Karnataka High Court
Anjanakumar vs The State Of Karnataka, on 14 March, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 14th Day of March 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
Criminal Revision Petition No. 100248/2016
Between:
1. Anjanakumar s/o late Byalappa,
Age: 40 years, Occp: Business,
R/o: Devannana Palya,
Dasanapura Post, Bengaluru North.
2. A.V. Balakrishna Gouda,
S/o late A.G. Venkatesh,
Age: 32 years, Occp: Business,
R/o: Adaki Maranahalli,
Makli Post, Bengaluru North.
3. Muniraju s/o A.H. Ramaiah,
Age: 45 years, Occp: Business,
R/o: Adaki Maranahalli,
Makli Post, Bengaluru North.
4. J. Machchendrappa s/o Jayanna,
Age: 45 years, Occp: Business,
R/o: Konasagara-1, Netranahalli
Village, Molakalmuru Taluk, Dt: Chitradurga.
- Petitioners
(By Sri Neelendra D. Gunde, Advocate)
And
The State of Karnataka,
By RFO, Gudekote Range, Ballari District,
represented by State Public Prosecutor,
High Court Building, Dharwad-1.
- Respondent
(by Smt. Veena Hegde, HCGP)
2
This Criminal Revision Petition is filed under Section of
Cr.P.C., praying to set aside the order dated 11.07.2016 passed
by the III Addl. Dist. & Sessions Judge, Ballari (sitting at
Hosapete), passed in Criminal Revision Petition No. 5037/2015
& etc.
This Criminal Revision Petition coming on for orders this
day, the Court made the following:
ORDER
The respondent-Range Forest Officer, Gudekote Range has registered a case in F.O.C. No. 1/2015-16 on 22.05.2015, seized three lorries bearing Reg. Nos. KA-52/9666, KA- 52/9843, KA-52/9481 and one JCB bearing reg. No. KA- 16/M-9216 on the allegation that in the forest area the said vehicles were used for transporting the sand which is a forest produce. The petitioners who are the owners of the said vehicles have approached the learned Magistrate, i.e., Civil Judge (Jr. Dn.) & JMFC, Kudligi for release of the said vehicles to the interim custody of the petitioners during the pendency of the above said proceedings in F.O.C. No. 1/2015-
16. The learned Magistrate after hearing the matter passed an order on 25.05.2015 releasing the said vehicles to the interim custody of the petitioners on imposing certain conditions.
3
The State through Range Forest Officer being aggrieved by the said order preferred a common revision petition before the III Addl. District & Sessions Judge at Ballari (sitting at Hosapete) in Crl. R.P. No. 5037/2015. The learned Sessions Judge has reversed the findings of the learned JMFC and directed the petitioners to surrender their respective vehicles to the petitioner before the revisional Court, i.e., Range Forest Officer, Gudekote Range, Ballari District and also given liberty to the said Officer to fix the amount of bond for release of the said vehicles. The said order of the learned Sessions Judge is called in question before this Court.
2. The learned Sessions Judge relying upon a decision of the Apex Court in the case of State of Karnataka Vs. K.Krishnan reported in (2000) Cri. L.J. 3971 wherein it is observed that powers of the Investigating Officer to release the vehicles to the interim custody of the R.C. Holders by fixing the bond amount. Here in this case the Range Forest Officer who has investigated the matter in F.O.C. No. 1/2015-16 appears to have submitted report to the jurisdictional 4 magistrate with regard to the seizure of the said vehicles and as well as sand. Now the question arises before this Court, who is the competent authority to pass an appropriate order for release of the interim custody of the said vehicles. Of course under The Karnataka Forest Act, 1963 (for short 'Act') the Range Forest Officer is empowered to release the vehicle as per Section 62(3)(a) of the Act but when the seizure is reported to the Magistrate, an application is filed u/S 457 Cr.P.C. then the Magistrate would also get jurisdiction to try the offence and for disposal of the properties which are reported to the jurisdictional Magistrate under the Act, which falls under Section 62(3)(b) of the Act.
3. The learned Magistrate has observed in his order that in F.O.C. No. 1/2015-16 of Gudekote Forest Range, seizure has been effected and the report has been submitted to the Court. Therefore, the Investigating Officer has not exercised his powers to release the said vehicle in favour of the owners, but in turn he reported seizure to the Court. In such an 5 eventuality whether the Magistrate gets jurisdiction to release the said vehicle, is to be looked into.
4. Under the Karnataka Forest Act, Sec. 71-A authorizes, an Authorized Officer to exercise the powers for confiscation of the forest produce which are specifically referred to in the said provision and so far as the other properties are concerned, the Magistrate would get the jurisdiction. It is just and necessary to peruse these two provisions meticulously. Section 62 of the Karnataka Forest Act, 1963, reads as under:
62. Seizure of property liable to confiscation (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicles or (cattle or any other property used) in committing any such offence, may be seized by any Forest Officer or Police Officer.
(2) Any Forest Officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe a forest offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary to examine the contents in the vehicle and inspect all records relating 6 to the goods carried which are in the possession of such driver or other person in charge of the vehicle.
(3) Every officer seizing any property under this section shall, as soon as may be, (make a report of such seizure-
(a) where the offence on account of which the seizure has been made is in respect of timber, ivory, (Gulmavu (mahilus macrantha) bark, Dalchini bark, Halmaddi (exudation of Ailanthus malabaricum), canes] firewood or charcoal which is the property of the State Government or in respect of sandalwood, to the concerned authorised officer under Section 71-A; and
(b) in other cases, to the magistrate having jurisdiction to try the offence on account of which the seizure has been made.
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.
