Orissa High Court
Jagabandhu Mahanta vs Bijay Kumar Kar And Anr. on 7 March, 2003
Equivalent citations: 2003CRILJ2679
Author: L. Mohapatra
Bench: L. Mohapatra
ORDER L. Mohapatra, J.
1. This application under Section 482, Cr. P.C. has been filed by the petitioner who is working as Forester in Koonjhar Forest Division, challenging the Judgment and order dated 17-1-2003 passed by the learned Sessions Judge, Koonjhar in Criminal Revision No. 56 of 2002 giving liberty to the opposite party to move the learned Magistrate for release of a vehicle with a further direction to the learned Magistrate to deal with such application in accordance with the observation made in the judgment.
2. Shri Padhi, learned counsel for the petitioner contended that a Marshal Jeep bearing registration No. ORD-9-D-1977 was seized by Barbil Police while carrying teak sleepers without permit. The said vehicle was handed over to the Forest Department for initiation of a Confiscation proceeding under Section 56 of the Orissa Forest Act, 1972. After taking possession of the vehicle the department initiated a confiscation proceeding vide O.R. Case No. 360 of 2002-2003. Owner of the vehicle-opposite party No. 1 appeared before the Authorised Officer, filed his show cause and also filed an application under Section 57 of the Act for interim release of the vehicle and the said application is pending consideration. In the meantime, the opposite party No. 1 also filed an application under Section 457 of the Cr. P.C. before the learned J.M.F.C. Barbil for release of the vehicle. Said petition having been rejected by the learned J.M.F.C. the opposite party carried a revision before the Sessions Court, It is further submitted by Sri Padhi that the revisional Court referring to the decision of this Court in the case of Sudhanshu Kumar Das v. State of Orissa reported in (2002) 19 OCR 63; State of Orissa v. Basanta Naik reported in (2000) 18 OCR 4, Padmini v. State of Orissa reported in (1992) 3 OCR 332 and Baikuntha Behari Mahapatra v. State of Orissa reported in 2001 Cri LJ 4151 held that the learned Magistrate had jurisdiction to deal with the application under Section 457 of the Cr. P.C. and accordingly directed the learned J.M.F.C. for reconsideration of the application: According to Sri Padhi, the judgment of the revisional Court runs contrary to the decision of this Court in the case of Divisional Forest Officer v. Ranjit Kaur Raina reported in (1995 3 OCR 526. According to Sri Padhi once a vehicle is seized in connection with commission of offence under the Orissa Forest Act and the vehicle involved in commission of such offence is produced before the Authorised Officer, the Magistrate loses its jurisdiction in entertaining an application under Section 457, Cr. P.C. and such submission is made on the basis of the decision of this Court in the case of Divisional Forest Officer v. Manjit Kaur Raina (supra). Learned counsel appearing for the opposite party No. 1 on the other hand, submitted that if seizure of the vehicle involved in commission of a forest offence or otherwise is either reported to a Magistrate or produced before the Magistrate, as per several decisions of this Court the Magistrate assumes jurisdiction and he is capable of entertaining an application under Section 457, Cr. P.C. Reference is made by the learned counsel for the opposite party to the decisions relief upon by the revisional Court indicated earlier.
3. From the impugned orders it appears that the vehicle in question was seized by Barbil Police as it was carrying seven pieces of teak sleepers and on the basis of such seizure Barbil P.S. Case No. 170 of 2002 corresponding to G.R. case No. 319 of 2002 in the file of the learned J.M.F.C. were registered for commission of offence under Sections 379, 411 of the Penal Code read with Section 27 of the Orissa Forest Act. It also appears from the impugned order that after seizure of the vehicle the same was handed over to the Forest Section Officer for initiation of proceeding under Section 56 of the Orissa Forest Act. The learned Sessions Judge observed that after seizure of the vehicle Barbil Police having registered a case for commission of offence under Sections 379, 411, IPC read with Section 27 of the Orissa Forest Act and, having reported seizure of the vehicle to the Magistrate, the Magistrate assumes jurisdiction to deal with an application under Section 457 of the Cr. P.C.
4. This Court in the case of Sarat Kumar Malu v. State of Orissa reported in (1984) (57) Cri LT 381 : (1984 Cri LJ 984) held that powers to pass orders regarding disposal of seized property in case of forest offence lies with the authorities under the Forest Act and not with the Court by invoking provisions of the Cr.P.C. In the said case, the properties in question were seized by a Forest Officer and not by a police officer. However, while analysing Sections 56, 57 of the Orissa Forest Act and Sections 451 and 457 of the Cr.P.C. this Court held that a Magistrate cannot exercise powers under Section 451 Cr.P.C. when the vehicle in question has not been produced before him and also cannot exercise powers under Section 457. Cr.P.C. when seizure of the vehicle is not done by a police officer, this Court in the two other decisions in the case of Sudhanshu Kumar Das v. State of Orissa (supra) and State of Orissa v. Basanta Naik (supra) held that if a vehicle has been seized in connection with commission of forest offence and such seizure has been reported to the Magistrate, the Magistrate can exercise jurisdiction and entertain an application under Section 457, Cr.P.C. It appears that this Court in the aforesaid two decisions referred to above earlier decision of this Court in the ease of Sarat Kumar Malu v. State of Orissa. However, it appears that Division Bench of this Court has set the question in rest. In the case of State of Orissa through Divisional Forest Officer Angul v. Acharya Charan Choudhury reported in (1990) 70 Cut LT 371 observed as follows :
"There is no dispute in the present case that after seizure of the truck in question under Section 56 of the Act; the truck together with the goods was produced before the Divisional Forest Officer, Angul as per Annexure-1 and the factum of such seizure was reported to the Sub-Divisional Judicial Magistrate and the accused was produced before the Magistrate as per Annexure-2 . The Forest Officer also intimated the Magistrate under Annexure-3 that the vehicle has been produced before the Authorised 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 Section 451 of the Code of Criminal Procedure. Further, in Sarat Kumar Malu's case, (1984) 57 JT 381, 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. In the present case also, the vehicle has not been produced before the Magistrate- Therefore, even under Section 451, 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 truck as well as the order of the Sessions Judge confirming the same is without jurisdiction."
5. The above decision has not been taken note of in earlier two judgments referred to above. In the case of Divisional Forest Officer v. Ranjit Kaur (1995 (9) OCR 526) (supra) a single Bench of this Court has also taken same view as that of the Division Bench. Since the decision relied upon by the learned counsel for the opposite parties as well as the decisions referred to above by the revisional Court have not taken note of the Division Bench decision of this Court in the case of State of Orissa through D.F.O. v. Acharya Charan Choudhury (supra), I am of the view that the learned Sessions Judge was not justified in directing the Magistrate to entertain an application on the face of decision of this Court rendered by the Division Bench.
6. I, accordingly, set aside the judgment and order of the learned Sessions Judge impugned before this Court, The Criminal Misc. Case is allowed.