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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.377 OF 2016
Pravin s/o. Wasudevrao Lengule,
Aged about 29 years,
Occupation : contractor,
R/o. Zari Jamni,
Tahasil Zari Jamni, District Yavatmal. : PETITIONER
...VERSUS...
The State of Maharashtra,
through Police Station Officer,
Police Station Patan,
Tahasil Zari Jamni, District Yavatmal. : RESPONDENT
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Shri S.Y. Deopujari, Advocate for the Petitioner.
Smt. Mrunal Naik, Addl. Public Prosecutor for the Respondent/State.
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CORAM : S.B. SHUKRE, J.
th DATE : 28 JULY, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent of learned counsel appearing for the parties.
3. By this criminal writ petition, the legality and correctness of the order passed by the learned Judicial Magistrate, First Class, ::: Uploaded on - 30/07/2016 ::: Downloaded on - 31/07/2016 00:28:38 ::: J-cwp377.16.odt 2/6 Zarizamni dated 13.4.2016, below Exh.-1, and the judgment and order dated 28th April, 2016 delivered by the Additional Sessions Judge, Kelapur, in Criminal Revision Case No.10/2016 are questioned. This petitioner is an owner of one JCB Machine, bearing registration No.MH-29-AK-1149 as described in paragraph 1 of this petition about which there is no dispute. The petitioner has been arraigned as an accused in Crime No.45/2016, registered against one person and subsequently against this applicant also for an offence punishable under Section 379 of the Indian Penal Code. The allegation is that co-accused and this applicant, by means of JCB Machine involved in this crime, illegally excavated stones from Mine No.12/2, situated at Zari Jamani, district Yavatmal and thus stolen away property of the Government. The JCB Machine after registration of the offence came to be seized by the Investigating Officer. Since then, it is lying at the Police Station, Patan.
4. As the JCB Machine was lying idle at the Police Station, Patan, this petitioner prayed before the Judicial Magistrate, First Class Zari Jamani for its being released into his custody on supratnama.
Learned Magistrate, by his order dated 13.4.2016 rejected the application. The order was questioned by the petitioner by filing Criminal Revision No.10/2016. The petitioner, however, did not succeed in criminal revision application also as it came to be rejected on 28 th April, 2016.
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5. Being aggrieved by both these orders, the writ petitioner is before this Court in the present criminal writ petition.
6. I have heard Shri S.Y. Deopujari, learned counsel for the petitioner and Smt. M.S. Naik, learned Addl. Public Prosecutor for the respondent/State. I have perused the impugned order and the paper book of this petition.
7. It is seen from the impugned order that the only ground on which the application of the petitioner for release of JCB Machine into his custody has been rejected is that the applicant was likely to use the JCB Machine once again for illegal activities. The reply of the prosecution also shows that same ground has been taken for opposing this criminal writ petition. It is also mentioned in the reply that previously two similar crimes of commission of theft of sand were registered against this petitioner. But, the registration of offences punishable under Section 379 of the Indian Penal Code simplicitor would not be sufficient to indicate that this applicant is likely to misuse the JCB Machine if it is given in his custody. The reason being that in the previous offences, there has been no allegation made against the petitioner whatsoever that those offences were committed by him by means of any JCB Machine. There is no reference, insofar as those previous offences are concerned, regarding use of any JCB Machine as in this case. Therefore, registration of offences previously cannot be used ::: Uploaded on - 30/07/2016 ::: Downloaded on - 31/07/2016 00:28:38 ::: J-cwp377.16.odt 4/6 for substantiating the apprehension of misuse of JCB Machine once again by the petitioner. Even if it is there, it can be taken care of by imposing suitable conditions. After all, JCB Machine comes with a huge cost and it is well-known that if such a machine is not put to use, it would diminish in its value and will be rendered ultimately useless not only for the owner but even for any other purposes. Therefore, it is better that such machine is allowed to be used under proper conditions. These aspects of the matter have not been considered at all by the Courts below and, therefore, I am of the view that both the orders cannot be sustained in law and deserve to be quashed and set aside.
8. In the result, the criminal writ petition is allowed.
9. The impugned orders dated 13.4.2016, passed by the learned Judicial Magistrate, First Class, Zarizamni, below Exh.-1 and the judgment and order dated 28th April, 2016 passed by the Additional Sessions Judge, Kelapur, are quashed and set aside.
10. The prayer of the petitioner for release of JCB Machine, as described in paragraph 1 of the petition, is granted.
11. It is directed that the JCB Machine be released into the custody of the petitioner on his executing a supratnama in the sum of Rs.5/- lakh on condition that the petitioner shall submit an undertaking to the trial Court that he shall not use JCB Machine for any illegal act or commission of any offence, that he shall produce this JCB Machine ::: Uploaded on - 30/07/2016 ::: Downloaded on - 31/07/2016 00:28:38 ::: J-cwp377.16.odt 5/6 before the Court as and when required by it for the purposes of the trial, and that he shall not transfer it or create any third party interest in it till the trial is over.
12. Hamdast granted.
JUDGE
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