Allowed

Sher Mohd. v. State of Rajasthan through Pp

Rajasthan HC26 Apr 2017CRLMP/1321/2017

Case brief

AI extract

What is this about?

High Court allowed a petition under Section 482 CrPC quashing an order rejecting surrender of seized tractor and compressor drill machine, directing the trial court to release the assets subject to undertaking and bonds, noting the absence of initiated confiscation proceedings.

What did the court decide?

Impugned order dated 16.02.2017 quashed; Petitioner to file undertaking and surety bonds; Trial Court directed to release tractor and machine to registered owner.

Sher Mohd. Vs State of Rajasthan through Pp — Property and Title | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR.

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S.B. Criminal Miscellaneous (Petition) No. 1321 / 2017

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Sher Mohd. S/o Shri Chand Khan B/c Mev, R/o Khijarpur, Bhiwadi, Tehsil Tijara, Alwar.

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----Petitioner

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Versus

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State of Rajasthan through P.P.

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----Respondent

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For Petitioner(s) : Ms. Sunita Vashistha

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For Respondent(s) : Mr. Rishiraj Singh, PP

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HON'BLE MR. JUSTICE DEEPAK MAHESHWARI

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Order

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26/04/2017

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Petitioner has filed this petition under Section 482 of the Cr.P.C. challenging the order dated 16.2.2017 passed by Judicial Magistrate, Bhiwadi, District Alwar rejecting the application for supurdgi of Tractor bearing registration No.RJ-02-RB-3101 and compressor drill machine in FIR No.422/2013 registered at Police Station Bhiwadi, Phase-III, District Alwar for offence under Sections 41 and 42 of Rajasthan Forest Act, 1953 (for short, “the Act of 1953”) and Section 3 of PDPP Act.

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Learned counsel for the petitioner has contended that learned trial Court has wrongly rejected the application filed for

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supurdgi of Tractor bearing registration No.RJ-02-RB-3101 and compressor drill machine, despite the fact that the proceedings under Section 55 of the Act of 1953 for confiscation of these articles could be initiated only upon the conviction of the offender for the offence pertaining to the Forest Act subject to the provisions of Section 52 (A), (B) and (C) of the Act of 1953.

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Learned counsel for the petitioner further submitted that in view of the aforesaid facts, petitioner is entitled for the custody of the Tractor bearing registration No.RJ-02-RB-3101 along with compressor drill machine. There is no other claimant. No useful purpose will be served in keeping the vehicle in police custody. It may deteriorate its condition, which will be a national wastage. He has placed reliance upon the law laid down in the case of Sunderbhai Ambala Deasi Vs. State of Gujarat reported in AIR 2003 SC 638.

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Learned Public Prosecutor has raised this objection that the order rejecting the application filed under Section 451 Cr.P.C. is revisable one and hence, this criminal misc. petition is not maintainable. In reply, learned counsel for the petitioner has referred the judgment of coordinate Bench of this Court rendered in Smt. Gabboo Alias Smt. Meera Vs. State of Rajasthan & Anr., reported in 1991 (1) WLC (Raj.) p.201 wherein it has been specifically held that order passed on the application under Section 451 Cr.P.C. is not revisable and Section 482 Cr.P.C is the

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only provision for interference by this Court. Hence, the objection raised by learned Public Prosecutor is not tenable.

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Learned Public Prosecutor has, however, fairly conceded that the petitioner has not been convicted for the offence pertaining to the Forest Act.

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In light of above, it is clear that there was no bar applicable to learned trial Court to exercise its jurisdiction to release the Tractor bearing registration No.RJ-02-RB-3101 and compressor drill machine. Division Bench of this Court has held in Harun Vs. State of Raj. (DB Criminal Misc. Petition No.76/2014) decided on 23.09.2015 as below :-

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“21. We accordingly hold that vehicle seized under the provisions of the Rajasthan Forest Act, 1953 cannot be released during the pendency of trial on supurdgi to the registered owner by the Magistrate, where the trial is pending, in view of specific bar to jurisdiction of Court under Section 52C of the Act. But, the bar to jurisdiction operates only when a Magistrate receives intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation. ”

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In view of above, the bar was not operative on the jurisdiction of trial Court as the confiscation proceedings have not been initiated in respect of the said vehicle and machine.

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Having considered the arguments advanced, this Court is of the considered view that since no statutory bar is applicable on

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the powers of learned trial Court to release the vehicle and

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machine involved in this case, keeping in view the law laid down by the Hon’ble Supreme Court in the case of Sunderbhai Ambala Desai (supra), the tractor and the compressor drill machine should have been released in favour of the registered owner of the same. In order to ascertain that released vehicle and machine will not be involved in the offence of similar nature in future, a condition may be imposed upon the petitioner that if the said tractor and compressor drill machine is found involved in any offence punishable under the Rajasthan Forest Act, those will be liable to be seized by the concerned authority. Undertaking to this effect will be submitted by the petitioner/applicant before the trial Court.

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In view of above, the impugned order dated 16.02.2017 is quashed and set aside with the direction to the learned trial Court to consider the application afresh if filed by the petitioner before it and to release the tractor and compressor drill machine to its registered owner subject to filing the undertaking stated above and the supardginama and surety bonds to the satisfaction of the Court below.

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The misc. petition stands allowed accordingly.

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(DEEPAK MAHESHWARI), J.

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arun/PS

Sher Mohd. v. State of Rajasthan through Pp

Case brief

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Sher Mohd. v. State of Rajasthan through Pp

Case brief

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