Baij Nath Singh vs State Of U.P. And Others
2013 Latest Caselaw 1373 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 35
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 237 of 2013
 

 
Petitioner :- Baij Nath Singh
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Ashutosh
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

The present petition along with a misc. application has been filed seeking mandamus to direct the release of the petitioner's tractor and trolley bearing No. UP-53 AD4901 in favour of the petitioner. An application with the same prayer seems to have been moved before the A.C.J.M., Gorakhpur, who disposed of the application without passing any specific order. The A.C.J.M's order dated16.8.2012 has also been assailed in the present petition.

I have heard petitioner's counsel at length and also learned A.G.A., who has filed his counter affidavit today. Perused the record. The facts germane for the purpose of deciding the present petition appear to be like this. The petitioner is the registered owner of a tractor no.UP-53 AD4901. The same was taken in possession by the S.D.M. and was sent to the concerned police Station on the allegation of its involvement in some illegal mining. Since the day of its seizure i.e. on 11.5.2012 about a year has been elapsed, but the tractor has been kept standing at the police station. The petitioner's counsel states that the tractor, exposed to all natural corrosion and damage has been reduced to a junk. As per annexure-1 to the petition, the petitioner moved before the A.C.J.M's Court an application seeking release of this vehicle on which a report was called up from the concerned police station. The police report has been annexued as annexure-4 to the writ petition, according to which this tractor was reported to have no connection with any crime registered in the police Station. It was also reported by the concerned Police station that the vehicle has not been detained in the police Station in connection with any crime. After receiving the same report the lower court concerned passed the impugned order on 16.8.2012 whereby the learned A.C.J.M disposed of the application by just making an observation that no offence regarding this vehicle in question is registered in police Station. The order of the A.C.J.M is some what vague and non speaking and is more in the nature of a refusal to pass an order regarding the disposal of the vehicle or its release.

It has been pointed out by the petitioner's counsel that on the same date by the same S.D.M. at the same point of time another tractor was also seized and sent to the police Station with similar allegation as has been alleged against the petitioner's vehicle. In the counter affidavit filed on behalf of the State also it has been averred in para-3 that the petitioner's tractor was actually brought to the police station along with another tractor no. UP-53 HE9112 with illegally excavated sand on it. There seem to be some confusion about the number of another tractor but that is not very material for decision of this petition. It has been submitted that the owner of another tractor had also moved an application seeking release of his tractor before the concerned Magistrate, but the same was also refused by the concerned court by passing a similar order as has been passed in connection with the petitioner's vehicle in question. It has been brought to the court's notice that being aggrieved by the refusal of the concerned court the owner of another tractor mentioned above had approached this Court and that matter was decided by Hon'ble Manoj Misra,J. in criminal Misc. Writ Petition No. 13098 of 2012, Smt. Manju Singh Vs. State of U.P. and others vide his order dated 16.10.2012. The said order has been annexed as annexure-5 to the writ petition.

The learned Judge while deciding the questions involved had considered the case of Smt. Sudha Kesarwani Vs. State of U.P. And others reported in 2011 (112) RD 27 at length. The relevant portion is being quoted as below:-

".....in the case of Smt. Sudha Kesarwani v. State of U.P. and others reported in 2011 (112) RD 27, wherein this court held that notwithstanding the provisions of Section 21 (4-A) of the Mines & Minerals (Regulation and Development) Act, 1957, the learned Magistrate is empowered under Section 457 Cr.P.C. to order release of the vehicle seized in exercise of the power under Section 21 (4) of the Mines & Minerals (Regulation and Development) Act, 1957. In the said judgement, this court further held that the power to confiscate under sub-Section (4-A) of Section 21 of the aforesaid Act lies with the competent court and not with the District Magistrate or the Collector or any other authority. Paragraph Nos. 6, 7, 8 and 9 of the said judgement reads as follows:-

"6. Section 21 (4a) is specific on the point that a competent court i.e. Magistrate is competent to confiscate the vehicle and is also competent to dispose it of in accordance with directions given by it. The District Magistrate or the Collector or any other authority has not been given power to confiscate the vehicle either under the act, or in the rules. This power is reserved for the Court, which is a competent to try the case after a complaint in respect of which same has been filed by the District Magistrate.

7. In this view of the matter, it cannot be said that the Magistrate has no jurisdiction to release the vehicle pending trial or even before the trial as the complaint has not yet been filed by the competent authority. The District Magistrate or Judicial Magistrate cannot compel the petitioner to compound the case against her will. If the petitioner is not ready to compound the case, she cannot be compelled to do so. Since the complaint has not yet been filed even after a period of nine months from the incident, a vehicle lying at the police station is likely to become junk, and it was desirable for the Magistrate to pass an order for release in favour of its registered owner subject to certain conditions, which he might impose.

8. Even under Section 457 Cr.P.C., learned Magistrate had the jurisdiction to release the truck in favour of its registered owner since there is no other provisions in either the act or the rules for release of the vehicle.

9. In view of the aforesaid, the order passed by the learned Magistrate is void-ab-initio. Learned Magistrate has failed to exercise the jurisdiction vested in it."

Having considered the rival submissions of the learned counsel for the parties, I am of the view that the learned Magistrate has the power to direct release of the vehicle concerned in the light of the decision of this court in the case of Smt. Sudha Kesarwani (supra)."

I am in respectful agreement with the views expressed in this case by the learned Judge. To me too it appears that the impugned order passed by the ACJM is a complete failure to exercise jurisdiction vested upon him.

One more fact seems to be relevant. As per the para no.17 of the writ petition, it has been emphasised that no complaint has been filed before the competent authority regarding any illegal act committed by the petitioner. This fact averred in para 17 of the writ petition has not been rebutted in the counter affidavit filed by the State today. The counter affidavit has been sworn on 7.3.2013 by the Sub Inspector. It is actually an appalling state of affairs. To own a vehicle and to use it constitute an important right of its owner. If the concerned authorities find some infraction of law being committed by the owner through his vehicle, it can always proceed against him through the course permissible by law. But to lift up a vehicle and put in a police station and then swing the whole matter into oblivion speaks volumes about the apathy with which the Administrative Officers seem to be treating the citizen and their vested rights. The vehicle owner can be saddled with any civil or criminal liability because of the misuse of his vehicle and the authorities must proceed against him expeditiously. On the other hand if it can be shown by the owner that he has not committed any wrong or that it is permissible under law to release his vehicle then he must get the relief at the earliest. Almost a year has elapsed and the petitioner is yet awaiting the fate of his vehicle in utter desperation.

Even the lower judicial court of ACJM has chosen to exercise his jurisdiction by not exercising it. It is an irony and the same deserves the judicial frown of this court . It is hoped that the matters involving the vested rights of the citizen shall be dealt with more sensibility by administrative and judicial officers both.

I, therefore, quash the lower court's order. The matter is remanded back to the concerned court with the direction to decide the matter afresh within three weeks from the date of furnishing a certified copy of this order. The petition and the Misc. application stands disposed of in terms of the directions given above.

Order Date :- 26.4.2013

Rkb