1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 321 OF 2011. The State of Maharashtra, through Assistant Conservator of Forests, Wani, Tahsil-Wani, District Yavatmal. ... Petitioner. .. Vrs .. M/s. Vaishnavi Earth Movers through Proprietor Shri Anis Giridharlal Raja, Aged about 32 years, Occ-Business, R/o-Ramnagar, Chandrapur, Tahsil and District Chandrapur Through Special Power ofAttoarney Shri Swapnil Sudhkar Kharwade, Aged about 25 years, Occ-Business, R/o-Chikhalgaon, Tahsil Wani, District Yavatmal. ... Respondent. --00-- (Mr. M. P. Badar, Advocate for the petitioner. Mr. De, Advocate for the respondent.) --00-- CORAM : P. V. HARDAS & S. B. DESHMUKH, J J. DATED : 15 th. September, 2011. ORAL JUDGMENT (Per : P. V. Hardas, J.) 2 Rule. 2. Rule returnable forthwith with the consent of learned Counsel for the parties. This petition is decided finally at the stage of admission. 3. The petitioner being aggrieved by the order passed by the Extra Joint Adhoc Additional Sessions Judge, Kelapur, District Yavatmal, dated 16.04.2011 in Misc. Criminal Application No. 4 of 2011, has filed the present petition. The dispute between the parties can be examined and can be found to be centered around a very narrow periphery of facts. In the light of that we do not propose to advert or dilate on the facts in detail but would state such facts as are necessary for the decision of this petition. 4. It appears that the petitioner has preferred an application under Section 457 of the Code of Criminal Procedure, seeking release of his machine JCB Machine on Supratnama. The JCB Machine bears Registration No. CG-04/DB-4978, had been seized in Crime No. 31 of 2002, under Section 26 (1) (a) (b) (f) (h) of the Indian Forest 3 Act, 1927. It appears that the application filed by the petitioner came to be rejected by the learned Judicial Magistrate, First Class, Wani. Normally, the respondent being aggrieved by the order of rejection should have availed the remedies which were available to the respondent in law for challenging the said order. The respondent, however, it appears chose to file an application under Section 457 of the Code of Criminal Procedure seeking release of the JCB Machine on Supratnama to the Sessions Court at Kelapur, District Yavatmal. 5. Mr. De, the learned Counsel for the respondent, confirms on instructions that the respondent had not filed either appeal or revision for challenging the order passed by the learned Judicial Magistrate, First Class, Wani. Upon examining the relief sought for in the said application filed at the behest of the respondent it is apparent that there is no challenge to the order passed by the learned Judicial Magistrate, First Class, Wani, rejecting the prayer of the respondent for release of the vehicle on Supratnama. Thus, by no stretch of imagination it can be concluded that the proceedings filed by the respondent before the Sessions Court at Kelapur were either in the nature of appeal or revision. The aforesaid proceedings were 4 simply an application which was filed before the Sessions Court at Kelapur, seeking the release of JCB machine on Supratnama. 6. It is undisputed fact before us, in the light of the order passed by the learned Judicial Magistrate, First Class, Wani, that an application simplicitor under Section 457 of the Code of Criminal Procedure was not maintainable before the Sessions Court. Be that as it may, the Sessions Court after hearing the petitioner and the respondent passed the impugned order dated 16/04/2011 directing the release of the said JCB Machine on Supratnama to the respondent on certain conditions. Those conditions may usefully be reproduced in this Judgment. The first condition which was imposed by the Sessions Court in its impugned order was that the appellant i.e. present respondent shall produce the said vehicle as and when required before the Forest Officer or the Court, (2) the present respondent shall not alienate the said JCB Machine in any manner to others and keep it in a safe custody till disposal of the trial. 7. Mr. De, learned Counsel for the respondent has stated before us at the bar that the respondent has scrupulously followed 5 the aforesaid conditions as vehicle is now is his custody pursuant to the order impugned in the present petition. 8. Since, an application simplicitor was not maintainable before the Sessions Court and the Sessions Court has allowed the aforesaid application, we have no other alternative but to allow the present petition and quash and set aside the impugned order. Mr. De, learned Counsel for the respondent has stated that the respondent would be deprived of his right to challenge the order passed by the learned Judicial Magistrate, First Class, Wani, in the event, this Court does not grant liberty to the respondent. We do not see any impediment whatsoever in acceding the request of the learned Counsel for the respondent. We, therefore, accordingly grant liberty to the respondent to file such proceedings as are maintainable in the Court for challenging the order passed by the learned Judicial Magistrate, First Class, Wani, rejecting the application of the respondent for release of the JCB Machine on Supratnama. The learned Counsel for the respondent states that the aforesaid proceedings would be filed in the competent Court within 10 days from today. We, therefore, direct that the vehicle shall remain in the 6 custody of the respondent for a period of 15 days from today and the respondent shall scrupulously observe the conditions imposed by the Sessions Court in its order dated 16/04/2011. The Court dealing with the proceedings, in the event, filing by the respondent, shall decide the same, including a prayer for interim custody of the JCB Machine, in accordance with law, without being influenced by any observations which may have been made by us in this Judgment. 9. Writ Petition is accordingly allowed and the impugned order is hereby quashed and set aside and liberty as stated above is granted to the respondent. In the circumstances, there shall be no order as to costs. 10. Rule made absolute on the above terms. JUDGE JUDGE Deshmukh