Jitendra Brijmohan Chauhan And Another vs The State Of Mah. Thr. Pso Ps Hinganghat ...
2024 Latest Caselaw 2222 Bom

Bombay High Court

Jitendra Brijmohan Chauhan And Another vs The State Of Mah. Thr. Pso Ps Hinganghat ... on 24 January, 2024

Author: M. W. Chandwani

Bench: M. W. Chandwani

2024:BHC-NAG:1284


                                                               1                            apl1700.23.J.odt




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

                               CRIMINAL APPLICATION (APL) NO.1700 OF 2023

                    1.      Jitendra Brijmohan Chauhan
                            Aged about 59 years,
                            Occu - Agriculture
                            R/o Mahavir Ward, Hinganghat,
                            Dist. Wardha.

                    2.      Abhay Krishnarao Moharir
                            Aged about 62 years,
                            Occu - Agriculture
                            R/o Tilak Ward, Hinganghat,
                            Dist. Wardha.                               ....... APPLICANTS

                                                      ...V E R S U S...

                             The State of Maharashtra
                             Through P.S.O. PS Hinganghat,
                             Wardha.                                    ....... NON-APPLICANT
                    --------------------------------------------------------------------------------------------
                             Mr. M. N. Ali, Advocate for Applicants.
                             Mr. N. B. Jawade, APP for Non-Applicant/State.
                    --------------------------------------------------------------------------------------------

                    CORAM:           M. W. CHANDWANI, JJ.
                    DATE:            24th JANUARY, 2024.

                    ORAL JUDGMENT:

Heard.

2. Rule. Rule made returnable forthwith. With the

consent of both the sides, the application is heard finally at the

admission stage.

2 apl1700.23.J.odt

3. The applicants have filed this application for release

of Tractor bearing registration No.MH-32 P-2789 seized by the

Police Station Hinganghat in the Crime No.586/2023, for an

offence punishable under Section 379 read with Section 34 of the

Indian Penal Code for the alleged stealing and transporting sand

from a riverbed without permit. The application under Section 457

of the Criminal Procedure Code, 1973 (for short Code) was filed

before the learned Judicial Magistrate First Class, Hinganghat in

O.M. Criminal Application No.296/2023. The learned Magistrate

vide order dated 18.08.2023 allowed the said application and

directed to return of the vehicle to the applicants, subject to

certain conditions mentioned in clause (1) (ii) of the said order.

The said conditions read thus:

(i) .....

(ii) In case the applicants deposits the amount

as per order dt. 28-06-2023 passed by Tahasildar

Hinganghat and as per direction issued by

Notification of Government of Maharashtra,

Revenue and Forest Department, dt. 12-01-2018

(eglqy o ou foHkkx dzekad xkS[kfu&10@0215@iz-dz-

92@[k] fn-12-01-2018) to Revenue Authority 3 apl1700.23.J.odt

within period of one month from the date of this

order, the seized Tractor and Trolley be released

on interim custody in favour of the applicants.

It is further clarified that such a aforesaid deposit

of penalty with Revenue authority by the

applicants would be without prejudice to the

rights and contentions of either parties, and it

shall not be taken as acceptance of commission

of crime by the applicants.

4. Being aggrieved by the said rider mentioned above

inter alia directing the applicants to deposit the fine amount

imposed by the learned Tahsildar.

5. The learned counsel for the applicants submit that

power of Magistrate exercisable under Section 457 of the Code are

well-defined and that the Magistrate should not have directed the

applicants to deposit the fine amount imposed by the Tahsildar.

The revenue authorities may recover the fine amount from the

applicant as arrears of land revenue under the Maharashtra Land

Revenue Code, 1966 (MLRC).

6. Per contra, the learned APP for the State objected the 4 apl1700.23.J.odt

application on the ground that the Revenue Authority has power

under Section 48 of the MLRC to impose the penalty and on the

payment of such penalty released the vehicle. According to him,

the applicant indirectly challenging the order of penalty. Hence, for

rejection of the application.

7. The issue raised in this application is whether the

Magistrate while exercising power under section 457 of the Code

could impose the impugned condition. The powers of Magistrate

under section 457 of the Code are independent powers. The

Magistrate shall not treat the power conferred upon the Revenue

Authority under the MLRC putting any fetters on his power

exercisable under Section 457 of the Code. Once the Magistrate

decides to exercise the power of 457 of the Code, it is not open for

him to put the condition of payment of fine imposed by the

Tahsildar under the provisions of Mines and Minerals

(Development and Regulation) Act, 1957 as a condition precedent

while passing the order under Section 457 of the Code. The

Revenue Authority may invoke the provisions and the powers

under the MLRC and pass appropriate orders and take suitable

steps for its enforcement. It is always open for the Revenue

Authority to recover the penalty as arrears of land revenue after

following due procedure under the MLRC.

5 apl1700.23.J.odt

8. In view of above, the writ petition is allowed.

Impugned condition in operative part of the order of the learned

Magistrate is set aside. The application is allowed, accordingly.

JUDGE

NSN

Signed by: Mr. N.S. Nikhare Designation: PA To Honourable Judge Date: 02/02/2024 10:13:47