Basant Kumar @ Nathu Ram Vs State Of U.P. And 3 Others

Allahabad High Court (Single Judge)

CRIMINAL MISC. CASE, 1287 of 2015, Judgment Date: Apr 23, 2015

Case :- CRIMINAL REVISION No. - 1287 of 2015
Revisionist :- Basant Kumar @ Nathu Ram
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- J.H. Khan,Imran Khan,W.H.
Khan
Counsel for Opposite Party :- Govt.Advocate
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the revisionist and learned A.G.A.
in opposition.
By way of instant revision revisionist has challenged the
impugned order dated 25.02.2015 passed by the Additional
Chief Judicial Magistrate- Ist Banda in Criminal
Miscellaneous Application No.22 of 2015, State Vs. Basant
Kumar and Nathu Ram, whereby learned Magistrate has
rejected the application of the revisionist for the release of
the Tractor bearing Registration No. U.P. 90 J 3237 along
with Trolley with observation that he lacks the requisite
jurisdiction to pass order for release of the vehicle under
Section 4/21 of the Mines and Mineral (Regulation and
Development) Act, 1957.
Learned counsel for the revisionist submits that in this case
aforesaid Tractor Trolley was wrongly detained on 9.2.2015
at about 3.15 p.m. by the Sub-Divisional Magistrate, Banda,
whereupon an application for release of the same was
moved by the revisionist, who claimed himself to be the
owner of the aforesaid tractor bearing Registration No. U.P.
90 J 3237 along with Trolley. The Trolley after being
detained was handed over to the police for safe keeping and
the revisionist was challenged under Section 21(1) of the
Mines and Minerals (Regulation & Development) Act, 1957
and the U.P. Mines & minerals (Concession) Rules, 1963,
whereas, no such offence was ever made out and the
vehicle in question was wrongly detained and given in
custody of the police. Application for release along with
necessary documents were moved before the learned
Magistrate on 10.2.2015, whereupon, learned Magistrate
was of the opinion that he lacks the requisite jurisdiction to
make an order for release of the vehicle in question and
rejected the application of the revisionist. Learned counsel
adding that this rejection was in ignorance of the relevant
provisions of the Act. It is not always necessary that a
complaint should always be moved in such cases by the
prosecution within stipulated period before the court
concerned, and then only court concerned can exercise
jurisdiction in the matter and may take up the case of
release of the concerned vehicle. In cases where no such
application was moved within the specified period by the
detaining authority/prosecution, the court ipso facto may
exercise jurisdiction taking into consideration question of
release of the vehicle concerned and may pass appropriate
consequential order. In support of his submission learned
counsel placed reliance on the case of M. Esakki Pandi
Versus Revenue Divisional Officer, Inspector of Police,
Tahsildar, (LAWS (MAD)-2012-9-21/ TLMAD-2012-0-1973.
In this case also under similar situation no complaint was
moved within the specified period by the prosecution still the
matter was considered to be within jurisdiction of the court
concerned in the absence of presentation of any such
complaint and competent orders were passed for release of
the vehicle concerned. Learned counsel for the revisionist
further added that it is not obligatory for the court concerned
that jurisdiction in the matter of such release will be
exercised only when complaint is filed within 7 days period.
Learned counsel for the revisionist laid stress that in similarly
situated case order has been passed by Allahabad High
Court vide order dated 19.10.2010 in Criminal
Miscellaneous Writ Petition No.4253 of 2010, Smt. Sudha
Kesarwani Vs. State of U.P. and others, wherein also
comprehensive look was given to the relevant provisions of
Mines and Minerals (Regulation & Development) Act, 1957
and the U.P. Mines & minerals (Concession) Rules, 1963
and it was categorically observed that the Magistrate was
not justified in holding opinion that he lacks requisite
jurisdiction to pass order for release of the vehicle either
during trial or even before the commencement of the trial as
the complaint has not yet been filed by the competent
authority. Apart from above, in the aforesaid decision it was
also observed that under Section 457 Cr.P.C., learned
Magistrate had the jurisdiction to release the vehicle in
