IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE:
THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION No.8147/2019 (GM-RES) BETWEEN:
SRI. KUMAR.E S/O ESHWAREGOWDA, AGED ABOUT 38 YEARS, R/AT CHEERANAHALLI VILLAGE, HEBBAL HOBLI, K.R.NAGAR TALUK, MYSORE DISTRICT-34 (By Sri.PRATHEEP.K.C, ADV.) AND STATE OF KARNATAKA REPRESENTED BY THE K.R.NAGAR POLICE STATION, MYSORE DISTRICT-35, REP BY ITS SPP, HIGH COURT OF KARNATAKA, BENGALURU-01 ... PETITIONER ... RESPONDENT (By Sri.S.RACHAIAH, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH CONDITION NO.2 OF IMPUGNED ORDER IN CRL. R.P.433/2018 DTD 09.01.2019 ON THE FILE OF II ADDL SESSIONS JUDGE, MYSURU VIDE ANNX-E; QUASH THE ORDER DTD 10.12.2018 IN CR.NO.353/2018 ON THE FILE OF SENIOR CIVIL JUDGE & JMFC K.R. NAGAR DIRECTING THE PETITIOENR TO PAY RENEWABLE BANK GUARANTEE OF RS.12,00,000/- FOR RELEASE OF TIPPER LORRY BEARING NO. KA-01-C-9326 VIDE PF NO.281/2018 VIDE ANNX-C; AND DIRECT THE TRIAL COURT OF ACCEPT THE INDEMNITY BOND WITH ONE SURETY FOR THE SATISFACTION OF THE TRIAL COURT FOR RELEASE OF TIPPER LORRY BEARING NO. KA-01-C-9326 VIDE PF NO.281/2018 IN CR.NO.353/2018 ON THE FILE OF RESPONDENT POLICE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Though matter is listed for admission, by consent of learned advocates, it is taken up for final disposal.
2. Heard arguments of Sri.Pratheep.K.C, learned counsel for petitioner and Sri.S.Rachaiah, learned High Court Government Pleader for respondent. Perused the records.
3. A complaint came to be registered against the petitioner and three others by K.R.Nagar Police in Crime No.353/2018 for offence punishable under Section 379 of IPC, alleging that they were illegally transporting sand in Tipper lorry bearing registration No.KA-01-C- 9326. On an application filed under Section 451 and 457 of Code of Criminal Procedure (‘Cr.PC’ for short), it was ordered to release said vehicle, on petitioner furnishing bank guarantee for a sum of Rs.12 lakhs, by order dated 10.12.2018. Aggrieved by same, Revision Petition was filed in Crl.R.P.No.433/2018 and learned Sessions Judge by order dated 9.01.2019 allowed said Revision Petition by reducing bank guarantee amount to Rs.8 lakhs. Hence, petitioner is before this Court.
4. The reason assigned by learned Senior Judge for imposing the condition for furnishing bank guarantee by petitioner for release of vehicle is on the ground that Rule 43(8) of Karnataka Minor Mineral Concession Rules, 1994 mandates for insistence of bank guarantee to an extent of twice the value of vehicle, which rule has been incorporated with effect from 18.11.2017. Hence, said condition came to be imposed by trial Judge which has been modified by the revisional Court by reducing the Bank guarantee amount.
6. The discretion to be exercised is based on sound principles and it is not mandatory for learned trial Judge to impose condition for furnishing of bank guarantee and in the instant case, State has not invoked the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 or Rules made therein. As such, said Rule i.e. 43(8) could not have been imported into the impugned order for release of vehicle when offence alleged against the petitioner is one punishable under Section 379 of IPC. Except for the reason of Rule 43(8) indicating imposition of such condition, there is no other ground or reason assigned by learned trial Judge or Revisional Court to impose a condition on the petitioner to furnish bank guarantee for release of the vehicle. While ordering release of movable property, condition should not be harsh or onerous. In other words a condition impossible to perform should not be imposed or to put it differently, under the guise of releasing vehicle, if a condition is imposed, which may not be able to be complied then definitely if would be harsh and stringent. Such conditional order of release would be of no use. In these circumstances, this court is of considered view that the prayer sought for in this writ petition deserves to be granted.
7. Hence, the following order:
ORDER (i) Criminal Petition is allowed.
(ii) Condition No.1 imposed by trial Court and modified by the Revisional Court is hereby modified as under:
i) Petitioner being registered certificate owner of Tipper lorry bearing registration No.KA-01-C-9326 seized under PF 281/2018 is ordered to be released on petitioner executing an indemnity bond for a sum of Rs.12 lakhs with one solvent surety for likesum to the satisfaction of trial Court. However, it is made clear that trial Court shall not insist on solvency certification.
ii) Rest of the conditions remains unaltered.
ln.
SD/- JUDGE