to the case on hand, if this Court analyses the facts of the present case, it is clear that since the petitioner is having gun licence and he is a Security Guard by profession, he is entitled for interim custody of the gun.
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
Crl. O.P. (MD.) No. 17004 of 2015
Decided On: 03.09.2015
Devendharan Vs. State
Hon'ble Judges/Coram:
R. Mala, J.
Citation: MANU/TN/2867/2015
1. Challenge in this Petition is to the order dated 12.12.2012 in Crl.R.P. No. 35/2012, whereby and whereunder, the learned Principal Sessions Judge, Madurai, dismissed the revision filed by the petitioner, confirming the order dated 10.10.2012 in Cr.M.P. No. 8646/2012, on the file of learned District Munsif -cum- Judicial Magistrate No. 1, Usilampatti.
2. Heard both sides.
3. The learned counsel for the petitioner would submit that due to quarrel between the petitioner and his neighbour, a case has been registered for the offences punishable under Sections 147, 148, 294(b), 307 IPC r/w Section 25 of Arms Act. The respondent police seized the gun from the petitioner, since it was used for the commission of offence. However, after investigation, it has been altered into one under Sections 147, 148, 294(b), 307 and 149 IPC, deleting the Arms Act. The petitioner is a Security Guard and he is also having the licence to possess gun. Therefore, he filed an application under Section 451 Cr.P.C. seeking interim custody of gun. However, the trial Court, without considering the fact that the petitioner is the licence holder, dismissed the petition, against which, he filed a revision, which was also ended against him. Hence, the petitioner is before this Court.
4. Adding further, the learned counsel would submit that the petitioner is the licence holder and since he is a Security Guard, he is entitled to the interim custody of the gun for his avocation.
5. To substantiate his contention, the learned counsel relied upon a decision of the Supreme Court in MANU/SC/1110/2002 : CDJ 2003 SC 061 [Sunderbhai Ambalal Desai v. State of Gujarat]. In the said case, the Apex Court has held as to what procedures to be followed while granting interim custody of the material objects till the disposal of the cases. Contending that the gun shall not be retained till the disposal of the case, he prayed for setting aside the impugned orders.
6. Resisting the same, the learned Government Advocate (Criminal side) would submit that even though the petitioner is a licence holder, he used the gun for commission of offence and hence, he is not entitled to the interim custody. The material object retained is needed for the purpose of marking it as document and after considering the same only, the Trial Court dismissed the petition seeking interim custody and the Revisional Court has also rightly dealt with the same. Therefore, the impugned orders do not call for any interference.
7. I have considered the rival submissions made on either side and perused the typed-set of papers.
8. Admittedly, the case has been registered for the offences under Sections 147, 148, 294(b), 307 IPC r/w Section 25 of Arms Act, after investigation, it was altered into one under Sections 147, 148, 294(b), 307 and 149 IPC, since during investigation, it revealed that the petitioner is having licence for possessing the gun. Since the petitioner is a Security Guard, he is needed for gun for his day-to-day avocation.
9. At this juncture, it is appropriate to incorporate paragraph No. 7 of the judgment in MANU/SC/1110/2002 : CDJ 2003 SC 061 [Sunderbhai Ambalal Desai v. State of Gujarat], which reads thus:
"7. In our view, the powers under Section 451 Cr.P.C., should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody.
3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further change of tampering with the articles."
10. Applying the said ratio to the case on hand, if this Court analyses the facts of the present case, it is clear that since the petitioner is having gun licence and he is a Security Guard by profession, he is entitled for interim custody of the gun.
11. In the result, the Criminal Original Petition stands allowed in the following terms:
• The impugned orders are set aside.
• The petitioner is directed to give an undertaking before the Court concerned to the effect that whenever the Court concerned directs him to produce the gun, he shall produce the same.
• On receipt of such undertaking, the Court concerned is directed to return the gun to the petitioner.
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