SHIV PRAKASHversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 7097 of 2023

Shiv Prakash
                                                               .....Appellant(s)
                                    Versus
State of U.P. and Another
                                                             .....Respondent(s)

Counsel for Appellant(s)             :   Ajay Pratap Singh, Vijay Tripathi
Counsel for Respondent(s)            :   G.A., Rajeev Kumar

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.
1. Heard Sri Ajay Kumar Pandey, learned counsel for the appellant; Sri
Rajeev Kumar, learned counsel for the opposite party and Sri Rahul
Asthana, learned A.G.A. for the State and perused the material available on
record.

2. This is an appeal under Section 454 of the Code of Criminal Procedure by
the appellant, Shiv Prakash, who was an accused in Sessions Trial No.192 of
2012.

3. The facts of the case in brief are that the appellant claims to be a bonafide
purchaser of the gold ornaments, that is, four bangles, one necklace. It is
stated that the first information report has been lodged against the appellant
as Case Crime No.109 of 2013. According to prosecution case, the first
information report was lodged by Hari Om in which it is alleged that on
3.4.2012 at about 12:30 P.M. co-accused persons namely Hema, Babbu @
Pradeep and Tara @ Tariya came and intercepted the motorcycle of the
complainant and on the point of gun snatched the ornaments from the sister
of the complainant and ran away. It is further stated that the appellant was
not named in the first information and his name has came into light during
the course of investigation. The learned trial after considering the evidence
has passed the judgement and order dated 2.2.2018 in Session Trial No.192
of 2012, whereby the appellant has been acquitted by the learned trial and
his involvement in the offence was not found by the learned trial Court. It is
further stated that soon after the incident the ornaments in question of the
appellant was taken into custody by the learned trial Court and it was treated
as case property by the learned trial Court. Now after passing the judgement
and order by the learned trial Court the appellant has been acquitted.
Thereafter, after conclusion of the trial, the appellant applied for release of
his gold ornaments by way of an application filed under Section 452 Cr.P.C.
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The said application has been rejected by the learned trial court only on the
ground that the ornaments in question are belonging to one Shalini (sister of
the complainant) and appellant has not produced any stock register, bill or
cash memo in support of his claim. Therefore, in view of this, it was not
open to it to release the ornaments in question. In these circumstances, the
appellant had file this appeal under Section 454 Cr.P.C. before this Court.

4. Sri Rajeev Kumar, learned counsel appearing on behalf of the Hari Om
Singh (complainant of the case) has fairly submitted that P.W.-2/victim who
is the sister of the informant was examined before the learned trial Court and
during trial she has stated that the ornaments in question were not related to
her, reference in this regard is made to paragraph nos.6, 11 and 13 of the
counter affidavit. Thus, he has no objection in case ornaments in question is
released in favour of the appellant.

5. The contention of the appellant's counsel is that the ornaments in question
were purchased by the appellant and are material exhibit in respect to
Sessions Trial No.192 of 2012, against which, no criminal appeal has been
filed and the appellant though was an accused, but was acquitted by learned
trial Court.

6. His further submission is that there is no impediment in releasing the
ornaments in question in favour of the appellant as the same belongs to the
appellant and he is ready to give an undertaking or the Court may impose a
condition that he would not make any changes to the ornaments in question.

7. Learned counsel for the appellant has placed before us a judgment of
Hon'ble the Supreme Court in Sunderbhai Ambalal Desai vs. State of
Gujarat reported in 2002 (10) SCC 283. Relevant extracts of which are
being quoted herein below:-

     "12. For this purpose, if material on record indicates that such articles
     belong to the complainant at whose house theft, robbery or dacoity has
     taken place, then seized articles be handed over to the complainant after:

     (1) preparing detailed proper panchnama of such articles;

     (2) taking photographs of such articles and a bond that such articles
     would be produced if required at the time of trial; and

     (3) after taking proper security.

     13. For this purpose, the court may follow the procedure of recording
     such evidence, as it thinks necessary, as provided under Section 451
     CrPC. The bond and security should be taken so as to prevent the
     evidence being lost, altered or destroyed. The court should see that
     photographs of such articles are attested or countersigned by the
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                                 3

     complainant, accused as well as by the person to whom the custody is
     handed over. Still however, it would be the function of the court under
     Section 451 CrPC to impose any other appropriate condition."

8. Learned counsel for the appellant says that the aforesaid decision
pertained to release of property under Section 451 Cr.P.C.

9. Sri Rahul Asthana, learned A.G.A. has opposed the appeal, but could not
dispute the submissions made by the learned appellant and learned counsel
for the opposite party.

10. Having considered the matter from all respective angles and having
heard learned counsel for the parties after taking into consideration the
judgment referred hereinabove, I am of the view that the appellant though an
accused in the trial, but was acquitted and no appeal challenging his acquittal
has been filed, secondly, on being asked, learned A.G.A., Sri Rahul Asthana
fairly submitted that there is no such order under any provision of law
requiring the ornaments to be confiscated for any reason and as the trial
court has rejected the application of the appellant under Section 452 Cr.P.C.
only for the reason that the ornaments in question are belonging to Shalini
(sister of the complainant) and appellant has not produced any stock register,
bill or cash memo in support of his claim, therefore, it was handicapped and
did not have jurisdiction to consider the application, I am of the view that
there is no impediment in releasing the ornaments in favour of the appellant
in view of the fact that the appellant was acquitted by the learned trial Court
and no appeal has been filed against the order of acquittal. Moreover, the
opposite party has not claimed the ornaments in question and raised no
objection in release of the ornaments in question. There is no order on record
for confiscation of the ornaments-in-question under any law/ statute. No
other reason has been putforth by learned A.G.A. for not releasing the
ornaments in question. Trial has already concluded, and no appeal against
the said order has been filed, therefore, I see no reason to decline release of
the ornaments to the appellant subject to certain conditions.

11. The ornaments in question shall be released in favour of the appellant
subject to the following conditions:-

     (i) Proper panchnama of the ornaments in question shall be
     prepared before its release.
     (ii) Coloured photographs of the ornaments in question shall be
     taken from all possible angles.
     (iii) The appellant shall not make any changes to the ornaments in
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                                         question including any part/component of the ornaments in
                                         question nor sell or alienate it in any manner without the
                                         permission of this Court.
                                         (v) The appellant shall furnish proper security in the form of two
                                         sureties of the like amount to the satisfaction of the court
                                         concerned, to secure the aforesaid release and production, if
                                         required.
                                         (vi) The coloured photographs of the ornaments in question
                                         would be attested and countersigned by the appellant herein.
                                         (vii) Photocopy of the documents prepared in this regard shall be
                                         sent to this Court by the learned trial court for being kept on the
                                         records of this appeal.

                                    12. In view of the above, the present criminal appeal is allowed.
                                    Consequently, the order dated 31.10.2022 passed by the learned Additional
                                    Sessions Judge/Special Judge (Dacoity Affected Area), Court No.3, Agra
                                    rejecting the application is hereby set aside.

                                    March 25, 2026
                                    Dev
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
DEV PRAKASH
High Court of Judicature at Allahabad