Allahabad High Court
Vidya Nand Yadav vs State Of U.P. on 5 October, 2021
Equivalent citations: AIRONLINE 2021 ALL 3248
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- CRIMINAL REVISION No. - 1629 of 2021 Revisionist :- Vidya Nand Yadav Opposite Party :- State of U.P. Counsel for Revisionist :- Akhilesh Singh,Shivam Yadav Counsel for Opposite Party :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Shivam Yadav, learned counsel for the revisionist and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing along with Ms. Sushma Soni, learned Additional Government Advocate for the State-opposite party.
2. Present criminal revision has been preferred seeking to set-aside the order dated 7.7.2021, passed by the Chief Judicial Magistrate, Kushinagar at Padrauna, whereby the application filed by revisionist under Section 457 of the Code of Criminal Procedure, 19731, for release of truck seized under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 19572, has been rejected.
3. Pleadings of the case indicate that the vehicle owned by the revisionist, a truck carrying gitti (a minor mineral), was seized by the Mines Inspector, Kushinagar on 19.4.2021, and a report was forwarded to the District Officer for further proceedings under Rule 74 of the Uttar Pradesh Minor Minerals (Concession) Rules, 19633. The revisionist claims to have approached the District Officer and thereafter he filed an application under Section 457 of the Code before the Chief Judicial Magistrate, Kushinagar at Padrauna, on 3.6.2021, seeking release of the vehicle. The Chief Judicial Magistrate, after calling for a report from the Mines Inspector, passed an order on 7.7.2021, rejecting the application filed under Section 457 of the Code.
4. Learned counsel for revisionist has sought to assail the aforesaid order dated 7.7.2021, passed by the Chief Judicial Magistrate, by seeking to contend that since the vehicle of the revisionist had been seized, learned Magistrate has committed an error in rejecting the application seeking release of the vehicle, despite the necessary powers in regard to the same being available under Section 457 of the Code. It is submitted that order passed by the Magistrate is based on non-application of mind and is illegal and unsustainable. Learned counsel further submits that the vehicle, which is lying with the authorities, is liable to be released. In support of his submissions, learned counsel has placed reliance upon the decisions in the case of Sunderbhai Ambalal Desai vs. State of Gujarat4, Rajendra Singh vs. State of U.P. and Others5, Smt. Sudha Kesarwani vs. State of U.P. and Another6, and Smt. Manu Devi vs. State of U.P. and Others7.
5. Learned Additional Government Advocate-I has controverted the aforesaid contention by submitting that the vehicle/truck in question, of which the revisionist claims ownership, was intercepted while illegally transporting gitti (a minor mineral) and was seized by the Mines Inspector on 19.4.2021, in exercise of powers under Section 21(4) of the MMDR Act and a report was forwarded to the District Officer for initiation of proceedings under Rule 74 of the Concession Rules. In the meantime, the revisionist submitted an application dated 23.4.2021 to the District Magistrate, seeking compounding of the offence, and an order dated 28.05.2021 was passed directing the revisionist to deposit the requisite amount towards compounding fee as per the relevant Government Order, whereupon the compounding was to be made and the release of the vehicle would have followed. It has been pointed out that the revisionist did not deposit the requisite compounding fee and moved an application under Section 457 of the Code, before the Chief Judicial Magistrate, which has been rightly rejected as being not entertainable.
6. Learned Additional Government Advocate-I points out that the revisionist having applied for compounding and an order having also been passed thereon by the District Magistrate, in case he was aggrieved, it was open to him to avail the statutory remedy of filing an appeal under Rule 77 and thereafter a revision under Rule 78 of the Concession Rules. It is submitted that the necessary ingredients for invocation of powers under Section 457 of the Code having not been made out, the Magistrate has rightly refused to entertain the said application.
7. The question, thus, falls for consideration is as to whether at the stage where the vehicle has been seized in exercise of powers under Section 21(4) of the MMDR Act with an order having been passed upon an application seeking compounding of the offence, and no complaint having been made by the person authorised before the jurisdictional Magistrate, the provisions under Section 457 of the Code, seeking release of the vehicle, could have been invoked.
