Bombay High Court
Pravin S/O Wasudevrao Lengule vs The State Of Maharashtra, Thr. ... on 28 July, 2016
Bench: S.B. Shukre
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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,
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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
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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
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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
okMksns
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