Allowed

State of Karnataka v. Jayapal S/O N. Jamakhandi

Karnataka HC7 Dec 2022CRL.RP/100203/2019

Case brief

AI extract

What is this about?

High Court allowed State's revision petition against the Session Court's order that discharged a bank guarantee condition. Court held Section 362 Cr.P.C. does not bar imposing a bank guarantee under the relevant Rules after the fact, as recovery of property is a substantive right of the State. Petitioner directed to furnish guarantee.

What did the court decide?

Petitioner to furnish bank guarantee for Rs. 8,00,000/- within four weeks.

State of Karnataka Vs Jayapal S/O N. Jamakhandi — Property and Title | Karnataka HC (2022)

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CRL.RP No. 100203 of 2019

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH

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CRIMINAL REVISION PETITION NO. 100203 OF 2019

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BETWEEN:

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STATE OF KARNATAKA REPRESENTED BY THE GEOLOGIST, OFFICE OF THE MINES AND GEOLOGY DEPARTMENT, DHARWAD, DIST- DHARWAD, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHAWAD BENCH.

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…PETITIONER (BY SRI. RAMESH CHIGARI, HCGP)

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AND:

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JAYAPAL S/O N. JAMAKHANDI AGE- 40 YEARS, OCC- BUSINESS, R/O- TERDAL, TQ- JAMAKHANDI, DIST- BAGALKOT.

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…RESPONDENT

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(BY SRI. VISHWANATH HEGDE, AMICUS CURIAE)

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397(3) R/W SEC.401 OF CR.P.C., PRAYING TO CALL FOR RECORDS IN CRIMINAL REVISION PETITION NO.64/2018 DATED 05/06/2018 ON THE FILE OF IV ADDL. SESSIONS JUDGE, DHARWAD AND TO SET ASIDE THE ORDER DATED 05/06/2018 PASSED BY THE IV ADDL. SESSIONS JUDGE, DHARWAD IN CRIMINAL REVISION PETITION NO.64/2018 BY CONFIRMING THE ORDER PASSED BY THE TRIAL COURT IN C.C.NO.1383/2018 DATED 08/05/2018 BY THE JMFC COURT, DHARWAD.

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CRL.RP No. 100203 of 2019

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Though the matter is listed for admission, with the consent for the learned counsel for the respective parties, it is taken up for final disposal.

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This Criminal Revision Petition is filed by the State, being aggrieved by the order dated 05.06.2018 in Crl.R.P.No.64/2018, on the file of learned IV Additional District and Sessions Judge, Dharwad.

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Briefly stated facts of the case are as under:-

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One Mahesh M. Goudanyak, Officer of Mines and Geological Department has filed a complaint under Section 200 of Cr.P.C. against accused No.1 and 2 for the offence punishable under Rule 42 of the Karnataka Minor Mineral Concession Rules, 1994 r/w Rules 43(5), (6), (7), (8), (9), (10), (11), 44(3) and (4) of the Karnataka Minor Mineral Concession (Amendment) Rules, 2017 (for short, ‘MMDR Rules’) and case has been registered in C.C.

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CRL.RP No. 100203 of 2019

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No.1383/2018 on the file of learned IV Additional Senior Civil Judge and JMFC, Dharwad. Respondent filed an application seeking for releasing of the vehicle for interim custody.

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The Trial Court after hearing the parties, has ordered to release the vehicle by imposing condition No.1 as reads thus:-

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“1. He shall execute indemnity bond for Rs.8,00,000/- with a surety for like sum.”

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Further, the Trial Court taken the matter on 08.05.2018, imposed additional condition which reads thus:

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“The applicant further to execute indemnity bond for a sum of Rs.17,00,000/- (i.e., total value of the vehicle of Rs.25,00,000/- and to furnish bank guarantee for double the amount of vehicle i.e., for Rs.50,00,000/-.)”

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Being aggrieved by the said order passed by

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the Trial Court, the petitioner-owner of the vehicle, preferred revision petition before the Sessions Court. The

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CRL.RP No. 100203 of 2019 Revisional Court modified the condition by setting aside the subsequent condition that the applicant further to execute indemnity bond for Rs.17,00,000/- and furnish bank guarantee for double the amount of vehicle i.e., for Rs.50,00,000/- has been set aside.

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Heard Sri. Ramesh Chigari, learned HCGP appearing on behalf of the appellant and Sri Vishwanath Hegde, learned Amicus Curiae for the respondent.