8. In order to appreciate the rival contentions on the aforesaid legal issue, the relevant statutory provisions under the MMDR Act, which is an Act to provide for the development and regulation of mines and minerals under the control of the Union, may be referred to.
"4. Prospecting or mining operations to be under licence or lease.-- "(1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder" ;
Provided that nothing in the sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement:
Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Explorations and Research of the Department of Atomic Energy of the Central Government, the Directorate of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of Clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013), and any such entity that may be notified for this purpose by the Central Government.
(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.
(2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.
(3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under Section 18, undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease.
21. Penalties.-- (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) of Section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.
(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land and for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.
(5) Whenever any person raise, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable.
22. Cognizance of offences.-- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or State Government.
23-A. Compounding of offences.--(1) Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint to the court with respect to that offence, on payment to that person for credit to the Government, of such sum as that person may specify:
Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence.
(2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, in custody, shall be released forthwith."
9. Section 4 of the MMDR Act, and in particular, sub-section (1-A) thereof, puts a total restriction on the transportation or storage of any mineral, otherwise than in accordance with the provisions of the Act and the Rules made thereunder. Section 21 provides for penalties in respect of contravention of the provisions of sub-section (1-A) of Section 4. As per terms of sub-section (4) of Section 21, whenever any person raises, without any lawful authority, any mineral from any land and for that purpose, uses any mineral, tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing, shall be liable to be seized by an officer or authority especially empowered in this behalf. Sub-section (4-A) provides that the things seized under sub-section (4) shall be liable to be confiscated by an order of the Court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such Court.
10. Section 22 relates to cognizance of offence and in terms thereof no court shall take cognizance of any offence punishable under the MMDR Act or any rules made thereunder except upon complaint in writing by a person authorised in this behalf by the Central Government or the State Government.
11. Section 23-A is in respect of compounding of offences wherein any offence punishable under the Act or any rules made thereunder, may, either before or after the institution of the prosecution, be compounded by the person authorised to make a complaint, on payment to that person for credit to the Government of such sum as that person may specify. As per terms of sub-section (2), where an offence is compounded under sub-section (1) no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of offence so compounded and the offender, in custody, shall be released forthwith.
12. Under the Concession Rules, the subject matter relating to contraventions, offences and penalties are dealt with under Chapter VII, and Chapter VIII contains miscellaneous provisions. The provisions of the Concession Rules, which are relevant for the purpose of the controversy at hand, may be adverted to.
"74. Cognizance of offences.--(i) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the facts constituting such offences by the District Officer or by any officer authorised by him in this behalf.
(ii) No court inferior to that of a Magistrate of the first class, shall try any offence under these rules.
75. Compounding of offence.-- (1) Any offence punishable under these rules may, either before or after the institution of the prosecution be compounded by the District Officer or by such officer as the State Government may by general or special order authorise in this behalf on payment to the State Government of such sum as such officer may specify:
Provided that in the case of an offence punishable with fine only no such sum shall exceed the maximum amount of fine which may be imposed for that offence.
(2) Where an offence is compounded under sub-rule (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded and the offender if in custody, shall be released forthwith.
(3) The officer compounding the offence under sub-rule (1) shall maintain a register showing the following details:
(a) Serial number (by financial year).
(b) Name and address of the offender.
(c) Date and details of offence.
(d) Sum of compounding amount and date of its payment.
(e) Signature of the officer with date and seal.
77. Appeal.-- An appeal against an order passed under these rules by the District Officer or the Committee shall lie to the Divisional Commissioner within a period of sixty days from the date of communication of such order to the party aggrieved.
78. Revision.-- The State Government may, either suo moto at any time or on an application made within ninety days from the date of communication of the order, call for an examination of the record relating to any order passed or proceeding taken by the District Officer Committee, Director or the Divisional Commissioner under these rules and pass such orders as it may think fit."
