IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1914 of 2009 1. BINAY KUMAR RAY @ MUNNA RAY s/o late Jagarnath Roy. 2. Ram Niwas Roy s/o late Bishwanath Roy. Both of village- Parsasth Dih, P.S. Sabour, District- Bhagalpur. - - - ---Petitioenrs Versus 1. THE STATE OF BIHAR through District Magistrate, Bhagalpur. 2. The District Magistrate, Bhagalpur. 3. The Superintendent of Police, Bhagalpur. 4. The Incharge, Court Malkhana, Bhagalpur. 5. The Officer Incharge, Sabour P.S. , Bhagalpur, District- Bhagalpur. ----------- 3 27.11.2009 Learned counsel for the petitioner restricts this application only in respect of petitioner no.1 and does not press this application in respect of petitioner no.1. By this application the surviving petitioner no.2 i.e. Ram Niwas Roy has prayed for release of his arms, which had been seized in respect of Sabaur P.S.Case no. 153 of 1988 giving rise to Sessions Trail no.385 of 1989. Petitioner asserts that in the said trial, the petitioner was acquitted though one Vinjay Kumar Rai @ Munna Rai was convicted. Co accused, who was convicted , has preferred an appeal to this Court i.e. Cr. Appeal no. 167 of 2005, which is pending before this Court. Consequent to his acquittal, petitioner applied to the District Magistrate –cum- Collector, Bhagalpur for restoration of his arms licence and release of his arms. It seems that the authorities have no objection in releasing of arms to the petitioner upon his acquittal but they have asked the petitioner to move the criminal Court in which it lies seized. Petitioner accordingly moved an application 2 before the Sessions Court for release of his arms, which has been turned down , by order dated 15.10.2009, on the ground that as criminal appeal has been preferred by the convicted co accused and is pending before the High Court all records have been sent to the High Court and there is no record with the Sessions Court. It is this order which is now a subject matter of challenge in this writ petition. In my view, the course procedure of being adopted in this case is of filing an application in terms of Section 452 Cr.PC. before the trial Court at the first instance. That was rightly done. The trial Court having expressed its inability, it is now for the petitioner to file an appeal from that order, which appeal would lie to this Court in terms of Section 454 Cr.P.C. Once such an appeal is filed, this Court would be in a position to call for records of Criminal Appeal, which is pending before it and examine the matter whether the arms of the petitioner should be released consequent to petitioner’s having been acquitted and his arms having been restored. I grant leave to the petitioner to file an appropriate appeal against the order of the Sessions Court dated 15.10.2009 declining to release the arms before this Court which could be dealt with in accordance with law. By granting leave aforesaid, the writ petition stands disposed of. Singh (Navaniti Prasad Singh, J.)