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2020 DIGILAW 1686 (KAR)

Devappa v. State Of Karnataka

2020-09-03

S.R.KRISHNA KUMAR

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JUDGMENT S.R. Krishna Kumar, J. - This petition takes exception to the impugned order dated 19.10.2019 passed by the Civil Judge & JMFC, Yelburga in C.C.No.417/2019 rejecting the application filed by the petitioner seeking release of truck bearing registration No.KA-26/A-5309, which was seized by the respondent authorities under the provisions of Rule 43 of Karnataka Mines and Minerals (Concession Rules) 1994, (for short 'the Rules). Aggrieved by the aforesaid order dated 19.10.2019, the petitioner filed the revision petition in Criminal Revision Petition No.70/2019, which was also dismissed by the Sessions Court vide order dated 04.01.2020. Aggrieved by the aforesaid orders, petitioner is before this Court by way of the present petition. 2. Learned counsel for the petitioner submits that the impugned order passed by the learned Magistrate is vitiated in as much as the Court has come to the incorrect conclusion that the application ought to have been filed before the Special Court and not before the Magistrate. In this context, it is submitted that the vehicle having been seized by the respondent and custody having been submitted before the Magistrate before whom the proceedings were pending, the impugned order to the ef fect that the application for release of vehicle ought to have been made before the Special Court is erroneous and the same deserves to be quashed. 3. Secondly, it is contended that the Sessions Court also committed an error in dismissing the revision petition on the ground that no case is made by the petitioner for release of the vehicle. It is therefore contended that the impugned orders passed by both the Courts are illegal and arbitrary and the same deserves to be quashed by this Court. 4. Per contra, learned AGA would support the impugned orders and seeks dismissal of the petition. 5. The question with regard to the release of vehicle seized for commission of any alleged offences is no long res-integra in view of the decision of the Apex Court in the case of Sunderbhai Ambalal Desai and Another Vs State of Gujarat, (2002) 10 SCC 283 , wherein the Apex Court has laid down the parameters for directing release of the vehicle. Applying the law laid down by the Apex Court in Sunderbhai 's case supra, I am of the considered opinion that the impugned order passed by the learned Magistrate as well as the Sessions Court are erroneous and the same deserves to be set aside. 6. Insofar directing the petitioner to furnish bank guarantee to an extent of double the value of the vehicle is concerned as required under Rule 43(8) of the Rules is concerned, learned counsel for the petitioner places reliance upon the decision of this Court in the case of Mohammad Shameer Vs State of Karnataka in Criminal Revision Petition No.988/2019 dated 22.10.2019, in order to contend that though the said Rule 43(8) stipulates that the person applying for release of vehicle has to furnish the bank guarantee of an amount equivalent to double the value of the vehicle, the said condition is not mandatory and the same can be relaxed under certain conditions. It is further contended that having regard to the dif ficulties faced by the petitioner, it is necessary that the conditions regarding furnishing bank guarantee as required under Rule 43(8) may be relaxed by this Court, if release of the vehicle is granted in favour of the petitioner. 7. A perusal of the decision of this Court in Mohammad Shameer's case supra willindicate that at paragraph No.13, this Court has come to the conclusion that under certain circumstances having regard to the depreciation and damage which would be caused to the vehicle on account ofit being unused resulting in fully scrapping of the vehicle, the condition directing furnishing of bank guarantee for double the value of the vehicle can be relaxed. 8. In my considered opinion, in view of the decision of Apex Court Sunderbhai 's case and this Court in Mohammad Shameer's, case I pass the following; ORDER (a) The petition is allowed. (b) The impugned orders dated 19.10.2019 passed by the Civil Judge & JMFC, Yelburga in C.C.No.417/2019 and Criminal Revision Petition No.70/2019, which was also dismissed by the Sessions Court vide order dated 04.01.2020, are hereby set aside. (c) The concerned Court is directed to release the Lorry bearing registration No.KA-26/A-5309 in favour of the petitioner-RC owner subject to the following conditions; (1) The petitioner-Rc owner shall furnish indemnity bond for the value of the vehicle with two sureties for the likesum to the satisfaction of the jurisdictional trial Court. (c) The concerned Court is directed to release the Lorry bearing registration No.KA-26/A-5309 in favour of the petitioner-RC owner subject to the following conditions; (1) The petitioner-Rc owner shall furnish indemnity bond for the value of the vehicle with two sureties for the likesum to the satisfaction of the jurisdictional trial Court. (2) He shall also file an affidavit to the effect that he will not dispute the identity of the vehicle during the course of trial and for marking the photographs of the said vehicle or he will produce the vehicle as and when it is required before the Court. (3) The Investigating Of ficer is directed to take the photographs of the said vehicle from all the angles and after obtaining the consent of the owner in the form of affidavit, the same may be considered as a part and parcel of the said records and jurisdictional RTO may be informed to keep a charge and not to transfer ownership of the said vehicle till the said case is disposed as against the accused. (4) Owner should not use the said vehicle for similar types of of fences. In the event of repeated use, the vehicle will not be released.