Allowed

Komal v. State of U.P. and Another

Allahabad HC18 May 2023A482/8409/2023

Case brief

AI extract

What is this about?

The High Court allowed an application under Section 482 Cr.P.C. to quash an order denying release of a tractor seized during a criminal case. Applying Sunderbhai Ambalal Desai, the Court ordered the release of the vehicle subject to conditions preventing its disposal or alteration for non-agricultural use.

What did the court decide?

Impugned order quashed; tractor released to applicant subject to conditions prohibiting alienation, alteration, or use in non-agricultural transportation.

Komal Vs State of U.P. and Another — Service and Employment | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:108595

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 8409 of 2023

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Applicant :- Komal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Karan Singh Yadav Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This application has been filed seeking to quash the impugned order dated 31.01.2023 passed by the Chief Judicial Magistrate, Jhansi in Case No. 17676 of 2022, State v. Komal (arising out of Case Crime No. 163 of 2022) under Sections 379 and 411 I.P.C., Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 207 of the Motor Vehicles Act, 1988, Police Station - Babina, District - Jhansi.

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The applicant is the registered owner of a tractor bearing no. UP 94 L 5411. It appears that the said tractor was apprehended in connection with Case Crime No. 163 of 2022, under Sections 379 and 411 I.P.C., Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 207 of the Motor Vehicles Act, 1988, Police Station - Babina, District - Jhansi.

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The allegation against the applicant is that the tractor was employed in carrying illegally mined sand without a number plate. The submission of the learned Counsel for the applicant is that the allegation regarding the absence of the number plate is absolutely unfounded as also the one regarding carrying illegally mined sand. It is submitted that the offence under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 could not have been investigated by the Police, as that can only be prosecuted on the complaint of a competent officer duly authorized, either by the Central

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Government or the State Government.

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It is argued by learned Counsel for the applicant that he is the registered owner of the tractor and if found guilty at the trial, he will suffer the punishment mandated by law and awarded by the Court. However, to detain the tractor at the Police Station, which is meant for agricultural purposes and to be employed gainfully, is against the settled principles of law laid down by the Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283. The learned Chief Judicial Magistrate before whom an application to release the tractor was laid, has rejected the same on the specious ground that proceedings in the case against the applicant have been stayed by this Court in Application under Section 482 No. 39600 of 2022 vide order dated 19.01.2023.

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It is submitted that the stay of further proceedings in the criminal case instituted against the applicant is no ground for the Magistrate not to pass orders on an application for release of the tractor. It is this order of Chief Judicial Magistrate, Jhansi dated 31.01.2023 that is impugned in the present application under Section 482 Cr.P.C.

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Learned A.G.A. has opposed the motion to admit this application to hearing. Despite time being granted to file a counter affidavit vide order dated 14.03.2023, no counter affidavit has been filed.

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Admit.

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Heard forthwith.

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Upon hearing learned Counsel for parties, this Court is of opinion that the Magistrate was not right in declining to pass orders on the release application, inasmuch as, what is stayed before him are further proceedings of the trial against the applicant arising out of the crime registered against him,

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wherein the Police have put in a challan after investigation. The release matter is in no way barred by the order passed by this Court in Application under Section 482 No. 39600 of 2022. What is important is that the applicant is the registered owner of the tractor, which is said to be involved in the crime regarding which the applicant is facing charges. This Court has entertained a challenge to the prosecution itself and it is not known if the prosecution would be quashed by this Court or the applicant has to face his trial. Even if the applicant is tried and convicted, in that event, the Court can make necessary orders regarding disposal of the case property according to law, unless there is any particular provision in any of the special statutes that may be invoked in the case regarding disposition of the case property.

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Pending trial to detain a tractor at the Police Station is no act of wisdom. The Police can well photograph the vehicle in its existing condition and that may form part of the evidence to be laid before the Court, if the applicant is ultimately tried. The Supreme Court in Sunderbhai Ambalal Desai (supra) held that if a vehicle pending trial is kept parked at the Police Station, it is bound to deteriorate and in time reduced to junk. Even otherwise, the tractor is a vehicle employed in agriculture and much useful in many ways connected with agricultural. To immobilize such an asset is neither warranted by law nor an act of sagacity of any kind. However, what has to be safeguarded is that the tractor is available to the Court if the matter is tried and produced, if and when required by the Trial Judge. It is also to be ensured that the tractor is not disposed of, destroyed or changed regarding its physical features.

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In the circumstances, this Court is of opinion that this application deserves to succeed. This application succeeds and is allowed . The impugned order dated 31.03.2023 passed by the

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chief Judicial Magistrate, Jhansi in Case Crime No. 163 of 2022 is quashed . The application for release stands allowed and the tractor bearing no. UP 94 L 5411 ordered to be released in favour of the applicant, its registered owner forthwith, subject to the following condition:

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The applicant shall not alienate or dispose of the tractor, until conclusion of the trial or orders of this Court terminating the trial in the pending Application under Section 482 Cr.P.C, if that be so. The applicant during the aforesaid period of time, shall not change the coat or the colour of the tractor or alter it in any manner and shall maintain it in its existing form without any modification to it.

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This order will, however, not prevent the applicant from carrying out repairs and maintenance on the vehicle, in order to keep it in good repair. The applicant will also be free to utilize the tractor for agricultural operations, but will not utilize it for the purpose of transportation of anything, not connected with agriculture.

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Let a copy of this order be communicated to the Chief Judicial Magistrate, Jhansi through the learned Sessions Judge, Jhansi and to the Senior Superintendent of Police, Jhansi by the Registrar (Compliance) with the direction that the order shall be carried out forthwith.

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Order Date :- 18.5.2023 Prashant D.

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Digitally signed by :- PRASHANT DWIVEDI High Court of Judicature at Allahabad

Komal v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Komal v. State of U.P. and Another

Case brief

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