…. Jitendra Kumar Agrawal … v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 585 of 2017 …. Jitendra Kumar Agrawal …… Petitioner Versus The State of Jharkhand …… Opp. Party ----- Present HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioner : Mr. Mahesh Tiwari, Advocate For the State : Mr. Ashok Kumar, A. P. P. ….. ORDER …… C.A.V. on 17.08.2022 Pronounced on 06/01/2023 This Criminal Revision No. 585 of 2017 has been filed on behalf of the petitioner challenging the order dated 20.02.2017 passed by Miss Ritwika Singh, Judicial Magistrate, 1st Class, Dhanbad in connection with Govindpur P.S. Case No. 293 of 2013 by which Miss Ritwika Singh, Judicial Magistrate, 1st Class, Dhanbad has rejected the application for release of the Truck bearing Registration No. UP-84F-9097 in favour of the petitioner. 2. The prosecution case, in brief, is that on 28.06.2013 at about 18.00 hours, the informant along with police party started checking the Trucks coming from eastern side and at about 2030 hours, one Truck bearing U.P. registration number (U.P.-84F- 9097) was coming from eastern side, then the police party stopped the said Truck by flashing their torch, but the driver tried to flee away. Further, police party overtaken the said truck and on interrogation, the Driver and Khallasi of the said truck were apprehended and disclosed their name and address and also disclosed that the coal in question was lifted from Jai Maa Kali Traders Chirkunda and the same was to be delivered to Kanpur, U.P. Further on demand, the driver of the said Truck produced 2 documents relating to said coal which is weighing about 20.27 tones. It has been submitted that seizure list was prepared on the spot in presence of independent witnesses. It is stated that on 20.06.2013, the informant along with driver and khalasi of said Truck went to Jai Maa Kali Traders Chirkunda for verification of document, which was produced by the driver. During verification of documents, it was found that the coal was Ash Burn Rejection coal, but from physical verification of truck, it was found that the said truck was carrying a mix of ash burn rejection coal and Poda coal. Further, the driver of the said truck was arrested. 3. On the basis of written report of the informant, an F.I.R. has been lodged and the case has been registered as Govindpur P.S. Case No. 293 of 2013 dated 29.06.2013, under sections 414, 467, 468, 471, 120B/34 of the Indian Penal Code against the accused petitioner and others. 4.
Legal Reasoning
Heard Mr. Mahesh Tiwari, learned counsel appearing on behalf of the petitioner and Mr. Ashok Kumar, learned counsel for the State. 5. It is submitted by the learned counsel for the petitioner that the impugned order passed by the learned Court below is illegal and not sustainable in the eye of law. It is submitted that Judicial Magistrate has failed to appreciate that this Court has been pleased to direct that no coercive steps shall be taken against the petitioner in connection with Govindpur P.S. Case no. 293 of 2013, corresponding to G.R. No. 2728 of 2013, pending in the Court of Judicial Magistrate 1st Class at Dhanbad. It is submitted that the petitioner being the registered owner of the truck in question has filed an application for release of his Truck bearing registration no. UP-84F-9097 in his favour. It is submitted that Judicial Magistrate has wrongly come to the conclusion that the petitioner has not surrendered and no bail has been granted to him and as such, release of the truck in question in 3 favour of the petitioner cannot be made. It is further submitted that the learned Court below has not followed the Provision of Section 451of the Cr. P. C. It is submitted that vide order dated 13.01.2017 passed in A. B. A. No. 4991 of 2016, the Co-ordinate Bench of this Court had allowed interim protection in favour of the petitioner for not taking coercive steps. It is submitted that the learned Court below has committed grave illegality by rejecting the petition for release of the truck of the petitioner on the ground that the petitioner has not appeared before the learned Court below for grant of bail and investigation is still pending. It is submitted that even as per the counter affidavit, which has been filed on behalf of the State, it has been informed that the petitioner is the owner of the vehicle in question and as such the impugned order passed by the learned Court below may be set aside and this Criminal Revision Application may be allowed. 6. On the other hand, learned counsel for the State has opposed the prayer. It is submitted that this Criminal Revision Application is devoid of merit and the order dated 20.02.2017 passed by the learned Court below is fit and proper and no interference is required from this Court. It is submitted that although the petitioner was granted interim protection vide order dated 13.01.2017 passed in A. B. A. No. 4991 of 2016 by the Co-ordinate Bench of this Court for a period of six weeks, the petitioner had not surrendered and the said A. B. A. No.
