Orissa High Court
Bipin Bihari Padhan vs State Of Odisha & Others .... Opp. ... on 26 September, 2023
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMP No.1285 of 2023
Bipin Bihari Padhan .... Petitioner
Mr. Niranjan Panda, Advocate
-versus-
State of Odisha & Others .... Opp. Parties
Mr. Debasish Biswal, ASC
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 26.09.2023
02. 1. Heard learned counsel for the Petitioner and the State.
2. By means of this application the Petitioner seeks indulgence of this Court for issuance of a Writ of Mandamus directing the Forest Officials for release of the vehicle, i.e. Tractor bearing Registration No. OR-17-D-5781 and its Trolley bearing Registration No. OR-17- D-5782, in compliance with the direction issued by the S.D.J.M., Biramaharajpur in CMA No.06 of 2021, which was affirmed vide order dated 15.03.2023 passed by the learned Sessions Judge, Subarnapur in Criminal Revision No.10 of 2021.
3. The factual matrix giving rise to the present application are that, on 27.01.2021 at about 12.46 P.M. while the Forest Staff of Biramaharajpur Range Forest Area were performing patrolling duty inside Butukhaman Reserved Forest, seized the vehicle, i.e. Tractor bearing Registration No. OR-17D-5781 having Chassis No.37515 and Engine No.304221 and Trolley bearing Registration No. OR-17D-
Page 1 of 9// 2 // 5782 having Chassis No. SSEW1317 engaged in breaking of forest land and transporting the forest produce without having any Transit Permit in the Reserved Forest, and accordingly registered a Forest Offence Case, vide OR Case No.181 of 2020-21 of Biramaharajpur Range U/s. 56 of the Orissa Forest Act, 1972 and forwarded the accused persons involved in the case to the Court of the learned S.D.J.M., Biramaharajpur for trial/awarding punishment under the provision of Section 27(3)(a) of the said Act, 1972.
4. A Confiscation Proceeding U/s. 56 of the Orissa Forest Act, 1972 was initiated against the offending vehicle before the Authorized Officer-cum-Asst. Conservator of Forests, Subarnapur Forest Division, vide OR Case No.181 of 2020-21 of Birmaharajpur Range (C.P. No.21 of 2020-21), pending for trial.
5. While the matter stood thus, the Petitioner being the registered owner of the offending vehicle in question preferred CMC No.06 of 2021 before the learned S.D.J.M., Birmaharajpur praying for a direction to the Range Officer, Birmaharajpur to release the seized vehicle. Learned S.D.J.M., Birmaharajpur vide order dated 01.07.2021 directed the Forest Range Officer to release the vehicle.
6. Being aggrieved by the directions of the learned S.D.J.M., Birmaharajpur, the State of Orissa moved in Criminal Revision before the learned Sessions Judge, Sonepur registered vide Criminal Revision No.10 of 2021. The learned Sessions Judge, Sonepur vide order dated 15.03.2023 affirmed the impugned order of the learned S.D.J.M. Despite the above, as the vehicle of the Petitioner was not Page 2 of 9 // 3 // released by the Forest Authorities, the Petitioner moved here in for a direction as stated above.
7. Mr. Niranjan Panda, learned counsel for the Petitioner, reiterating his prayer, submitted that the Forest Range Officer did not comply the direction of the learned S.D.J.M., Biramaharajpur, as has been affirmed by the learned Sessions Judge and as such the Forest Authorities be directed for release of the vehicle.
8. The Divisional Forest Officer, Subarnapur Forest Division, who has submitted his parawise comments, as reveals from the case record placed before this Court by the learned counsel for the State, inter alia, narrated the manner in which the vehicle was seized by the forest officials, the initiation of the Forest Offence Case vide OR Case No.18 of 2020-21 and the Confiscation Proceeding under Section 56 of the Act, 1972.
