Calcutta High Court (Appellete Side)
Akd & Pa To vs Sattar Khan on 14 July, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
C.R.R. 1878 OF 2016
14.7.2017
Sl. No.17 Ct. No. 28 STATE OF WEST BENGAL akd & PA to . . . PETITIONER J. Bagchi, J. VERSUS SATTAR KHAN . . . OPPOSITE PARTY Mr. Saibal Bapuli Mr. Shekhar Barman Mr. Bibaswar Bhattacharya . . . For The Petitioner [State of W.B.] Mr. Parimal Kumar Dwari Mr. Lalratan Mondal . . . For The Opposite Party Order dated 22nd September, 2015, passed by the learned Additional Sessions Judge, 4th Court, Paschim Medinipur in Criminal Appeal No.08/2015 setting aside the order of confiscation dated 2nd January, 2015, passed by the authorized officer under section 59A of the Indian Forest Act, 1927 and directing release of the vehicle bearing No.WB-41F-1196 to its registered owner, that is, the opposite party herein upon executing a bond of Rs.12 lakhs with an undertaking to produce the same during continuation of the proceeding has been assailed. Mr. Saibal Bapuli, learned advocate appearing for the petitioner-State of West Bengal submitted that the learned Additional Sessions Judge was not authorized to exercise appellate powers under section 59D of the Indian Forest Act, 1927 as amended by West Bengal Act 22 of 1988. He referred to section 59G of the said Act in support of his contention. He further submitted that the expression 'District Judge' in section 59D of the Indian Forest Act creates a 'persona designata' to exercise appellate powers and debars any other court, tribunal or authority to 2 exercise such power. He also submitted that the impugned order suffered from non-application of mind necessitating interference by this Court in exercise of its superintending jurisdiction.
On the other hand, learned advocate appearing for the opposite party relied on the decision of this Court in The State vs. Gurbachan Singh reported in 1992 C. Cr. LR (Cal) 385 and submitted that the same judicial personnel was holding the post of District Judge as well as the Sessions Judge in the district of Jalpaiguri and, therefore, exercise of power by its delegatee, that is, Additional District cum Sessions Judge cannot be said to be without jurisdiction. The short question which, therefore, falls for decision in the instant proceeding is whether the Additional Sessions Judge was empowered to exercise appellate powers under section 59D of the Indian Forest Act. For better appreciation of the issue at hand, a recitation of the relevant provisions of the Forest Act, 1927 is apposite. Sections 59D and 59G of the Indian Forest Act, 1927 (hereinafter referred to as Act of 1927) are set out hereunder:-
"S. 59D. Appeal.-- (1) Any person aggrieved by an order under section 59-A or section 59-C may, within thirty days from the date of communication to him of such order, prefer an appeal to the District Judge having jurisdiction over the area in which the property and the tools, ropes, chains, boats vehicles or cattle have been seized and the District Judge shall, after giving the appellant and the Officer who passed the order an opportunity of being beard, pass an order confirming, modifying or annulling the order appealed against.
(2) The order of the District Judge under sub-
section (1) shall be final and shall not be called in question by any Court.
59G. Bar of Jurisdiction in certain cases.--
Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973, (2 of 1974) or in any other law for the time being in force, the officer authorised under section 59A or the Forest-officer specially 3 empowered under section 59C or the District Judge to whom an appeal may be preferred under section 59D shall have and any other officer or Forest-
officer or court, tribunal or authority shall not have jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of any property or tools, ropes, chains, boats, vehicles or cattle seized under section 52."
A bare perusal of section 59D of the Act of 1927 would show that the authority to exercise appellate powers is vested on the District Judge and by virtue of the non-obstante clause in section 59G thereof, no other court, tribunal or authority than the District Judge is vested with the jurisdiction to make orders in appeal relating to custody, possession, delivery, disposal or distribution of property seized under section 52 of the said Act. Referring to the aforesaid provisions it has been argued that the appellate powers under the statute have been vested in the District Judge as a 'persona designata' and not as a Court. Hence, the Additional District cum Sessions Judge could not have exercised such powers. The question is whether the 'District Judge' could transfer the appeal to the Additional District cum Sessions Judge for disposal in view of the bar under section 59G of the Act of 1927.
The expression 'District Judge' is not defined in the Act of 1927. However, the said expression is defined in section 3(17) of the General Clauses Act as follows:-
"'District Judge' shall mean the judge of a principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction;"
Bengal, Agra and Assam Civil Courts Act, 1887 provides for the classes of Civil Courts in the State of West Bengal and the judges who may exercise judicial powers in such Courts.
Section 3 of the said Act sets out the classes of Civil Courts as follows:- 4
"3. Classes of Courts.-- There shall be the following classes of Civil Courts under this Act, namely-- (1) the Court of the District Judge;
(2) the Court of the Additional Judge; (3) the Court of the Subordinate Judge; and (4) the Court of the Munsif."
Section 4 and 6 lay down the manner of appointment of District Judges and Additional District Judges:-
"4. Number of District Judges, subordinate Judges and Munsifs.-- The State Government may alter the number of District Judges, Subordinate Judges and Munsifs now fixed.
