Bombay High Court
Milind Kacharoba Waghmare vs The State Of Maharashtra And Anr on 27 January, 2021
Bench: Mangesh S. Patil
943-criwp1510-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1510 OF 2020
Shri Milind S/o Kacharoba Waghmare,
Age : 22 years, Occu: Business,
R/o : Sirsam, Taluka Palam,
District Parbhani. ... PETITIONER
VERSUS
1]The State of Maharashtra
through Police Inspector,
Palam Police Station, Palam,
Taluka Palam, District Parbhani.
2]Shaikh Lal Shaikh Sarwar
Age 35 years, Occu : Business
R/o Dhangar Takali, Tq.Purnas,
District Parbhani. ... RESPONDENTS
...
Advocate for Petitioner : Mr. P.D.Bachate
APP for Respondent/State: Mr. V.S.Badakh
Advocate for Respondent No.2 : Mr.Y.B.Bolkar
...
CORAM : MANGESH S. PATIL, J.
DATE : 27.01.2021
ORAL JUDGMENT :
Heard both the sides.
2. Rule. The Rule is made returnable forthwith. With the consent
of both the sides, the matter is heard finally at the stage of admission.
3. In this petition under Article 227 of the Constitution of India,
the petitioner is aggrieved by only a part of the direction/order contained in
clause 2(vi) of the operative part of the order in Criminal Miscellaneous
943-criwp1510-20.odt
Application No.123/2019 preferred by him under Section 457 of the Code of
Criminal Procedure claiming custody of a vehicle bearing Registration
No.MH-04-CU-9711 seized in connection with Crime No.203/2019
registered with Palam Police Station,Tq.Palam,Dist.Parbhani for the offences
punishable under Sections 353 and 379 of the Indian Penal Code and
Section 47(7) (8) of the Maharashtra Land Revenue Code, 1966 (for short,
"MLRC").
4. The offence is registered for allegedly stealing and transporting
sand from a riverbed.
5. After soliciting say of the prosecution, the learned Magistrate
allowed the application with usual terms and conditions inter alia
containing following condition in clause 2(vi) :
"2(vi). The present order shall be without prejudice to the
powers of Executive Magistrate to proceed pursuant to the
provisions of Section 48 of Maharashtra Land Revenue Code
and Mines and Mineral Act, and vehicle shall not be returned
until he exhaust powers in that regard."
6. The petitioner is now aggrieved by the rider under lined above,
preventing return of the vehicle so long as the Revenue Authorities do not
exhaust the powers under Section 48 of the MLRC.
7. The learned advocate for the petitioner submits that when the
Magistrate was called upon to pass an order under Section 457 of the Code
of Criminal Procedure and though the Revenue Authorities simultaneously
have powers under the MLRC under Section 48, preventing operation of the
order passed under Section 457 till the Revenue Authorities exhaust the
powers under Section 48 of the MLRC is illegal. The Revenue Authorities
may exercise their own powers independently, however, a Magistrate cannot
restrict his own powers under Section 457 in this manner. The condition
being clearly illegal be quashed and set aside.
8. The learned APP opposes the petition. He submits that there is
no illegality in putting the condition impugned in the petition. In fact it is a
943-criwp1510-20.odt
redundant observation. Even without such observations the Revenue
Authorities have their own powers under Section 48 of the MLRC which
they can exercise irrespective of the passing of the order by a Magistrate
under Section 457 of the Code of Criminal Procedure.
9. I have carefully gone through the order passed by the
Magistrate. There cannot be any dispute that the petitioner has been found
entitled to get back his vehicle pending trial.
10. The question that needs to be addressed is as to if the
Magistrate while exercising the powers under Section 457 of the Code of
Criminal Procedure could have imposed the impugned condition. In my
considered view, a Magistrate shall not treat the powers conferred upon the
Revenue Authorities under the MLRC putting any fetters on his powers
exerciseable under Section 457 of the Code of Criminal Procedure. Needless
to state the Revenue Authorities may invoke the provision and the powers
under the MLRC and pass appropriate orders and take suitable steps for its
enforcement. The Magistrate while passing the order under Section 457
shall not carry any impression of there being any impediment in exercising
his powers. The law may take its own course. However, putting a condition
makes the order contingent upon the exercise or otherwise of the powers by
the Revenue Authorities. No such condition therefore can be legally put
which would prevent operation of an order passed by a Magistrate under
Section 457 of the Code of Criminal Procedure.
11. In view of such state of affairs, the Writ Petition is allowed. The
impugned condition is quashed and set aside. The Rule is made absolute.
(MANGESH S. PATIL, J.)
umg/
