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2017 DIGILAW 360 (HP)

State of Himachal Pradesh v. Prakash Chand

2017-04-17

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Instant criminal revision petition filed under Sections 397 and 401 read with Section 482 CrPC is directed against judgment dated 1.4.2015 passed by learned Additional Sessions Judge, Kullu, HP in Criminal Revision No. 33 of 2014, whereby order dated 6.8.2014 passed by the Authorized Officer-cum- Divisional Forest Officer, Kullu in Case No. 7/2014 titled Prakash Chand versus State of Himachal Pradesh, has been set aside and vehicle in question i.e. Jeep No. HP-66-3614 alongwith documents and keys has been ordered to be released in favour of the respondent-owner. 2. Briefly stated facts as emerge from record are that respondent-owner vide application dated 1.8.2014, made a prayer before Authorized Officer-cum-Divisional Forest Officer, Kullu for release of vehicle/Jeep No. HP-66-3614 on Sapurdari bond, which was impounded by the police in FIR No. 157/2014 dated 18.5.2014 under Sections 41 and 42 of the Indian Forest Act, 1927 and under Section 379 IPC. However, the fact remains that the Authorized Officer-cum-Divisional Forest Officer, Kullu rejected aforesaid application having been preferred by the respondent namely Prakash Chand. Learned Authorized Officer, while dismissing application for release having been made on behalf of the respondent-owner concluded that in the instant case, vehicle in question was seized by the police on 185.2014 in FIR No. 157/2014 and no report of seizure has been made to him under Section 52(3) of the Indian Forest Act nor seized property has been produced before him under the Act, as such, he is not empowered to exercise jurisdiction as conferred upon him under Section 52A of the Indian Forest Act. 3. Respondent, being aggrieved and dissatisfied with the order dated 6.8.2014, passed by the learned Authorized Officer-cum-Divisional Forest Officer, Kullu preferred a criminal revision before Additional Sessions Judge, Kullu, which came to be registered as Cr. Revision No. 33/2014. Subsequently, aforesaid criminal revision having been filed by the respondent was treated as criminal appeal, as emerges from the judgment passed by the learned Additional Sessions Judge. Revision No. 33/2014. Subsequently, aforesaid criminal revision having been filed by the respondent was treated as criminal appeal, as emerges from the judgment passed by the learned Additional Sessions Judge. Learned Additional Sessions Judge, Kullu, while accepting the aforesaid appeal having been filed by the respondent quashed order dated 6.8.2014 passed by Authorized Officer-cum-Divisional Forest Officer, Kullu in case No. 7/2014 and ordered release of vehicle in question alongwith documents and keys, in favour of the respondent namely Prakash Chand, being registered owner of the vehicle in question, on furnishing Sapurdari bond to the tune of Rs.5.00 Lakh, with one guarantee in the like amount, to the satisfaction of the learned Chief Judicial Magistrate, Kullu. 4. Being aggrieved and dissatisfied with the impugned judgment having been passed by the learned Additional Sessions Judge, Kullu, petitioner-State preferred instant petition under Sections 397/401 read with Section 482 CrPC, praying therein for quashing and setting aside impugned judgment dated 1.4.2015 passed by the learned Additional Sessions Judge. 5. Mr. P.M. Negi, Additional Advocate General, duly assisted by Mr. Ramesh Thakur, Deputy Advocate General, vehemently argued that impugned judgment dated 1.4.2015 passed by the learned Additional Sessions Judge, Kullu is not sustainable in the eye of law and as such deserves to be set aside. Mr. Negi, while referring to the impugned judgment passed by Additional Sessions Judge, Kullu, strenuously argued that the appellate Court has exceeded its jurisdiction because it had no occasion whatsoever, to give interim custody of vehicle in question in favour of respondent/owner because learned Additional Sessions Judge had no power/jurisdiction to pass any order of release of vehicle under the Indian Forest Act, rather, power, if any, was with the Authorized Officer-cum-Divisional Forest Officer, Kullu, who could release vehicle in terms of Section 52A of the Indian Forest Act. Mr. Negi, while referring to the order dated 6.8.2014, passed by Authorized Officer-cum-Divisional Forest Officer, Kullu, contended that there is no illegality or infirmity in the order passed by the learned Authorized Officer because since vehicle involved in the incident was never produced before the said Authorized Officer as required under Section 52A of the Indian Forest Act and as such there was no occasion for him to release vehicle as prayed for by the respondent/owner. Mr. Mr. Negi further contended that otherwise also, proper remedy for the respondent was to move an application for release of vehicle before Judicial Magistrate, before whom police had filed challan in FIR No. 157/2014 dated 18.5.2014 and by no stretch of imagination, Additional Sessions Judge had power to order release of vehicle in favour of the respondent/owner of the vehicle. 6. Mr. Divya Raj Singh, learned counsel representing the respondent, supported the judgment passed by Additional Sessions Judge. Learned counsel representing the respondent vehemently argued that there is no illegality or infirmity in the judgment passed by the learned Additional Sessions Judge and as such revision petition filed by the State deserves to be dismissed. 2. Mr. Divya Raj Singh, also reminded this Court of its limited jurisdiction under Section 397 as far as re-appreciation of evidence is concerned. Learned counsel has placed reliance upon the judgment passed by Hon’ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:- “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 7. I have heard learned counsel representing the parties and have carefully gone through the record made available. 