IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 412 of 2010()
1. U.R.KOLEKAR, AGED 40, WORKING AS
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
2. BINU P.MICHEAL, S/O.BABY,
For Petitioner :SRI.B.S.SIVAJI
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :19/03/2010
O R D E R
V.K.MOHANAN, J.
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Crl. APPEAL No.412 of 2010
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Dated this the 19th day of March, 2010.
J U D G M E N T
This appeal is preferred by one Mr.U.R.Kolekar, now
working as Police Inspector, in Ghatkopar Police Station,
Ghatkopar West, Mumbai, who was examined as PW11 in
S.C.239/02 of the Addl. Sessions Court (Ad hoc-I), Kottayam.
The present prayer in this appeal is to set aside the order dated
20.1.2005 in Crl.M.P.No.10/05 in S.C.239/02 and to issue a
direction to release 9 MM Service Pistol, bearing
No.B.C.P.1984, MFG 16111346 and 30 bullets to the appellant,
which are identified and marked as M.Os.1, 3, 6 and 7 in the
above sessions case. According to the appellant, as he is
presently working as Police Inspector, the above service pistol
is absolutely necessary to discharge his official duty as a police
official.
2. Heard the counsel for the appellant and the Public
Prosecutor.
3. This court by an order dated 24.2.2010 in
Crl. APPEAL No.412 of 2010
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Crl.M.A.No.1567/2010 condoned the delay of 1438 days that
occurred in filing the present appeal.
4. The learned Public Prosecutor, on instructions,
submitted that, he has no objection in allowing the appeal by
incorporating adequate conditions.
5. Going by the judgment in the main case in which the
above material objects are involved, it can be seen that when
disposing the case, the learned Sessions Judge has already
issued a direction to release M.Os.1, 3, 6 and 7 to PW11, the
appellant herein. Though there was a specific direction in this
regard, the same was not done and hence the appellant
approached the court below by filing Crl.M.P.No.10/05. The
learned Sessions Judge dismissed the above petition on the
ground that, the appeal intimation was received from this Court
and therefore the application for releasing the pistol is premature
as the appeal is pending for consideration of this court.
6. I have carefully perused the judgment of the Sessions
Court which is under challenge in Crl.A.No.302/04 at the
Crl. APPEAL No.412 of 2010
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instance of the sole accused, who faced the trial and convicted
him for the offence punishable u/s.397, 307 and section 3 r/w.25
(1)(a) of Indian Evidence Act. It is pertinent to note that by the
above judgment, on the termination of the trial, the Trial Court
has already ordered the release of the above mentioned
material objects in favour of the appellant. In order to dispose
the Criminal Appeal No.302/04 preferred by the accused, I am of
the view that presence and custody of those material objects are
not absolutely necessary and not indispensable. Even if at the
time of the disposal of the appeal, those material objects are
required, appropriate condition can be imposed for the
production of the same and accordingly those material objects
can be released in favour of the appellant, especially when the
appellant, who is presently working as Inspector of Police in
Ghatkopar Police Station, Mumbai and the above materials are
absolutely necessary for discharging his official duty effectively
in a city like Mumbai, a city targeted by the extremist.
In the result, this appeal is allowed with a direction to
Crl. APPEAL No.412 of 2010
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release M.O.s.1, 3, 6 and 7 which are now under the custody of
the Court of Addl. Sessions Judge (Ad hoc – I), Kottayam, in
S.C.No.239/02, to the appellant on his executing an undertaking
to the satisfaction of the Addl. Court (Ad hoc-I), Kottayam, that
he will produce the same as and when required and on further
condition that the same will not be alienated or altered and to
keep the same intact, subject to the departmental direction, if
any, in that regard.
This criminal appeal is allowed accordingly.
V.K.MOHANAN,
Judge.
ami/