Decision
4991 of 2016 had been disposed of. It is submitted that the petitioner was carrying illegal coal in collusion with other accused persons named in the FIR. It is submitted that in view of the above fact, the impugned order passed by the learned Court below is fit and proper and this Criminal Revision Application is devoid of merit and fit to be dismissed. 7. Perused the records and considered the submission of both the sides. 4 8. It transpires that the FIR was lodged on 29.06.2013 by ASI against five persons including the Owner of the Truck in question i.e. the petitioner for carrying illegal coal and by showing false document of carrying mixture of Ash Burn Rejection Coal and Poda Coal. It further reveals that earlier Anticipatory Bail of the petitioner was rejected vide order dated 06.02.2014 passed in A.B. A. No. 480 of 2013 and thereafter the petitioner had filed one application being A.B. A. No. 4991 of 2016 and vide order dated 13.01.2017, the Co- ordinate Bench of this Court had directed to list this case after six weeks and interim protection was given to the petitioner till that period and the learned counsel for the petitioner was directed to address on the question in light of the judgment of the Hon’ble Supreme Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan and Another reported in (2004) 7 SCC 528. In the meantime, the petitioner had filed the petition on 07.02.2017 for release of the Truck bearing Registration No. UP 84F-9097. However, vide order dated 20.02.2017, the learned Court below has rejected the said petition dated 07.02.2017 on the ground that the petitioner is an accused in the FIR and has not surrendered before the learned Court below for bail. 9. The petitioner has filed this Criminal Revision No. 585 of 2017 before this Court and vide order dated 25.07.2017, the Co- ordinate Bench of this Court had directed the learned A.P.P. to get the papers with respect to the vehicle verified as to whether the petitioner is the actual owner of the vehicle or not and the verification report was directed to be submitted within two weeks. 10. It further transpires that State has also filed counter affidavit on 28.07.2022 through the Officer In-charge Govindpur Police Station and it has been stated in para-5 of the said counter affidavit that Jitendra Agarwal son of Sri Murari Lal Agarwal, through R. S. Yadav Transport Company, Station Road, Manpuri (U.P.) is the 5 Owner of the said vehicle bearing Chasis No. 466372CRZ006199, Engine No. 80C62658375 registration dated 25.04.2008, which is registered under RTO Manpuri (U.P.) that after perusal of screening report it is stated therein that in the counter affidavit at Para-5 as follows:- “Black listed by Manpuri Uttar Pradesh due to reason another, objection by RTO on dated 18.02.2016 permit not valid”. 11. From perusal of Annexure-A enclosed of the said counter affidavit, it would appear that the petitioner is the owner of the said Truck No. UP-84F-9097, however, it has been blacklisted as the permit was not valid. 12. It has been held in the case of Sunderbhai Ambala Desai vrs. State of Gujarat reported in 2002 (10) SCC 283 at paragraphs Nos.10, 11, 12, 13, 14, 15, 16 and 17 as follows:- “Para-10:- To avoid such a situation, in our view, powers under Section 451 Cr.PC should be exercised promptly and at the earliest. Valuable articles and currency notes Para-11:- With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest. Para-12:- For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after: (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. Para-13:- For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition. Para-14:- In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep 6 such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed. Vehicles Para-15:- Learned Senior Counsel Mr Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, a number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to their owners or to the person from whom the said vehicles are seized by taking appropriate bond and guarantee for the return of the said vehicles if required by the court at any point of time. Para-16:- However, the learned counsel appearing for the petitioners submitted that this question of handing over the vehicle to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the persons concerned. Para-17:- In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.” 13. It has been held in case of Kiran Yadav Vs. The State of Jharkhand and another in Cr. M.P. No. 832 of 2013 vide order dated 09.07.2013 passed by the Co-ordinate Bench as follows:- ……………………………………………………… “Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that when a Scorpio vehicle belonging to this petitioner, was found carrying pora coal , a case was registered under section 414 of Indian Penal Code. When an application was filed on behalf of the petitioner who happens to be the registered owner of the vehicle for release of the vehicle, the prayer was rejected for the reason that a confiscation proceeding has already been initiated by the D.F.O., but the fact is that the case had never been registered under the Forest Act. Moreover, initiation of confiscation proceeding itself appears to be bad as pora coal in