13. Rule 74 relates to cognizance of offence and as per terms thereof, no court shall take cognizance of any offence punishable under the rules except on a complaint in writing of the facts constituting such offence by the District Officer or by any officer authorised by him in this behalf.
14. Rule 75 is in respect of compounding of offence which provides that any offence punishable under the rules made before or after institution of the prosecution, be compounded by the District Officer or by any such officer as the State Government may authorise in this behalf on payment to the State Government of such sum as such officer may specify. Sub-rule (2) mandates that where an offence is compounded under sub-rule (1), no proceeding or further proceeding shall be taken against the offender in respect of offence so compounded.
15. Rule 77 provides for an appeal to a Divisional Commissioner against an order passed under the rules by the District Officer or the Committee and Rule 78 contains the revisional powers of the State Government.
16. Section 457, which falls under Chapter XXXIV of the Code and pertains to disposal of property, may also be referred to, and the same reads as follows :-
"457. Procedure by police upon seizure of property.--(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
17. In the case at hand, the truck stated to be owned by the revisionist was intercepted for illegally transporting certain minor minerals in contravention with the provisions of the MMDR Act and was accordingly, seized by the Mines Inspector on 19.4.2021, and a report in regard to same was forwarded to the District Officer for initiation of prosecution under Rule 74 of the Concession Rules. The revisionist at this stage moved an application dated 23.4.2021 for compounding, on which the District Magistrate passed an order dated 28.5.2021 directing release of the vehicle upon deposit of the requisite amount towards compounding as per the relevant government order.
18. It appears that since the revisionist had sought compounding of the offence, proceedings for prosecution by filing a complaint under Section 22/Rule 75 were not initiated and also no order for confiscation under sub-section (4-A) of Section 21 of the MMDR Act was made.
19. The revisionist did not make the requisite deposit pursuant to the order passed by the District Officer on his application seeking compounding of the offence, nor did he seek the statutory remedy of an appeal under Rule 77, in case he was aggrieved with the order passed by the District Officer. The revisionist, instead, moved an application before the Chief Judicial Magistrate, seeking to invoke the provisions under Section 457 of the Code and it was turned down as not being entertainable.
20. As already noted above, the vehicle owned by the revisionist had been intercepted for illegally transporting certain minor minerals in contravention with the provisions of the MMDR Act and accordingly, the same was seized by the Mines Inspector in exercise of powers referable to sub-section (4) of Section 21 of the Act. Upon seizure of the vehicle under sub-section (4), the same was liable to be confiscated as per terms of sub-section (4-A), by an order of the court competent to take cognizance of the offence under sub-section (1) and was to be disposed of in accordance with the directions to be passed by such court. The cognizance of the offence punishable under the Act or the rules thereunder, in respect of contraventions made, could be taken by the court concerned upon complaint by the District Officer or any officer authorised by him in this behalf.
21. As per the provisions relating to compounding of offence under Section 23-A read with Rule 75, any offence punishable under the Act/Rules, could be compounded, before or after the institution of prosecution, by the District Officer/officer authorised. Further, as per the provisions contained under sub-section (2) of Section 23-A read with sub-rule (2) of Rule 75 upon the offence being compounded no proceedings/further proceedings are to be taken against the offender in respect of offences so compounded.
22. In the instant case, consequent to the vehicle having been seized under sub-section (4) of Section 21, and before a complaint could be moved by the officer authorised before the Magistrare concerned whereupon an order of cognizance or confiscation could be passed, the revisionist sought compounding of the offence by moving an application before the District Officer which was allowed and an order was passed directing him to deposit the requisite sum whereupon the compounding was to be made and the vehicle was to be released.
23. The revisionist neither deposited the requisite compounding fee to get the offence compounded and the vehicle released, nor availed the statutory remedy of appeal under Rule 77 and a revision under Rule 78 of the Concession Rules, in case he was aggrieved with the order passed by the District Officer upon the application seeking compounding. The revisionist, instead moved an application before the Chief Judicial Magistrate seeking to invoke the provisions under Section 457 of the Code.
