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Madhya Pradesh High Court · body

2011 DIGILAW 738 (MP)

Dilip v. State of M. P.

2011-07-07

S.N.AGGARWAL

body2011
ORDER (Oral) 1. A batch of these forty-three petitions is proposed to be disposed of by this common order because they all raise the same legal question for consideration and answer by the Court and that question is whether the Magistrate has power under sections 451 or 457 of the Code of Criminal Procedure, 1973 to grant interim release of the vehicle seized by the authorities either under the M.P. Excise Act, 1915 or under the Wild Life (Protection) Act, 1972 or under the Forest Act. 2. I would like to note that some of these petitions have been filed by the owners of the offending vehicles aggrieved by refusal of interim release of their vehicles by the Magistrate on the ground that he has no power or jurisdiction to grant interim release and some petitions have been filed by the State of Madhya Pradesh aggrieved by the orders of the Magistrate/Revisional Court granting interim release of the offending vehicle to its owners on supurdari subject to certain conditions mentioned in the orders. 3. Whether the petitions have been filed by the vehicle owners or by the State raise only one question regarding competence of the Magistrate to grant interim release of vehicle to its owner during the pendency of trial against the claimant. The question that arises for consideration in these petitions has already been considered and answered by Full Bench of this Court in the case of Madhukar Rao v. State of Madhya Pradesh, 2000 (1) JLJ 304 = 2000 (I) MPLJ 289 wherein it was held as under: In order that the seized property may be treated as property of the State, there should be a finding by the competent Court that vehicle seized has been used for committing an offence. The property seized under section 50 of the Wild Life (Protection) Act from an alleged offender cannot become property of the State under Clause (d) of section 39 (1) unless there is a trial and a finding reached by the competent Court that the Property was used for committing an offence under the Act. The property seized under section 50 of the Wild Life (Protection) Act from an alleged offender cannot become property of the State under Clause (d) of section 39 (1) unless there is a trial and a finding reached by the competent Court that the Property was used for committing an offence under the Act. Properties including vessel can be seized on accusation of commission of an offence under the Act and if the offender is available and is arrested, on proof of his guilt, the property seized from him and used in commission of the offence is liable to forfeiture to the State under section 51 (2) of the Act. Similarly every property seized and is held to have been used for committing an offence by competent Court, whether the offender is available or not for punishment, would be declared to be the property of the State by virtue of the provisions contained under section 39(1)(d) of the Act. Section 39 contained in Chapter-V is sort of a residuary provision to make all properties seized and found to be used in commission of an offence as properties of the State Government irrespective of the fact whether they are liable to forfeiture at the conclusion of the trial under sub-section (2) of section 51 of the Act. Instillation can be envisaged where the offence is proved to have been committed but the owner of the property or the offender himself is not available for prosecution. In that situation by virtue of Clause (d) of section 39 of the Act the property would become the property of the State without any requirement of passing an order of forfeiture in a trial by the Criminal Court in accordance with sub-section (2) of section 51 of the Act. Any property including vehicle seized on accusation or suspicion of commission of an offence under the Act can, on relevant grounds and circumstances, be released by the Magistrate pending trial in accordance with section 50 (4) read with section 451 of the Code of Criminal Procedure, 1973. Mere seizure of any property including vehicle on the charge of commission of an offence would not make the property to be of the State Government under section 39 (1) (d) of Act. 4. Mere seizure of any property including vehicle on the charge of commission of an offence would not make the property to be of the State Government under section 39 (1) (d) of Act. 4. The above view on the point in issue taken by the Full Bench of this Court in the aforementioned case has been affirmed by the Hon'ble Supreme Court in an appeal preferred by the State against the judgment of the Full Bench vide its decision dated 09th January, 2008 in Civil Appeal No. 5196/01. While affirming, the view on the point in issue taken by the Full Bench of this Court, Hon'ble Supreme Court has held that the Magistrate is fully competent to grant in Interim release of the offending vehicle to its owner during the pendency of criminal case in which the vehicle was seized against him. Said judgment of the Hon'ble Supreme Court dated 09th January, 2008 in Civil Appeal No. 5196/01 is reported as case titled State of M.P. and others v. Madhukar Rao in 2008 (1) JLJ 427 == 2008 (I) JT 364 . 5. The question whether the Magistrate is competent to grant interim release of the vehicle seized under the Wild Life (Protection) Act, 1972 (hereinafter, referred to as the "Act" for brevity), also came up for consideration before the Hon'ble Supreme Court yet in another case titled State of U.P. and another v. Lalloo Singh, (2007) 7 SCC 334 and in that case also it was held by the Hon 'ble Supreme Court that the Magistrate is competent to grant interim release of the offending vehicle to its true owner during the pendency of criminal case in which the vehicle was seized. 6. Since, decision on the question that has been raised in these petitions stands already concluded by decision of the Full Bench in Madhukar Rao case (supra) and affirmed by the Hon'ble Supreme Court, as stated above, in the opinion of this Court, no further consideration of the said question is required by this Court. 7. 6. Since, decision on the question that has been raised in these petitions stands already concluded by decision of the Full Bench in Madhukar Rao case (supra) and affirmed by the Hon'ble Supreme Court, as stated above, in the opinion of this Court, no further consideration of the said question is required by this Court. 