6. Vacancies among Districts or Subordinate Judges.--(1) Whenever the office of District Judge or Subordinate Judge is vacant by reason of the death, resignation or removal of the Judge or other cause, or whenever [an increase in the number of District or Subordinate Judges has been made under the provisions of section 4], the [State Government or, as the case may be, the High Court] may fill up the vacancy or appoint the Additional District Judges or Subordinate Judges. (2) Nothing in this section shall be construed to prevent a State Government from appointing a District Judge or Subordinate Judge to discharge, for such period as it thinks fit, in addition to the functions devolving on him as such District Judge or Subordinate Judge, all or any of the functions of another District Judge or Subordinate Judge, as the case may be."
Section 8 provides that the Additional District Judges shall exercise such function as may be assigned to them by the District Judges. It reads as follows:-
"8. Additional Judges.-- (1) Where the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may, [having consulted] the High Court 5 appoint such Additional Judges as may be requisite.
(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise 5 the same powers as the District Judge.
It is also pertinent to note that in Chapter VI of the Constitution of India entitled 'Subordinate Courts' providing the manner of recruitment and appointment of District Judges, the expression 'District Judge' is to include an 'Additional District Judge' as per Article 236 for the purposes of that Chapter. A conjoint reading of the aforesaid provisions make it evident that the Court of the Additional District Judge does not exercise independent or exclusive jurisdiction from that of the District Judge but is a delegatee of the latter to the extent judicial powers are assigned to it. Hence, Court of the Additional District Judge is a delegatee and not a subordinate Court to that of the District Judge. In Central Talies Ltd., Kanpur vs. Dwarka Prasad, 1961 (1) Cri.L.J. 740, the Apex Court defined 'persona designata' as an 'individual' as opposed to 'a member of a class or as filling a particular character.' It held as follows:-
. . .A persona designata is "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character." (See Osborn's Concise Law Dictionary, 4th Edn., p.
253). In the words of Schwabe, C.J., in Parthasaradhi Naidu v. Koteswara Rao, ILR 47 Mad 369: (AIR 1924 Mad 561) (FB), personae designatae are "persons selected to act in their private capacity and not in their capacity as Judges." The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself forthe purposes of the Eviction Act. The decision of Sapru, J., in the Allahabad case, with respect, was erroneous."
Similarly, in Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, the Apex Court held that the District Judge appointed as 6 appellate authority under section 18 of the Kerala Rent Control Act was not a 'persona designata' as he was appointed by designation and his successor in office was entitled to continue the proceeding from the stage it had arrived at upon the transfer or cessation of officer of the said Judge.
The Court held as follows:-
". . .It is now well settled that an authority can be styled to be persona designata if powers are conferred on a named person or authority and such powers cannot be exercised by anyone else. The scheme of the Act to which we have referred earlier contraindicates such appellate authority to be a persona designata. It is clear that the appellate authority constituted under Section 18(1) has to decide lis between parties in a judicial manner and subject to the revision of its order, the decision would remain final between the parties. Such an authority is constituted by designation as the District Judge of the district having jurisdiction over the area over which the said Act has been extended. It becomes obvious that even though the District Judge concerned might retire or get transferred or may otherwise cease to hold the office of the District Judge his successor in office can pick up the thread of the proceedings from the stage where it was left by his predecessor and can function as an appellate authority under Section 18. If the District Judge was constituted as an appellate authority being a persona designata or as a named person being the appellate authority as assumed in the present case, such a consequence, on the scheme of the Act would not follow..."
Applying the aforesaid ratios to the provisions of the Act of 1927 where the appellate authority is appointed by way of designation and not by name, I am of the opinion that the District Judge exercising his appellate powers under section 59D of the Act acts as a Court and not as a persona designata. The scope of the non-obstante clause in section 59G is to be construed in the light of the aforesaid statutory scheme. Accordingly, I am of the opinion that the said exclusionary 7 clause while obviating the exercise of appellate jurisdiction by any court, tribunal or authority which is independent of the District Judge would not impinge on the latter's power to assign such powers to its delegatee, that is, the Additional District Judge. Hence, I am of the view that the exercise of appellate powers by the Additional District cum Sessions Judge upon transfer of the appeal by the District and Sessions Judge cannot be said to be without jurisdiction.
However, a perusal of the impugned order would show that the appellate authority had failed to consider the reverse burden cast upon the opposite party under section 59B of the Act of 1927 while directing release of the vehicle. Section 59B, inter alia, requires the owner of the vehicle to prove that not only the said owner but also his agent or 'person in charge', that is, the driver of the vehicle lacked knowledge of the offence and had not connived with its commission but had taken reasonable and necessary precaution to prevent the same. Only upon discharge of such burden, an order of release may be passed [Authorised Officer, Jalpaiguri vs. Susanta Banerjee & Anr., 1992 C Cr LR (Cal) 334]. Moreover, the aforesaid burden is to be discharged by proof of relevant facts and not by mere assertion to that effect [State of West Bengal & Anr. vs. Mahua Sarkar, (2008) 12 SCC 763 (para 9-11)]. The appellate authority failed to apply the law correctly in that regard and had illegally directed interim release of the said vehicle.
Accordingly, impugned order dated 22nd September, 2015, is set aside. The matter is remanded to the District Judge who is directed to dispose of the appeal afresh in the light of the aforesaid observations preferably within a month from the date of communication of this order without granting any unnecessary adjournment to either of the parties.
(JOYMALYA BAGCHI, J.)