Mohd. Sajid Shri Kallu Thr. Poa ... vs The State Of Mah. Thr. Pso Ps Kelwad ...
2022 Latest Caselaw 12383 Bom

                                                   1                    crwp529.22.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR

            CRIMINAL WRIT PETITION NO.529 OF 2022

      Mohd. Sajid Shri Kallu
      Aged 45 years, Occ: Business,
      R/o 245, Mohd. Ibrahimpur, Tah. Billari,
      Dist. Muradabad [U.P.] through his Power
      of Attorney, Saver Ansari s/o Iftekar Ansari
      Aged 28 years, Occ: Business,
      R/o Dashmesh Nagar, Gupta Colony,
      Ashoka Garden, Bhopal [M.P.]                 ... PETITIONER

            ---VERSUS---

  1. The State of Maharashtra,
     Through Police Station Officer,
     P.S. Kelwad, Tah. Saoner,
     Dist. Nagpur

  2. Smt. Asha Mahendra Dave
     Aged 54 years, Occ: Private,
     R/o 124, Ward no.24, Waghdara, Babale
     Layout, Wanadongari, Nagpur

  3. Seth Ramlal Malu Gaushala Gawatha,
     Through its Secretary, Shri Purushttam
     Ramal Malu R/o Nagpur                                     ...RESPONDENTS

 ----------------------------------------------------------------------------------------
 Shri O.K. Masurke, Advocate for petitioner.
 Shri H.D. Dubey, Advocate for respondent no.1.
 Shri A.H. Joshi, Advocate for respondent no.2.
 Shri N.B. Naidu, Advocate for respondent no.3.
 ----------------------------------------------------------------------------------------
                                  CORAM             : G.A. SANAP, J.

                                  DATED            : NOVEMBER 30, 2022.





                                            2                   crwp529.22.odt


 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally with

the consent of learned advocates for the parties.

2. In this petition, the prayer is made to quash and set aside

the order dated 07.03.2022 passed by the learned Additional

Sessions Judge, Nagpur in Miscellaneous Criminal Application

No.2512 of 2021, whereby the learned Additional Sessions Judge

was pleased to reject the application for condonation of delay of 169

days caused in filing the revision application against the order dated

07.11.2020 passed by the learned Judicial Magistrate First Class,

Court No.2, Saoner.

3. Vide order dated 07.11.2020, learned Magistrate was

pleased to handover the custody of 65 cattle seized in the crime to

Seth Ramlal Malu Gaushala, Kawatha. Learned Magistrate also

granted the application made by the petitioner for release of the

vehicle used in the commission of the crime to the applicant subject

to appropriate conditions. The petitioner as can be seen from the

record felt aggrieved by this order and therefore wanted to file

revision application against this part of the order. The delay of 169

days was caused in filing the revision application. The petitioner,

3 crwp529.22.odt

therefore, made the application for condonation of delay. The

learned Additional Sessions Judge by order dated 07.03.2022

rejected the said application. Against this order, the petitioner has

come before this Court.

4. The learned advocate for the petitioner submits that the

petitioner has a good case on merits. In the revision application,

which was filed with delay condonation application, valid grounds

of challenge to the impugned order were pleaded. It is submitted

that learned Additional Sessions Judge has not taken into

consideration the facts pleaded in the delay condonation application

and has wrongly rejected the same.

5. The learned advocate for the respondent no.2 submits

that there cannot be a serious objection to the condonation of delay.

However, he submits that the learned Magistrate wrongly quantified

the daily maintenance charge of each cattle at ₹50/-. In the

submission of the learned advocate as per the Maharashtra Animal

Board notification dated 02.07.2019, the daily maintenance charges

should be ₹200/- per day per cattle.

6. The learned advocate for the respondent no.3, in whose

custody the cattle have been given, submits that for want of the

4 crwp529.22.odt

deposit of sufficient amount towards maintenance charges the

maintenance of the cattle has become difficult task before the

respondent no.3.

7. As far as the submissions advanced by the learned

advocates for respondent nos.2 and 3 are concerned, the remedy

available to them would be to approach the learned Magistrate with

an appropriate application. If they are aggrieved by the order passed

by the learned Magistrate with regard to the quantification of the

daily maintenance charge, it would be open for them to take

recourse to the remedy available under law. It is to be noted that

while deciding this writ petition no directions on that count can be

issued. However, it is made clear that as and when a grievance is

made before the concerned Court by respondent nos.2 and 3 their

grievance shall be considered according to law.

8. Coming back to the delay condonation application, it is

seen that the reasons have been stated in the application. There is

delay of 169 days caused in filing the revision application. The

vehicle used in the commission of the crime is still in the custody of

the police. The petitioner is aggrieved by the conditions imposed by

the learned Magistrate at the time of the release of the vehicle.

9. It is to be noted that while deciding the delay

5 crwp529.22.odt

condonation application a liberal view is required to be adopted. It

is needless to state that the decision or adjudication of a matter

finally by granting an opportunity of hearing to the parties is always

in the interest of both parties. Such approach in the opinion of this

Court can avoid the multiplicity of the proceedings. Considering the

reasons stated in the application made for condonation of delay, in

my view, the same can be allowed. I must state that the learned

Additional Sessions Judge on the basis of the facts stated in the

application and with a view to subserve the cause of justice in all

respect, keeping in mind the nature of the matter, ought to have

granted the application for condonation of delay.

10. The learned advocate for the respondent no.2 pointed out

that in this writ petition, the petitioner has claimed substantive relief

challenging the order of the learned Magistrate. The prayer clause

(iii) indicates that this prayer would not be maintainable in this writ

petition.

11. In view of this position, the writ petition deserves to be

allowed.

12. The impugned order dated 07.03.2022 passed by the

learned Additional Sessions Judge, Nagpur in Miscellaneous

Criminal Application No.2512 of 2021 is set aside.

6 crwp529.22.odt

13. The application for condonation of delay is allowed.

Delay of 169 days caused in filing of the revision application is

condoned.

14. The petitioner shall take steps for getting the revision

application registered before the learned Additional Sessions Judge,

Nagpur.

15. It is made clear that in the revision application filed by the

petitioner he shall implicate all the necessary parties as respondents

so as to enable the learned Additional Session Judge to decide the

matter finally and completely in all respect.

16. Rule is made absolute in above terms.

JUDGE

Wagh