9. It is contended by Mr. Debasish Biswal, learned Counsel for the State, that the directions sought for by the Petitioner pursuant to the order passed by the learned S.D.J.M., Biramaharajpur and affirmed by the learned Sessions Judge, Sonepur is not sustainable in the eye of law and is liable to be set aside in view of the initiation of the confiscation proceeding, as the jurisdiction of the common law under the Code of Criminal Procedure gets excluded.
10. It is the stand of the Petitioner that the provision under Sections 451 and 457 of the Cr.P.C. has been brought into application whereby the criminal courts have jurisdiction to assume its power to release the vehicle during pendency of the criminal proceeding before the Magistrate registered as 2(b)CC No.04 of 2021 and direction has been Page 3 of 9 // 4 // rightly issued for release of the vehicle which is akin to the provision under the Code of Criminal Procedure and no jurisdictional error has been committed by the learned Magistrate concerned as well as by the learned Sessions Judge in directing release of the Tractor & Trolley in question.
11. It is apt to mention that the provisions of Sections 56 and 57 of the Orissa Forest Act have been brought into the statute book by amendment. Section 56(1) Orissa Forest act mandates that if a Forest Officer or a Police Officer has reason to believe that a forest offence has been committed in respect of any forest produce, then such produce together with all tools, ropes, chains, boats, vehicles or cattle, etc. used in commission of any such offence, the officer who seizes the property has the duty to make a report of such seizure to the Magistrate having jurisdiction to try the offence. Section 57 authorizes the Forest Officer not inferior to the rank of a Range Officer to release the property seized U/s 56 of the Act on the execution by the owner thereof of a bond for the production of the property so released, if and when required by the Magistrate having jurisdiction to try the offence on account of which the seizure has been made u/s 59. The property seized U/s 56 is liable for confiscation and such confiscation is in addition to any other punishment provided for such offence.
12. In view of the aforesaid specific provisions in the Forest Act and power to release the property seized having been conferred on the Forest Officer u/s 57 of the Act, the question that arises for consideration is whether the impugned order passed by the learned courts below is correct in exercising powers under Sections 451 and Page 4 of 9 // 5 // 457 of the Code of Criminal Procedure. In the matter of Abhaya Charan Choudhury and Others Vs State (1990) 3 OCR 379 this Court had the occasion to deal with a similar matter wherein it held as follows:
"This question came up for consideration before me in Sarat Kumar Malu Vs. State of Orissa. After analyzing the provisions of the Forest Act and the Code of Criminal Procedure and relying upon the decisions of the Supreme Court in the case of State of Andhra Pradesh v. Smt. Maji Begum and Anr. in Civil Appeal No. 1216 of 1979, it was held that when any forest produce together with the vehicle used in committing any forest offence is seized by any Forest Officer in exercise of his power u/s 56 of the Act, then the power to release the property seized lies with the authorities prescribed in the four corners of the provisions of the Forest Act and not with a Magistrate in exercise of his powers under the provisions of the Code of Criminal Procedure. Obviously this decision has not been noticed either by the Magistrate directing release of the vehicle or by the Sessions Judge confirming the order of the Magistrate. This view of mine has again been reaffirmed in another case arising out of a similar provision of Andhra Pradesh Forest Act, 1947 in the case of Divisional Forest Officer and Another Vs. G.V. Sudhakar Rao and Others. In view of the aforesaid authoritative pronouncement of the Supreme Court, I have no doubt in my mind to hold that if the seizure is made under the provision of Section 56 of the Forest Act and the property seized is produced before the Page 5 of 9 // 6 // Divisional Forest Officer for initiation of a proceeding of confiscation, then merely because the factum of seizure is reported to the Magistrate, the Magistrate will have no jurisdiction to invoke the provisions of the Code of Criminal Procedure for interim release of the property in question."
X xx X xx The Court further held that:
"11. On the other hand, the special law providing the special forum for such release, namely Section 57 of the Orissa Forest Act would apply and it would be the Forest Officer who alone would be competent to release the property on such terms and conditions as it thinks fit and proper. The orders of the Magistrate as well as that of the Sessions Judge must be held to be without jurisdiction."