8. Perusal of order dated 6.8.2014 suggests that vehicle bearing registration No. HP-66-3614 was impounded by the Police in FIR No. 157/2014 dated 18.5.2014, under Sections 41 and 42 of the Indian Forest Act and Section 379 IPC. I have heard learned counsel representing the parties and have carefully gone through the record made available. 8. Perusal of order dated 6.8.2014 suggests that vehicle bearing registration No. HP-66-3614 was impounded by the Police in FIR No. 157/2014 dated 18.5.2014, under Sections 41 and 42 of the Indian Forest Act and Section 379 IPC. Respondent-owner moved an application bearing No. 7/2014 under Section 52A of the Indian Forest Act, before the Authorized Officer-cum-Divisional Forest Officer, Kullu, Forest Division Kullu, for interim release of the vehicle in question on Sapurdari bond. However, aforesaid application was rejected by the Authorized Officer-cum-Divisional Forest Officer on the ground that since neither the report of seizure was made to him under Section 52 (3) of the Indian Forest Act nor seized property was produced before him under the Act ibid, as such, he was not empowered to exercise jurisdiction as conferred upon him under Section 52A of the Act ibid. 9. This Court, after perusing order passed by the Authorized Officer-cum-Divisional Forest Officer, sees no illegality or infirmity in the order passed by the Authorized Officer-cum- Divisional Forest Officer on the application having been filed by the respondent-owner for interim release because, admittedly, at the time of moving of application, no report of seizure was made to him as envisaged under Section 52(3) of the Act ibid, by the police, which registered FIR No. 157/2014 dated 18.5.2014 under Sections 41 and 42 of the Act ibid. 10. In the instant case, as emerges from record, police registered aforesaid case against respondent-owner of the vehicle under Sections 41 and 42 of the Indian Forest Act and after completion of investigation, presented challan in the competent court of law and as such application, if any, for interim release of the vehicle on Sapurdari could be made by the respondent before judicial magistrate, before whom Challan was presented by the police after registration of FIR. Had the Department registered case, if any, against respondent under Section 52A, owner was expected to move an application for release of vehicle before that authority under Section 52A of the Act but since no vehicle was ever produced before Authorized Officer under Section 52(3) of the Act, no order for interim release could be passed by Authorized Officer-cum- Divisional Forest Officer, exercising powers under Section 52A of the Act ibid. Hence, in view of above, this Court sees no illegality or infirmity in the order passed by the Authorized Officer-cum- Divisional Forest Officer on the application having been filed by the respondent-owner. However, after carefully examining order having been passed by the Authorized Officer-cum-Divisional Forest Officer, as well as pleadings available on record, this Court is of the view that at the time of dismissing application having been filed by the respondent-owner of vehicle, Authorized Officer-cum-Divisional Forest Officer could direct applicant to move application for interim release of vehicle before judicial magistrate, before whom, Challan was presented by the police, after registration of the case. But, interestingly, in the instant case, respondent-owner being aggrieved and dissatisfied with rejection of his application, preferred a criminal appeal/revision before the Additional Sessions Judge, who, ultimately accepted the appeal/revision and ordered release of vehicle in favour of the owner. This Court sees substantial force in the arguments having been made by Mr. P.M. Negi, Additional Advocate General, that there is no jurisdiction vested in Sessions Judge/ Additional Sessions Judge to order interim release of vehicle involved in a case, because order, if any, could be passed only by court, which had taken cognizance of the chargesheet filed by the police pursuant to FIR registered. But, in the instant case, since application filed under Section 52A of the Act ibid was rejected by Authorized Officer-cum-Divisional Forest Officer, remedy, if any, against dismissal of same was to file criminal appeal before Sessions Judge, and as such, respondent/owner rightly approached the Sessions Judge/Additional Sessions Judge, against rejection of his application. But, as has been observed above, application, if any for release of vehicle could have been made by the respondent/owner before in the Court, before whom, police had presented Challan in the case. 11. In normal circumstances, taking note of the averments contained in the application as well as order having been passed by Authorized Officer-cum-Divisional Forest Officer, under the Indian Forest Act, learned Sessions Judge, ought to have sent this case to judicial magistrate before whom, Challan was presented but in the instant case, learned Sessions Judge, proceeded to decide the application for interim release of vehicle in question. 12. Though, this Court is in agreement with the submissions having been made by Mr. 12. Though, this Court is in agreement with the submissions having been made by Mr. P.M. Negi, Additional Advocate General, that learned Additional Sessions Judge, had no power to order release of vehicle but in the peculiar facts and circumstances of the case, wherein learned Additional Sessions Judge while adjudicating legality of order dated 6.8.2014 passed by Authorized Officer-cum- Divisional Forest Officer, Kullu ordered release of vehicle on Sapurdari, sees no reason to interfere at this stage. 13. However, it is made clear that observations, if any, made in the judgment passed by the learned Additional Sessions Judge while allowing application for release of vehicle in question, shall have no bearing on the merits of the case, which is admittedly pending before Judicial Magistrate. It is further clarified that impugned judgment/order passed by the learned Additional Sessions Judge, shall not be considered to be a precedent, as the same has been passed in peculiar facts and circumstances of the case. 14. In view of the above, the present petition is disposed of along with pending applications, if any.