24. The facts as noticed above would go to show that upon the vehicle having been seized and before any complaint could be filed by the authorised officer for cognizance of the offence whereupon the competent court could have passed an order of confiscation, the revisionist moved an application seeking compounding of offence and in view of the bar contained under sub-section (2), no proceeding/further proceeding could be taken against him in respect of offence of which compounding had been sought.
25. It may be apposite to refer to the decision in the case of Jayant and Others vs. State of Madhya Pradesh8, for the proposition that in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A of the MMDR Act, in view of sub-section (2) thereof, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rules made thereunder. The observations made in the judgement, in the context of Section 23-A, are being extracted below:
"5.4. Section 23-A of the MMDR Act contemplates the compounding of offence under the MMDR Act. Therefore, the Rules made under the MMDR Act contain provisions for compounding of offence. Sub-section (2) of Section 23-A places a bar on proceedings or further proceedings, when the offences have been compounded under sub-section (1). Therefore, once the proceedings have been compounded under the Act or Rules made thereunder, no further proceedings can lie. ...
17.1. Section 23-A as it stands today has been brought on the statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any Rules made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as they person may specify. Sub-section (2) of Section 23-A further provides that where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the officer in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith. Thus, the bar under sub-section (2) of Section 23-A shall be applicable with respect to the offences under the MMDR Act or any Rules made thereunder.
21.5. In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub-section (2) of Section 23-A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any Rules made thereunder so compounded. ..."
26. It would be in the backdrop of the aforestated fact situation that the question with regard to maintainability/entertainability of the application filed by the revisionist before the Magistrate under Section 457 of the Code, would be required to be considered.
27. As noted above, the power of the Magistrate seeking release of the vehicle under Section 457 of the Code was sought to be invoked at a stage, where no complaint had yet been moved by the authorised officer before the competent court and neither any cognizance had been taken, nor the court had passed any order of confiscation.
28. Section 457 of the Code empowers the Magistrate to pass orders for disposal of property which is seized by the police and not produced in court during inquiry or trial whenever the seizure of property by the police has to be reported to a Magistrate under the provisions of the Code. The section would be applicable only if the following two conditions are satisfied: (i) the seizure of property by a police officer is reported to a Magistrate under the provisions of the Code; and (ii) such property is not produced before a criminal court during an enquiry or trial.
29. It is therefore, seen that in order to attract the provisions of Section 457, it is essential that the seizure of property is by a ''police officer', and the same is reported to a Magistrate under the provisions of the Code.
30. The question which therefore arises would be as to whether seizure of the vehicle by a Mines Inspector exercising powers under the MMDR Act can be held to be ''seizure of property by a police officer'.
31. The Police Act, 1861 (Act V of 1861), which is an Act for the regulation of police, would be required to be looked into so as to understand as to the kind of officers who would come within the meaning of the word ''police'. The Preamble of the Act indicates that the enactment was made considering that it was expedient to reorganise the police and to make it a more efficient instrument for prevention and detection of crime. Section 1 of the Police Act, which is the interpretation clause, defines the word ''police' as including all persons who shall be enrolled under the Act. Looking to the object of the Act, the police force would primarily be seen to have been organised as an instrument for the prevention and detection of crime and in view thereof the term ''police officer' would refer to those officers who are conferred with the powers for the effective prevention and detection of crime in order to maintain law and order.
32. It can, therefore, be said that a person who is a member of the police force can be said to be a ''police officer', and a person can be held to be a member of the police force only when he holds his office under any of the enactments dealing with the police. There being no statutory definition of the expression ''police officer', it can be stated that a police officer is a person whom any statute or other provison of law calls such, or, on whom it confers all, or, substantially all the powers and imposes the duties of a police officer.