terms of section 2 (iv) of the Forest act, never happens to be a forest produce and , therefore, any rejection on the ground of initiation of confiscation proceeding in facts the circumstances, appears to be unjustified. Accordingly, the Scarpio Vehicle bearing Registration No. JH05V 6688 be released in favour of the petitioner on furnishing bond of Rs. 8,00,000/- [Eight Lacs] with one surety of like amount on giving Undertaking that whenever it shall be required, the same would be produced before the Court below.” let 14. A Co-ordinate Bench of this Court vide order dated 7 27.04.2015 passed in Criminal Revision No. 172 of 2015 ( Kiran Devi @ Kiran Singh Vs. State of Jharkhand ) has held as follows:- “………………………………………………….. “ Learned counsel appearing for the petitioner submitted that petitioner being the owner of the Truck No. BR01GA-7868 filed an application in the Court concerned for its release as it was a commercial vehicle but his prayer has been rejected by the Court below holding that since the confiscation proceeding has been initiated, the vehicle in question cannot be released. This order was passed on the basis of a report received from the District Forest Officer-cum-Authorized Officer of Wild Life Division , Hazaribag, wherein it was informed that confiscation proceeding has been Learned A.P.P. for the State vehemently opposed initiated. the prayer and submitted that the order passed by the Court below needs no interference as the confiscation proceeding of the vehicle and the seized material has been initiated. Court at present is not going into the merit of the allegation levelled in the F.I.R. The Truck in question stands seized since 11.11.2014 . It is common knowledge that vehicles are vulnerable to vagaries of nature in case they are kept in open space without adequate care.” “……………………………………………………..” “ In the facts and circumstances stated above , I am of the view that the Court below shall take appropriate steps to release the vehicle in question in favour of the petitioner as an interim measure after taking adequate security and also indemnity bond or whatever other safety measures as it thinks proper in the circumstances of the case . The Magistrate shall also take steps to make a proper Panchanama, which shall be kept on record for further use during proceedings, so that the trial may not be hampered. The petitioner is directed to appear in confiscation proceeding, if any, and file his show-cause. This In view of the direction given above , this revision application is hereby, allowed with a direction that in the event the petitioner approaches the Court concerned for release of the vehicle, the same would be released in favour of the petitioner after taking adequate safety measures including indemnity bond and imposing conditions as stated above . The owner of the vehicle during pendency of the case in Court below and would produce the vehicle as and when required.” 15. It is evident that there is nothing against him, except the fact that the petitioner had not surrendered in the learned Court below. 16. It is evident from the counter affidavit filed on behalf of the petitioner that the petitioner happens to be the Owner of the vehicle in question, although the said vehicle had been blacklisted for not having a valid permit. However the fact remains that the Truck has been seized and lying in the premises of Govindpur Police Station 8 since last nine years. 17. During course of submission of the learned counsel could not point out that as to whether the petitioner had surrendered before the learned Court below or not and they also could not point out as to whether the petitioner had been granted bail by the learned Court below or not?, but fact remained that the Vehicle is lying in the Police Station for more than nine years on the ground that the petitioner has not surrendered before the learned Court below. 18. It is well settled that Truck in question is a commercial vehicle and the vehicle is not involved in any crime, rather it is the allegation of the I.O. that the some accused persons were illegally carrying the coal in Truck of the petitioner and for which the petitioner cannot be found at fault. 19. Under the circumstances, the impugned order dated 20.02.2017 passed by Miss Ritwika Singh, Judicial Magistrate, 1st Class, Dhanbad in connection with Govindpur P.S. Case No. 293 of 2013 by which Miss Ritwika Singh, Judicial Magistrate, 1st Class, Dhanbad is set aside in the interest of justice and the case is remitted back to Miss Ritwika Singh, Judicial Magistrate, 1st Class, Dhanbad / or her Successor Court to pass afresh order in accordance with law in light of the judgment passed by the Hon’ble Supreme Court in the case of Sunderbhai Ambala Desai vrs. State of Gujarat reported in 2002 (10) SCC 283 and also the order dated 09.07.2013 passed in Cr. M. P. No. 832 of 2013 and the order dated 27.04.2015 passed in Criminal Revision No. 172 of 2015 within a period of six weeks from the date of receipt of a copy of this order and if the petitioner has not been declared as an absconder. 20. Accordingly, Criminal Revision No. 585 of 2017 is allowed and stands disposed of with the observation mentioned above. Kamlesh/ (Sanjay Prasad, J.)