7. However, at this stage, Shri Vivek Khcdkar, learned Public Prosecutor appearing on behalf of the State contends that the provisions contained in M.P. Excise Act, 1915 are not pari materia with the provisions contained in the Wild Life Act and, therefore, he submits that as far as vehicles seized by the authorities under the M.P. Excise Act are concerned, they cannot be released by the Magistrate in exercise of his power under section 451 and 457 of CrPC. This argument is of no consequence because it is not in dispute before this Court that the person apprehended for any violation under the M.P. Excise Act has to be tried by the Magistrate. Section 58 of the M.P. Excise Act, 1915 relevant and is extracted below : "58. Arrests, searches etc. how to be made -- Save as in this Act otherwise expressly provided the provisions of the Code of Criminal Procedure, 1973 (No.2 of 1974) relating to arrest, detentions in custody, searches, summons, warrants of arrests, search warrants, the production of persons arrested, and the disposal of thing seized, shall apply, as far as may be, to all action taken in these respects under this Act." 8. It is apparent on a plain reading of the above statutory provision contained in section 58 of the M.P. Excise Act, 1915 that the provisions of Code of Criminal Procedure, 1973 are applicable to matters relating to arrest, detention, search and seizure, summons, warrants, etc. for eases under the M.P. Excise Act, 1915 in the same manner as they are applicable under the Wild Life Act. 9. for eases under the M.P. Excise Act, 1915 in the same manner as they are applicable under the Wild Life Act. 9. Asimilar argument in regard to applicability of the provisions of the Code of Criminal Procedure, 1973 to cases under the Wile Life Act was also raised before the Hon'ble Supreme Court in Madhukar Rao's case (supra) and the Hon'bie Supreme Court after consideration of the said argument has held as under: "The scheme of section 50 of the Wild Life Act makes it abundantly clear that a police officer is also empowered to investigate the offences and search and seize the offending articles. For trial of offences, the Code of Criminal Procedure is required to be fol1owed and for that there is no other specific provision to the contrary. The special procedure prescribed is limited for taking cognizance of the offence as well as powers are given to other officers mentioned in section 50 for inspection, arrest, search and seizure as well as of recording statement. The power to compound offences is also conferred under section 54. Section 51 provides for penalties which would indicate that certain offences are cognizable offences meaning thereby a police officer can arrest without warrant. Sub-section (5) of section 51 provides that nothing contained in section 360 of the Code of Criminal Procedure or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a national park or of an offence against any provision of Chapter 5-A unless such person is under 18 years of age. The aforesaid specific provisions are contrary to the provisions contained in the Code of Criminal Procedure and that would prevail during the trial. However, from this, it cannot be said that operation of rest of the provisions of the Code of Criminal Procedure are excluded." 10. Since the provisions of the Code of Criminal Procedure, 1973 are held applicable to cases tried under the Wile Life Act, by no stretch of imagination, it may be said that the Magistrate who is competent to try a criminal case under the M.P. Excise Act will be incompetent to grant interim release of the offending vehicle even if the merits of the case so warrant. Hence, this Court holds that the Magistrate is competent to grant interim release of the vehicle even in Excise cases during the pendency of the trial of such cases, as per merits of each case. 11. In view of the foregoing and having regard to the judgment of the Full Bench of this Court in Madhukar Rao 's case (supra) as affirmed by the Hon 'ble Supreme Court the view taken by the trial Court/Revisional Court that the Magistrate is not competent to grant interim release of the vehicle on supurdari to its owner in cases under the M.P. Excise Act or Wile Life Act is unsustainable and needs to be set aside. Petitions filed by the State against orders of trial Court/Revisional Court granting interim release of the vehicle to its owners on supurdari subject to certain conditions need to be dismissed because the orders in those cases, impugned by the State, are in accordance with law as per judgment of the Full Bench in Madhukar Rao 's case (supra) affirmed by the Hon'ble Supreme Court. 12. In the facts and circumstances of the case and for the reasons given hereinabove, all these petitions are disposed of with the following directions: (1) The petitions filed by the owners of the vehicles against orders declining them interim release of the vehicles by the Magistrate/Revisional C0urt are allowed. Impugned orders in all such cases are set aside. (2) The petitions filed by the State against the orders of the Magistrate, Revisional Court granting interim release of the offending vehicle to its owners on supurdari are dismissed. (3) The cases of the vehicle owners in those petitions, who vide orders impugned in these petitions were declined interim custody of their vehicles, are remanded back to the concerned trial Court for passing fresh orders on their applications for interim release of their vehicles filed either under section 451 or section 457 CrPC. on merits of each case without being influenced by the observations of this Court regarding his competence to grant interim release of the vehicles. It shall be open to the concerned Magistrate either to grant or not to grant interim custody of the vehicles, but that shall be on objective assessment of the relative merits of each case. on merits of each case without being influenced by the observations of this Court regarding his competence to grant interim release of the vehicles. It shall be open to the concerned Magistrate either to grant or not to grant interim custody of the vehicles, but that shall be on objective assessment of the relative merits of each case. The Magistrate shall pass a speaking order spelling out the reasons for grant or non-grant of interim custody of vehicle, as expeditiously as possible, but not later than three months of receipt of certified copy of this order. Needless to mention that the Magistrate shall give a hearing on application under section 451/457 CrPC to both the parties before passing his reasonable order. (4) In case, it is found by the Magistrate at fresh hearing of the application under section 45 1/457 that the finding of guilt has already recorded against the owner of the vehicle/accused person in the main case and the said conviction has attained finality, then the Magistrate shall not grant custody of the vehicle, what to speak of interim custody. (5) The Magistrate shall be entitled to put such conditions as he may consider necessary for interim release of the vehicle on supurdari and may also take an undertaking from the vehicle owners that they shall abide by those conditions till final disposal of main criminal case. 13. All these petitions stand disposed of in terms referred hereinabove. 14. A copy of this order be kept in the files of all the cases which have been disposed of by this common order.