33. The meaning of the expression ''police officer' in the context of Section 25 of the Evidence Act and the question as to whether a customs officer can be held to be a police officer were subject matter of consideration in The State of Punjab v. Barkat Ram9, and it was held that though the expression ''police officer' is not to be construed in a narrow way; however, the same cannot be given such a wide meaning as to include such other persons who may have been conferred with certain powers. It was held that merely because some powers with regard to detection of infractions of customs laws have been conferred on officers of the customs department, the same would not be a sufficient ground for holding them to be ''police officer' within the meaning of the term. The observations made in the judgment, relevant to the controversy at hand, are as follows:
"8. The Police Act, 1861 (Act V of 1861), is described as an Act for the regulation of police, and is thus an Act for the regulation of that group of officers who come within the word 'police' whatever meaning be given to that word. The preamble of the Act further says: 'whereas it is expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted as follows'. This indicates that the police is the instrument for the prevention and detection of crime which can be said to be the main object and purpose of having the police. Sections 23 and 25 lay down the duties of the police officers and S. 20 deals with the authority they can exercise. They can exercise such authority as is provided for a police officer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be to enable them to discharge their duties efficiently. Of the various duties mentioned in S. 23, the more important duties are to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear, therefore, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the police Act, that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order.
9. The powers of customs officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines
12. ... the duties of the Customs Officers are very much different from those of the police officers and that their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers.
13. There seems to be no dispute that a person who is a member of the police force is a police officer. A person is a member of the police force when he holds his office under any of the Acts dealing with the police. ..."
34. A similar qustion came up for consideration before a Constitution Bench of the Supreme Court in Badaku Joti Svant v. State of Mysore10, and while considering the powers conferred upon a Central Excise Officer in matters relating to investigating a cognizable case, it was held that a Central Excise Officer can only make a complaint under clause (a) of Section 190(1) of the Code, and his report is not a report made by a police officer. It was held that even if a broad view is taken mere conferment of powers of investigation into a criminal offence under Section 9 would not make the Central Excise Officer a ''police officer'. The observations made in the judgment, in this regard, are as follows:
"6. There has been difference of opinion among the High Courts in India as to the meaning of the words "police officer" used in S. 25 of the Evidence Act. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so-called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned. The leading case in support of this view is Nanoo Sheikh Ahmed v. Emperor, AIR 1927 Bom 4 (FB). The other view which may be called the narrow view is that the words "police officer" in S. 25 of the Evidence Act mean a police officer properly so-called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences, and so on. The leading case in support of this view is Radha Kishun Marwari v. Emperor, AIR 1932 Pat 293 (SB). The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court.
7. ... We shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various provisions of the Act...
10. ... we are of the opinion that mere conferment of powers of investigation into criminal offences under S. 9 of the Act does not make the Central Excise Officer a police officer in the broader view mentioned above. Otherwise any person entrusted with investigation under S. 202 of the Cr.P.C. would become a police officer.
11. ... in these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer-in-charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in S. 25 of the Evidence Act."
35. The expression ''police officer' as held in various judicial authorities, does not include officers of other department on whom certain powers of a police officer are conferred under a particular enactment for certain specific purposes. (See Haru v State of MP11, The State of Punjab v Barkat Ram9)
36. In a case where confiscation proceeding under Section 52 of the Indian Forest Act, 1927 in respect of a vehicle seized for a forest offence had been initiated, it was held that the Magistrate exercising powers under the Code would have no jurisdiction to order for delivery of the vehicle or to entertain an application for release of the vehicle. (See Jagabandhu Mahanta v. Bijay Kumar Kar and Another12)
37. Considering the applicability of the provisions of Section 457 to a seizure by a customs officer, in the case of Assistant Collector of Customs v Smt. Maria Rege and another13, it was held that unless the property in question had been seized by a police officer during inquiry or trial, the criminal court would not get jurisdiction under the section to deal with such seizure and that the customs officer being not a ''police officer' the seizure of property effected by him and disposal thereof, cannot be taken cognizance of by a criminal court under the section.