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Sri. Ramesh Chigari, learned HCGP for the State submits that there is an amendment to the Act and Rules.

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As per the amendment of Rule 43 (8) of MMCR Rules stipulated a condition of imposing bank guarantee to release the vehicle to the interim custody of the owner. The order passed by the Sessions Court/revisional Court is contrary to the Rules framed under the statute. Therefore, the same is unsustainable.

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Per contra , learned Amicus Curiae justifying the order passed by the revision court submits that the Trial

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CRL.RP No. 100203 of 2019

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Court committed an error by imposing bank guarantee after order has been passed. It is further submitted that the criminal Court ought not to have rectified the orders passed by the same Court.

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It is further submitted that, the Trial Court on 07.05.2018 passed an order by imposing indemnity bond and directed to release the vehicle. However, on the next day, without filing necessary application by he prosecution, advanced the case and imposed additional condition which is prohibited and same Court ought not to have rectified or imposed such condition once the order is signed by the Magistrate. The order passed by the Magistrate is contrary to Section 362 of Cr.P.C. Therefore, imposing double the indemnity bond and bank guarantee for Rs.50,00,000/- is unsustainable.

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After having heard learned counsel for parties, it is relevant to note the provisions of sub Rule 8 of Rule 43 of the Rules, 1994 which read thus:

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CRL.RP No. 100203 of 2019

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43.Checkposts and checking of minerals in transit:-

(1) xxx

(2) xxx

(3) xxx

(4) xxx

(5) xxx

(6) xxx

(7) xxx

(8) Whenever an order of

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confiscation in respect of minor mineral seized under sub-rule(6) is made the confiscating officer shall give an option to the owner or driver or person in charge of the vehicle to pay the amount as required under sub-rule (5) in lieu of such confiscation. In case of failure of the Driver, owner or person in charge of the vehicle to exercise such option, the confiscated material may be disposed of by the officer by auction sale;

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Provided that no such minor mineral confiscated under sub-rule(6), shall be disposed of by the confiscating officer before expiry of three days from the date of such confiscation and, till such time option shall

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CRL.RP No. 100203 of 2019

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remain with the owner or person in charge of the vehicle to carry the minor mineral after paying the penalty assessed.

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The order passed by the Trial Court appears to be erroneous for the reason that once the order is singed by the Magistrate, even though if it is wrong he cannot rectify the mistake by passing another order. The provisions of Section 362 makes it clear that no Court, when it has signed its judgment or final order disposing of the case, shall alter or review the same except correct a clerical or arithmetical error. Such being the fact, the order passed by the Trial Court is unsustainable.

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In the present case, this Criminal Revision Petition is filed by the State seeking to set aside the order passed by the revisional Court. On perusal of the Rule 43(8) of MMDR Rules is very clear that the statute prescribed the condition of imposing bank guarantee to release the vehicle to the interim custody of the owner.

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CRL.RP No. 100203 of 2019

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The revisional Court committed an error in applying its mind and set aside the order of the Trial Court. The order of the Trial Court technically may be wrong but additional condition is required to be imposed. The order of the revisional court by setting aside the order though it is correct, however, not imposing bank guarantee by the revisional Court or giving direction to imposing bank guarantee to the Trial Court appears to be erroneous. Therefore, the order of the revisional Court is required to be set aside.

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In the light of the observations made above, it is appropriate at this stage, to allow the criminal revision petition by modifying the conditions. Hence, I proceed to pass the following order:

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ORDER

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The Criminal Revision Petition is filed by the State is allowed.

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CRL.RP No. 100203 of 2019

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The order dated 05.06.2018 passed by the learned IV Additional District and Sessions Judge, Dharwad in Crl.R.P.No.64/2018 is modified as under:

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The petitioner shall furnish bank guarantee for the amount of Rs.8,00,000/- within a period of four weeks from the date of receipt of copy of this order.

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The assistance rendered by the learned Amicus Curiae is appreciated and placed on record.

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The Legal Services Authority, High Court of Karnataka is directed to pay remuneration of Rs.5,000/- to the learned Amicus Curiae .

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Registry is directed to send the records to the Trial Court along with a copy of this order for necessary compliance, if record is received.

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Sd/JUDGE

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Vmb/NAA List No.: 1 Sl No.: 6

State of Karnataka v. Jayapal S/O N. Jamakhandi

Case brief

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State of Karnataka v. Jayapal S/O N. Jamakhandi

Case brief

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