Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 152 (MP)

Mahipal S/o Baijnath v. State of M. P.

2017-01-31

G.S.AHLUWALIA

body2017
ORDER : 1. Shri Rajmani Bansal, counsel for the applicant. Shri Girdhari Singh Chauhan, Public Prosecutor for the respondents/State. This petition under section 482 of Criminal Procedure Code has been filed for quashing the order dated 24-12-2016 passed by First Additional Sessions Judge, Dabra, District-Gwalior in Criminal Revision No. 285/2016 by which the order dated 29-11-2016 passed by JMFC, Dabra, District-Gwalior was affirmed. 2. The necessary facts for the disposal of the present application are that the truck bearing Registration No. RJ- 11-GA-9495 has been seized by the SDO, Dabra, District-Gwalior as it was found transporting the mineral illegally. An application under sections 451, 457 of Criminal Procedure Code was filed for release of the vehicle on supurdigi, however, the said application was rejected on the ground that as no information has been given by the authority under Rule 18(3) of Madhya Pradesh Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006 and, therefore, the Magistrate has no jurisdiction to deal with the vehicle concern. 3. Being aggrieved by the order of the Magistrate, the applicant filed a criminal revision which too has suffered dismissal. 4. It is submitted by the counsel for the applicant that under Rule 18(5) of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006, if the registered owner of the vehicle agrees for compounding, then 10 times of the penalty can be imposed and the authorized authority itself is competent to release the vehicle on supurdiginama. It is submitted by the counsel for the applicant that the authorities cannot compel the applicant/registered owner of the vehicle to compound. It is the sweet-will of the applicant that whether he wants to contest the case or whether he wants to compound the matter. If the applicant/registered owner is not willing to compound, then the matter has to be referred to the Magistrate. 5. Division Bench of this Court, by order dated 11-5-2016 passed in the case of Balram Sharma vs. State of M.P. and Others, W.P. No. 15/2016 [2016 MPLJ Online 11] has held as under:- “We have considered the submissions made by learned counsel for the parties. 5. Division Bench of this Court, by order dated 11-5-2016 passed in the case of Balram Sharma vs. State of M.P. and Others, W.P. No. 15/2016 [2016 MPLJ Online 11] has held as under:- “We have considered the submissions made by learned counsel for the parties. A Division Bench of this Court vide order dated 21-3-2012 passed in W.A. No. 1320/2011, after taking note of the provisions of Rule 18 of the Rules has held as under:- “From the reading of the above quoted rule, it is clear that the order under sub-rule (5) can be passed by the Collector only as a measure to compound the offence punishable under sub-rule (1) and the appellant cannot be compelled to compound the offence. Further, on the non-payment of penalty imposed, the only course left to the Collector is to make a report to the Magistrate having jurisdiction to try such offence.” In view of aforesaid enunciation of law by the Division Bench, it is evident that the petitioner cannot be compelled to compound the offence. In the instant case, the petitioner on express terms has stated that he is not willing to compound the offence. Thus, the only course which was left to the Sub Divisional Officer was to make a report to the Magistrate having jurisdiction to try such offence. The impugned order is, therefore, per-se without jurisdiction. It is well settled in law that if any impugned order is per-se without jurisdiction, the aggrieved person can be permitted to by-pass the alternative remedy which may be available to him under law. [See: Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 and Harbans Lal Sahnia vs. Indian Oil Corporation, (2003) 2 SCC 107 ].” 6. Thus, it is clear that if the registered owner is not willing to compound, then the only course open for the authorized authority is to refer the matter to the Magistrate. 7. In the present case, it is specifically submitted by the counsel for the applicant that the applicant does not want to compound the matter and he wants to contest the case and, therefore, the authorized authority must refer the matter to the Magistrate. It is further submitted that after the matter is referred to the Magistrate, then the Magistrate will have a jurisdiction to deal with the application under sections 451, 457 of Criminal Procedure Code. 8. It is further submitted that after the matter is referred to the Magistrate, then the Magistrate will have a jurisdiction to deal with the application under sections 451, 457 of Criminal Procedure Code. 8. Per contra, counsel for the respondent submitted that the Magistrate as well as the Revisional Court did not commit any mistake by rejecting the application on the ground that in absence of any communication under Rule 18(3) of the Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006, the Magistrate has no jurisdiction to deal with the application filed under sections 451, 457 of Criminal Procedure Code and, therefore, this petition sans merit. 9. Heard the learned counsel for the parties. 10. In view of the specific stand taken by the counsel for the applicant before this Court that the applicant does not wish to compound the matter and, therefore, in the light of the judgment passed by the Division Bench of this Court in W.P. No. 15/2016, the only course left open for the authorized authorities is to refer the matter to the Magistrate. 11. Let this exercise be done within a period of twenty days from the date of production of the certified copy of this order before the authorities. Then the applicant may file an application under sections 451, 457 of Criminal Procedure Code afresh which shall be dealt with by the Magistrate in accordance with law. 12. With the aforesaid observations, this petition is disposed off.