Crl.R.C.(MD)No.1218 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 13.03.2024
Pronounced on : 28.03.2024
CORAM
THE HONOURABLE MR.JUSTICE VIVEK KUMAR SINGH
Crl.R.C.(MD)No.1218 of 2023
and
Crl.M.P.(MD) No.15643 of 2023
John Bens Dhas .. Petitioner
Vs.
The State rep. by
The Sub Inspector of Police,
Karukal Police Station,
Kanyakumari District at Nagercoil.
Crime No.197 of 2023 ... Respondent
PRAYER : Criminal Revision Case is filed under Sections 397 r/w 401
of the Criminal Procedure Code, to call for the records pertaining to the
impugned order, dated 19.10.2023 passed by the learned Principal
Sessions Judge, Kanyakumari District at Nagercoil made in Cr.M.P.No.
5203 of 2023 and set aside the same and consequently direct the Court
below to return the vehicle bearing Registration No.TN-75-F-7597
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Crl.R.C.(MD)No.1218 of 2023
(TATA 407 Tipper) to the petitioner.
For Petitioner : Mr.S.C.Herold Singh
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
ORDER
With the consent of both Mr.S.C.Herold Singh, learned
counsel appearing for the petitioner and Mr.A.Thiruvadi Kumar,
learned Additional Public Prosecutor appearing on behalf of the State,
the present Criminal Revision Petition has been taken up for final
disposal at the admission stage itself.
2. The learned counsel for the petitioner would submit that
the petitioner is the owner of the alleged vehicle viz., TATA 407 Tipper
bearing Registration No.TN-75-F-7597 and the said vehicle was
involved in transportation of red sand without any valid permit and
hence, a case was registered in Crime No.197 of 2023 for the offences
punishable under Sections 379 of IPC and thereafter, the said vehicle
was seized and produced before the concerned Jurisdictional
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Crl.R.C.(MD)No.1218 of 2023
Magistrate and the same is being in the custody of the Court in RPR
No.244 of 2023. Thereafter, the petitioner had filed a petition in
Cr.M.P.No.5203 of 2023 before the Court below seeking return of the
vehicle and the same was dismissed. Challenging the same, the present
Criminal Revision is filed.
3. The learned counsel for the petitioner would further
submit that the trial Court negatived the relief sought for by the
petitioner in the light of the judgment of this Court in Crl.R.C(MD)
No.470 of 2023 dated 11.10.2023. The petitioner has also released on
bail on 04.07.2023 and hence, he prays for allowing the Criminal
Revision.
4. The learned Additional Public Prosecutor would submit
that if the custody vehicle is handed over to the petitioner, the vehicle
might be utilized for the similar purpose in future and there is every
possibility to sell the vehicle to some third party and also to alter the
vehicle which may affect the trial proceedings.
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Crl.R.C.(MD)No.1218 of 2023
5. It is the contention of the learned Additional Public
Prosecutor is that in view of the order dated 29.01.2024 passed by this
Court in Crl.O.P.No.646 of 2024 in Annadurai Vs. The Inspector of
Police, Kurisilapet Police station, Thirupathur District, the present
case has to be remanded back to the concerned Judicial Magistrate for
deciding the matter. The relevant portion of the order is extracted
hereunder :
“30.In view of the aforesaid discussion, the legal
position can be summarised as under:
(a)The power to initiate confiscation
proceedings and issue directions for release/disposal
of the property under Section 21(4-A) of the MMDR
Act, 1957 lies with the Court and not with any other
authority;
(b)Section 21(4-A) expressly states that the
Court competent to initiate confiscation proceedings
and issue directions for the disposal of the seized
material is the court competent to take cognizance of
the offence under Section 21(1) of the Act;
(c)The Special Court constituted under Section
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Crl.R.C.(MD)No.1218 of 2023
30-B of the MMDR Act, 1957 is invested with the
powers of a Court of Session under Section 30-C.
Consequently, the Special Court being a Court of
Session cannot directly take cognizance of an offence
under the Act in view of the bar contained in Section
193 Cr.P.C and in the light of the law laid down in
paragraph 38 of the decision in Pradeep S. Wodeyar
v. State of Karnataka, (2021) 19 SCC 62;
(d)As a consequence, a complaint under
Section 21 of the MMDR Act, 1957 can be filed only
before the jurisdictional Magistrate empowered to
take cognizance of the offence (State (NCT of
Delhi) v. Sanjay, (2014) 9 SCC 772, Kanwar Pal
Singh v. State of U.P., (2020) 14 SCC 331and Jayant
v. State of M.P., (2021) 2 SCC 670), and not before
the Special Court;
(e)Ex-consequenti, the Court for the purposes
of Section 21(4-A) is the Court of the Magistrate
since it is that Court which is empowered to take
cognizance of the offences under Section 21(1).
Hence, an application for release of vehicle will lie
only before the jurisdictional Magistrate;
(f)The decisions of this Court in Muthu v
District Collector (2018 SCC Online Mad 13985), the
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Crl.R.C.(MD)No.1218 of 2023
order passed in review dated 09.09.2019, the decision
of the Full Bench in S. Kumar v District Collector
(2023) 3 MLJ (Cri) 536 and that of the learned single
judge Ramar v The State (Cr R.C MD 470 of 2023)
dated 11.10.2023, to the extent that it is inconsistent
with the decisions of the Supreme Court in State
(NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, Kanwar
Pal Singh v. State of U.P., (2020) 14 SCC 331and
Jayant v. State of M.P., (2021) 2 SCC 670 and
paragraph 38 of the decision in Pradeep S. Wodeyar
v. State of Karnataka, (2021) 19 SCC 62, as
discussed above, do not lay down the correct law.”
6. Considering the facts and circumstances of the case and
also in the light of the order passed by this Court in Crl.O.P.No.646 of
2024 dated 29.01.2024 as stated supra, without going into the merits of
the case, this Court disposes the present Criminal Revision Petition and
the matter is remitted back to the concerned Jurisdictional Magistrate,
with a direction to the learned Judicial Magistrate, to consider the
matter after hearing the petitioner and pass appropriate orders on its
own merits and in accordance with law, as expeditiously as possible,
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Crl.R.C.(MD)No.1218 of 2023
preferably, within a period of two weeks from the date of receipt of a
copy of this order. Consequently, the connected miscellaneous petition
is closed.
28.03.2024
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
PKN
Copy to
1. Principal Sessions Court, Nagercoil.
To
1. The Sub Inspector of Police,
Karukal Police Station,
Kanyakumari District at Nagercoil.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD)No.1218 of 2023
VIVEK KUMAR SINGH, J.
PKN
Crl.R.C.(MD)No.1218 of 2023
28.03.2024
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