(emphasis supplied)
---
5. On careful perusal of the above said provision, it clears the doubt that, every officer seizing the property under Section 62 of the Act, shall make a report of such seizure, where the offence is with reference to a forest produce, particularly referred to in Section 62(3)(a) of the Act, then the 7 report should be submitted to the concerned Forest Officer under Section 71A of the Act. That means, the statute itself prescribes some of the forest produce which are specifically mentioned in Section 62(3)(a) of the Act. In those matters for which Sec. 71A of the Forest Act is applicable, the Forest Officer would get jurisdiction to dispose of those properties in accordance with law.
6. Section 62(3)(b) of the Act refers to other cases though they are styled as "forest produce", the powers are vested with the Magistrate having jurisdiction to try the offences. In this background what is 'forest produce' is also explained in Section 2(7) of the Act. The said provision reads thus:
2(7). "Forest Produce" includes-
(a) the following whether found in or brought from a forest or not, that is to say-
timber, charcoal, caoutchouc, catechu, [sandal wood], lootikai [Capparis Mooni], wood oil, sandalwood oil, resin, [rubber latex, {xxxx}] natural varnish, bark, lac, mahua or ippe kuth, and temburni or tupra (Diospyros Melanoxylon) leaves, rosha (Cymbopogon Martini) grass and oil and myrabolams (Terminalia Chebula, 8 Terminalia Belerica and {[Phyllanthus Emblica, Ramapatra and Shigakai]}; and
(b) the following when found in, or brought from, a forest, that is to say-
(i) trees and leaves, flowers and fruits, and all
other parts or produce not hereinbefore
mentioned, of trees;
(ii) being plants no trees, (including grass,
creepers, reeds and moss), and all parts or produce of such plants;
(iii) wile animals and pea fowls and skins, tusks, horns, bones, silk cocoons, honey, and wax and all other parts or produce of wild animals, pea fowls and insects; and
(iv) peat, surface soil, rock and minerals (including limestone), laterite, mineral oils, and all products of mines or quarries; and (iv-a) cocoa beans or pods, garcinia fruits, thornless bamboos, Halmaddi, Raldhupa and Kaidhupa;
(v) such other products of forests as the State Government may, by notification, declare to be forest produce;
(emphasis supplied)
---
7. On perusal of this particular provision, Section 2(7)(a) contains specific items, which are virtually reiterated to be read into Section 62(3)(a) of the Act. So far as Sec. 2(7)(b) the forest produce which are mentioned therein shall be read into 9 Sec. 62(3)(b) of the Act, that clears out the doubt that whenever any forest produce as mentioned in Sec. 2(7)(a) or under Sec. 62(3)(a) are seized then the report has to be submitted with regard to the seizure to the Authorized Officer. So far as forest produce which are mentioned at Sec. 2(7)(b) of the Act are concerned, the same has to be reported to the jurisdictional Magistrate as per Sec. 62(3)(b) of the Act.
8. The above said provisions if they are read in consonance with Sec. 71A, it also makes it further clear that Sec. 71A speaks about confiscation of the articles and dispersal of the articles shall be done by the Forest Officer nominated by the State Government. The properties which are not mentioned in Sec. 71A of that Act, i.e., so far as other properties are concerned, i.e., the properties which fall u/S 2(7)(b), the power of dispersal of such properties is vested with the jurisdictional Magistrate u/S 451 and 457 of Cr.P.C.
9. Looking to the above said legal aspects and the factual aspects, when the seizure of the properties falls u/S 2(7)(b) of the Act and the report has been submitted by the Range 10 Forest Officer as per Sec. 62(3)(b) of the Act to the Magistrate, then the Magistrate would get jurisdiction to dispose of those properties and as well as the tools or the vehicles used for commission of the forest offence with reference to those properties.
10. In view of the above said statutory provisions when particularly in this case the offence is with reference to excavation of the sand in the forest area which falls under the 'forest produce' u/S 2(7)(b) of the Act, the Magistrate would get jurisdiction u/S 457 of Cr.P.C. for passing an order with respect to interim custody of the properties seized therein. Hence, the learned Magistrate has rightly exercised jurisdiction u/S 457, is in accordance with the provisions of the Forest Act also. The learned Sessions Judge without referring to any of the above said provisions has wrongly directed the petitioners to surrender the said vehicles before the Range Forest Officer in order to fix the amount of bond for release of the said vehicles. Under the above said facts and circumstances, the order of the learned Sessions Judge is not 11 tenable either on facts or on law, in view of the above said discussion.
11. Having come to such conclusion, this Court has also observed that the order of the learned Magistrate which was set aside by the learned Sessions Judge also suffers from some serious irregularity which can be corrected by this Court while exercising powers u/S 397 or 401 of Cr.P.C. When an irregularity or illegality is brought to the notice of the Court while exercising power u/S 397 or 401 of Cr.P.C. the Court can also exercise its suomoto powers to correct such mistakes committed by the Subordinate Courts.
12. In view of the above as could be seen from the order of the trial Court, the trial Court has not bestowed its attention so far as Sec. 63 of the Act wherein it mandates, at the time of releasing of the vehicle, there should be insistence of bank guarantee equal to the value as estimated by such Officer or Court which releases the vehicle to the interim custody to the owner of the vehicles. But the learned Magistrate has only insisted for execution of indemnity bonds for some amount as 12 mentioned in the orders. Therefore, though this Court is setting aside the orders of the learned Sessions Court but is also remanding the matter to the trial Court to look into Section 63 of the Act and impose appropriate suitable condition while releasing the vehicle in favour of the owners. So far as the other conditions and the decision of the learned Magistrate in releasing the vehicles, are not disturbed. With these observations the petition is disposed of.
Office is hereby directed to send a copy of this order to the jurisdictional Magistrate for passing appropriate orders.
Sd/-
JUDGE Bvv