38. The seizure by a Forest Range Officer under the Wild Life (Protection) Act, 1972 was also held not to attract the provisions of Section 457 of the Code as such officer is not a police officer. (See Babulal Lodhi v State of Madhya Pradesh and another14)
39. The question as to whether an officer of the Railway Protection Force making inquiry under the Railway Property (Unlawful Possession) Act, 1966, could be covered within the meaning of the expression ''police officer' under Section 25 of the Evidence Act or Section 162 of the Code was subject matter of consideration in Balkishan A. Devidayal v. State of Maharashtra15, and it was held that an officer of the Railway Protection Force would not be a police officer, so also would be the position of a Customs or Excise Officer. In this regard, the test evolved in Badaku Joti Svant (supra) by the Constitution Bench was referred to, which is : whether the officer concerned under the special Act, has been invested with all the powers exercisable by the officer- in-charge of a Police Station under Chapter XIV of the Code, qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge sheet) under Section 173 of the Code and it would not be enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code. It was stated thus:-
"54. It may be recalled that the primary test evolved in Badku Joti Savant case by the Constitution Bench, is: Whether the officer concerned under the special Act, has been invested with all the powers exercisable by an officer-in-charge of a police station under Chapter XIV of the Code, qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge-sheet) under Section 173 of the Code. In order to bring him within the purview of a "police officer" for the purpose of Section 25, Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code.
57. In State of U.P. v. Durga Prasad (1975) 3 SCC 210, after carefully examining and comparing the powers of arrest, inquiry and investigation of an officer of the Force under the 1966 Act with those of a police officer under the Code, it was pointed out that such an officer of the RPF does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter XIV of the Code. He possesses but a part of those attributes limited to the purpose of holding the inquiry under the Act. On these premises, it was held that an officer of the RPF making an inquiry under the 1966 Act, cannot be equated with an investigating police officer. In reaching this conclusion, Chandrachud, J. (as he then was), speaking for the court, appears to have applied the same test which was adopted in Badku Joti Savant case, when he observed:
The right and duty of an investigating officer to file a police report or a charge-sheet on the conclusion of investigation is the hallmark of an investigation under the Code. Section 173(1)(a) of the Code provides that as soon as the investigation is completed the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer conducting an inquiry under Section 8(1) cannot initiate court proceedings by filing a police report. ...
The decision in Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828 case, on which Shri Garg relies, was distinguished, as was done in Badku Joti Savant case, on the ground that Jaiswal case involved the interpretation of Section 78(3) of the Bihar and Orissa Excise Act, 1915.
58. In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating "police officer". Thus, judged by the test laid down in Badku Joti Savant, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a "police officer" within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section."
40. Under the scheme of the MMDR Act and the rules made thereunder, as noticed earlier, consequent to a seizure made under sub-section (4) of Section 21, a complaint in writing is to be made by the authorized officer before the jurisdictional court for taking cognizance of the offence as required under Section 22/Rule 74. Sub-section (4-A) provides that anything seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance and shall be disposed of in accordance with the directions of such court.
41. It would, therefore, be seen that in terms of the provisions contained under the MMDR Act and the rules made thereunder, the officer exercising powers under sub-section (4) of Section 21, (the Mines Inspector, in the present case) upon making seizure of a vehicle or any other thing, on account of unlawful transportation, is required to submit a report to the District Officer/Officer authorised for the purpose of making a complaint before the Court concerned for taking cognizance of the offence.
42. The Mines Inspector or the Officer exercising powers of seizure under sub-section (4) of Section 21 cannot in any manner be deemed to be a ''police officer' having not being conferred with any such powers which may be said to be attributable to an investigating ''police officer'. The primary test laid down in the Constitution Bench decision in the case of Badaku Joti Svant (supra), which has been followed in the subsequent judicial authorities, is clearly not satisfied in the facts of the present case.
43. Section 457 of the Code contemplates exercise of jurisdiction by a Magistrate in a case where seizure of the property is by any police officer. The right and duty of an investigating officer to file a police report or a charge sheet on the conclusion of an investigation has been held to be the hallmark of an investigation under the Code and a clinching attribute of an investigating police officer. The aforementioned clinching attribute being lacking in the present case, the seizure made by the Mines Inspector under Section 21(4) of the MMDR Act, cannot be held to be seizure by a ''police officer' so as to bring it within the ambit of Section 457 of the Code. It may be reiterated that mere conferment of certain powers relating to seizure under a particular enactment for certain specific purposes would not make the officer concerned a ''police officer'.