question in favour of its registered owner since there is no
other provision either in the Act (Mines and Minerals
(Regulation & Development) Act, 1957) or the Rules (U.P.
Mines & minerals (Concession) Rules, 1963) for release of
the vehicle; Any such order, refusing to release any detained
vehicle will be void-ab-initio. Moreso it would be erroneous
not to exercise jurisdiction at this juncture for release of the
vehicle, merely on ground that no complaint has been
moved in the case by the prosecution which alone would
confer jurisdiction in the case.
Since matter involves adjudication on point of jurisdiction
both the counsel for the respondent and the learned AGA
agree that this case may be disposed of finally at admission
stage without issuing any notice to opposite party nos.2, 3
and 4 as that would unnecessary prolong proceedings of the
case.
Learned AGA has supported the order impugned.
Considered the above submission and perused the record
as produced by the revisionist. It is obvious that in this case
tractor bearing Registration No. U.P. 90 J 3237 along with
Trolley was detained by the Sub-Divisional Magistrate and
the same was handed over for safe custody to the police
during course of seizure and application dated 10.2.2015
was moved before the Judicial Magistrate seeking release of
tractor and trolley, who specifically observed that in the
absence of any specific complaint moved by the authorities
concerned, he cannot exercise jurisdiction in the case. The
Magistrate treated presentation of complaint by the the
prosecution as sine qua non for exercise of jurisdiction in the
case.
Moot point involved for consideration in the case relates to
fact about exercise of jurisdiction by the Magistrate for
release of vehicle detained by the authorities under Act
(Mines and Minerals (Regulation & Development) Act, 1957)
or the Rules (U.P. Mines & minerals (Concession) Rules,
1963)? The above legal question may be answered after
analysis of the two cases cited by the counsel for the
revisionist.
In view of the observation made in aforesaid citation and
particularly the order passed vide order dated 19.10.2010 in
Criminal Miscellaneous Writ Petition No.4253 of 2010,
Smt. Sudha Kesarwani Vs. State of U.P. and others, it is
obvious that this Court has already gone in detail in the
matter while considering almost the identical and similar
case as to what has to be done and what not has to be done
in such cases for release of the vehicle.
The sum up conclusion follows that the Magistrate is vested
with jurisdiction to entertain such an application for release
of the vehicle even in absence of presentation of complaint.
Moreso, in the aforecited case of M. Esakki Pandi Versus
Revenue Divisional Officer, Inspector of Police, Tahsildar,
(LAWS (MAD)-2012-9-21/ TLMAD-2012-0-1973 also took
note of exercise of jurisdiction in such situation and
observed that jurisdiction can be exercised for release of
vehicle so obtained in cases where no complaint has bee
moved by the authority concerned within seven days of the
incident.
Pertinent to mention that under Section 457 Cr.P.C. learned
Magistrate had the jurisdiction to release the tractor in favour
of its registered owner for the reasons that in case the
vehicle is allowed unnecessarily to be detained at the police
station, there is every possibility that it will become junk and
rusted out and no useful purpose would be served and the
owner of the vehicle concerned will be put to lot of
embarrassment. Therefore, the Magistrate has to exercise
his jurisdiction on such release application for the detained
vehicle and the application cannot be thrown away merely
on ground of lack of jurisdiction.
In view of above, the order passed by the learned Magistrate
is void-ab-initio and the impugned order dated 25.02.2015
passed by the Additional Chief Judicial Magistrate- Ist Banda
in Criminal Miscellaneous Application No.22 of 2015, State
Vs. Basant Kumar and Nathu Ram is set aside and quashed
and the case is remanded back for consideration afresh in
the light of aforesaid observations. The court below is
directed to decide the release application of the revisionist
afresh on merit by a reasoned order within a period of 15
days from the date of presentation of certified copy of this
order before him after affording reasonable opportunity of
being to the prosecution.
This revision is allowed in aforesaid terms.
Order Date :- 23.4.2015
RK