13. Coming back, there is no dispute in the present case that after seizure of the Tractor & Trolley in question U/s 56 of the Act, the Tractor together with the goods was produced before the Divisional Forest Officer, Biramaharajpur and the factum of such seizure was reported to the Sub-Divisional Judicial Magistrate and the persons involved in the offence were produced before the Magistrate. The Forest Officer also intimated the Magistrate that the vehicle has been produced before the Authorized Officer for necessary action in a confiscation proceeding. In this view of the matter, the Magistrate had no jurisdiction to direct release of the vehicle in exercise of powers under Sections 451 of the Code of Criminal Procedure and so is the confirmation by the learned Sessions Judge. It is also held in the Page 6 of 9 // 7 // case of Abhaya Charan Choudhury and Others Vs State (supra) as follows:
"Further, in Sarat Kumar Malu Vs. State of Orissa, I had also indicated that Section 451 of the Code of Criminal Procedure will have no application where the vehicle in question has not been produced before the Magistrate and Section 457 also will have no application, as the vehicle had not been seized by any Police Officer but had been seized by a Forest Officer."
14. In the case of Keril Tiria vs. State of Orissa (Crl. Revision No.882 of 2006) this Court referring to the decisions in the matter of State of West Bengal vs. Sujit Kumar Rana, (2004) 4 SCC 129; in the matter of State of Kerala vs. K. Krishnan, AIR 2004 SC 1851, and in the matter of Divisional Forest Officer, Territorial Division, Sambalpur vs. Ranjit Kaur Raina, (1995)2 OCR 526, also held as follows:
"From the above noted judicial pronouncement one can gather that in case of seizure of vehicle involved in a forest offence by the forest official, the criminal court would have no jurisdiction to release the vehicle in exercise of power u/s.457, Cr.P.C. Similarly, when the vehicle involved in forest offence is seized by the police authorities and the vehicle along with the forest produce are handed over to the forest authorities for initiating confiscation proceeding, then also the criminal court would have no power under Section 457, Cr.P.C. Such view is logical, as otherwise this may lead to conflict of decision of the Magistrate and the Page 7 of 9 // 8 // Authorized Officer. Only when the vehicle involved in a forest offence is seized by the police authorities and is produced before the Magistrate and no confiscation proceeding is pending, then only the Magistrate would have jurisdiction to pass any order in exercise of power u/s.457, Cr.P.C."
15. In the said decision this Court also held that in the case of K. Krishnan (supra) as well as in the case of Section Forest Officer vs. Mansur Ali Khan, (2004) 1 SCC 293, the Apex Court had the occasion to observe that the vehicle seized for committing forest offence shall not normally to be released to the party till culmination of all the proceedings in respect of the said offence, as liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce, which, if not protected, is bound to affect the mother earth and the atmosphere surrounding to it. It can be gathered from the observation of the Apex Court that in the face of the pendency of a confiscation proceeding related to forest offence, the concerned authorities as well as the criminal court and the High Court should be reluctant to release the vehicle in the interim custody, as that would be against the interest of the environment and the society.
16. In the present case also the vehicle has not been produced before the Magistrate. Therefore, even U/s 451 of the Criminal Procedure Code, the Magistrate could not have directed release of the vehicle in question. On that score also, the order of the Magistrate directing release of the Tractor as well as the order of the learned Sessions Judge confirming the same is without jurisdiction. This Court, Page 8 of 9 // 9 // accordingly set aside the orders of the learned courts below. However, the Petitioner, if so advised may move for release of the vehicle before proper forum in accordance with. The CRLMP is accordingly dismissed, but in the circumstances without any order as to costs.
( Chittaranjan Dash ) Judge S.K. Parida Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 29-Sep-2023 13:23:34 Page 9 of 9