44. In the present case, as noted earlier, before the District Officer/officer authorised could have acted upon the report submitted by the Mines Inspector, consequent to seizure of the vehicle and could have proceeded to make a complaint before the Magistrate for taking cognizance, the revisionist sought compounding of the offence as per the provisions contained under Section 23-A/Rule 75 and an order was passed by the District Officer directing payment of the requisite fee whereupon the offence was to be compounded and the vehicle was to be released. It was in these set of facts that neither any complaint was filed before the concerned Magistrate nor any order of confiscation was passed by the competent court under sub-section (4A) of Section 21.
45. It would therefore be seen that there being no complaint and no cognizance of the offence having been taken, no proceeding could be said to be pending nor could it be said that seizure of the property in question had been reported by any ''police officer' to the competent jurisdictional Magistrate under the provisions of the Code. The necessary ingredients for invocation of the powers under Section 457 of the Code having thus not been fulfilled, the provisions of the section cannot be said to be attracted, and in view thereof the Magistrate has rightly declined to exercise the jurisdiction conferred under the section.
46. In the case of Sunderbhai Ambalal Desai (supra), which is sought to be relied upon on behalf of the revisionist, the subject matter of consideration was a challenge which had been raised to an order of police remand granted to the prosecuting agency for the petitioners therein, who were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477-A and 114 of the Indian Penal Code, 186016 on allegations that they had committed offences during a period of time by replacing of valuable articles retained as case property by other spurious articles, misappropriation of the amount which was kept at the police station, unauthorised auction of the property which was seized and kept in the police custody pending trial and tampering with the records of the police station. The offences which were subject matter of the case were under the Penal Code. The judgment in the case Sunderbhai Ambalal Desai (supra), which is an authority relating to release of vehicles seized in connection with criminal proceedings under general law would not be applicable under the facts of the present case, wherein the seizure of the property has not been reported by any police officer or by any officer authorised competent to file a complaint before the jurisdictional Magistrate.
47. In case of Rajendra Singh vs. State of U.P.5 which is sought to be relied upon by counsel for revisionist, the order passed by the District Magistrate, directing release of the seized minor mineral, was subject matter of consideration and upon taking note of the provision contained under sub-section (4-A) of Section 21 of the MMDR Act, which empowers the Court competent to take cognizance, pass an order of confiscation and also direct disposal of the seized item, it was held that the release order by the District Magistrate was without authority. In the instant case, the revisionist having applied for compounding of the offence soon after seizure of vehicle, proceedings for initiation of prosecution were not initiated and also no order for confiscation was made by the Court concerned. In view of same, the facts of the present case being distinguishable, the judgment in the case of Rajendra Singh would be of no help to the revisionist.
48. The decisions in the case of Awadhesh Tripathi v. State of U.P.17, Smt. Sudha Kesarwani vs. State of U.P. and Another6, Smt. Manu Devi vs. State of U.P. and Others7 and Mohammad Raza vs. State of U.P. and Another18, are all based on distinct facts as in all these cases subsequent to the seizure, a report had been made to the jurisdictional Magistrate whereafter the application for release was made. The fact situation in the present case is entirely distinguishable inasmuch as no report by a District Officer/ Authorised Officer had been placed before the jurisdictional Magistrate for taking cognizance in view of compounding having been sought by revisionist.
49. Having regard to the aforestated facts and in the absence of any material error or illegality having been pointed out in the order passed by the Magistrate declining to exercise its powers under Section 457 of the Code, there is no reason which may persuade the court to exercise its revisional jurisdiction.
50. The revision is accordingly, dismissed.
Order Date :- 05.10.2021 Kirti (Dr. Y.K. Srivastava, J.)