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Madhya Pradesh High Court · body

2019 DIGILAW 258 (MP)

Moolchand Bilthare v. State of M. P.

2019-03-27

RAJENDRA KUMAR SHRIVASTAVA

body2019
ORDER 1. Petitioner has filed this miscellaneous criminal case under section 482 of CrPC to quash the proceedings of POR Case No. 4802/21 dated 9.3.2018 registered by respondent No. 4 against Gopal and Kuwarman under section (1) (c) read with section 52 of the Indian Forest Act, 1927. 2. Prosecution case in short is that I. D. Rai was posted as a Forester. On 9.3.2018, he and other officers had received information that some persons are cultivating land at Piparsara Veet Kachh No. P-4, then they reached on the spot and saw that petitioner and other persons were cultivating the said land by tractor No. MP-49 A-7754, which comes under the purview of forest land. I. D. Rai asked him to show the document but petitioner and other persons informed that they have no document for the same. Petitioner and driver admitted that they were cultivating the forest land, thereafter proceedings were initiated against the petitioner and other person under section 33 (1) (C) read with section 52 of the Indian Forest Act 1927 and also under M. P. Protection of Forest Rules, 2005. POR was issued and Tactor No. MP-49 A-7754 was seized from the possession of petitioner and others. Thereafter, spot panchnama and spot map were prepared. A damage was also prepared, thereafter Forest Officer and Sub-Divisional Officer of Forest, Gotegaon issued a notice under section 52 of the Indian Forest Act to the petitioner to confiscate the vehicle. Petitioner appeared before Sub-Divisional Forest Officer, Gotegaon and submitted his reply, thereafter, Forest Officer examined the witnesses and passed the order dated 31.7.2018 and ordered to confiscate tractor No. MP-49 A-7754 in favour of the State. 3. Learned counsel for the petitioner submits that he is law abiding citizen of India. Petitioner has purchased tractor of New Holland Company on 19.7.2012 with the finanacial support of L&T Financial Company under the hire purchase scheme, which is duly registered in the office of RTO Narsinghpur bearing registration No. MP49-A-7754 and the petitioner is liable to pay monthly installments towards such loan to the L&T Financial Company, which is continued upto 2019. The said vehicle is used by the petitioner for cultivation of agricultural land on rent and the liabilities of loan is being discharged by the petitioner through such rent as also maintaining his family. The said vehicle is used by the petitioner for cultivation of agricultural land on rent and the liabilities of loan is being discharged by the petitioner through such rent as also maintaining his family. On 9.3.2018, the said vehicle was cultivating land of the respondent No. 5 under Khasra No. 103/1. Petitioner was surprised, when he came to know that the respondent No. 4 has seized such vehicle of the petitioner by alleging that the vehicle of the petitioner is cultivating land under the so called forest veat No. P-4. The aforesaid action of the respondent No. 4 was highly objected by the respondent No. 5, but the respondent No. 4 has taken custody of the vehicle of the petitioner and case was registered under section 33 (1) (c) read with section 52 of the Indian Forest Act, 1927 and also under M. P. Protection Forest Rules, 2005. It is clear that the entire area including the alleged part was used for cultivation and there is residential part of the local villagers. Petitioner received a letter from the respondent No. 3, thereafter he submitted reply on 9.4.2018 stating that no offence has been committed by the petitioner under the Forest Act and the entire case registered against the petitioner is based on imaginary ground. The petitioner has also put forth that tractor alone source of income of the petitioner. He also submits that the case in accordance to section 68 of the Indian Forest Act, 1927 the sole object is to get possession of the vehicle on quick disposal of the case even though he has not committed any offence. Since there is apparent dispute about the description of the land in question, therefore the petitioner has approached the revenue authorities. Respondent No. 6 has registered Revenue Case 60-A-12/2017-18 and thereafter, inquired the entire factual matrix and status of the land in question and submitted final conclusion that the land under khasra No. 103/1, area 0.792 hectare belongs to the respondent No. 5 but during the process of such demarcation, the concerned Forest Guard Mr. Respondent No. 6 has registered Revenue Case 60-A-12/2017-18 and thereafter, inquired the entire factual matrix and status of the land in question and submitted final conclusion that the land under khasra No. 103/1, area 0.792 hectare belongs to the respondent No. 5 but during the process of such demarcation, the concerned Forest Guard Mr. Dehariya has raised an objection on 17.5.2018 which is apparently not sustainable under sections 52, 55 and 68 of the Indian Forest Act 1927, in which section 52 deals with the procedure to be followed in confiscation proceedings but there is specific provision under section 55 that the confiscation can only be done upon conviction of the offender. The provisions of section 67 empower the cccompetent judicial Court to complete trial proceeding and such trial is to be conducted under summary trial. 4. The instant case comes within the ambit of vexatious seizure which is defined under section 62 of the Indian Forest Act, 1927, and for such vexatious seizure of the vehicle, the respondents No. 3 and 4 and their subordinates are liable to be punished. The petitioner has operated the tractor in question in accordance with law and it is apparent on the face of record that the respondent No. 5 is absolute owner of the land in question, as is reported by the respondent No. 6 and therefore, no forest offence case is made out against the petitioner. There is apparent violation of section 52 and 55 of the Indian Forest Act, 1927 and the vehicle in question cannot be confiscated in the light of the judgment passed by the Full Bench of this Hon’ble Court in the case of Madhukar Rao v. State of M. P. which is affirmed by Hon’ble apex Court. The petitioner is absolute owner of the vehicle, therefore, liable to pay monthly installments but the same is being deteriorated day by day due to rust and rains because the vehicle is lying on the open space under the custody of respondent No. 4. Respondent No. 4 has failed to apply the provisions of section 67 of the Indian Forest Act, 1927, therefore confiscation cannot be done till conclusion may be arrived at by the learned trial Court. 5. Learned counsel for the respondent/State submits that vehicle was seized under Indian Forest Act in forest offence. Respondent No. 4 has failed to apply the provisions of section 67 of the Indian Forest Act, 1927, therefore confiscation cannot be done till conclusion may be arrived at by the learned trial Court. 5. Learned counsel for the respondent/State submits that vehicle was seized under Indian Forest Act in forest offence. The vehicle was confiscated by competent Court, there is complete procedure prescribed under Indian Forest Act to release or confiscate the vehicle. So this petition is not maintainable. 6 Heard both the parties and perused the case. 7. In this regard, corresponding provisions in the Forest Act for seizure and confiscation of the vehicle of the forest can be reproduced here as under: “52. Seizure of property liable to confiscation and procedure therefor (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, ropes, chains or any other article used in committing any such offence may be seized by any Forest Officer or Police Officer. (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, either produce the property seized before an officer not below the rank of an Extra Assistant Conservator of Forest authorized by the State Government in this behalf by notification (hereinafter referred to as the authorized officer) or where it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce the property seized before the authorized officer, make a report about the seizure to the authorized officer or where it is intended to launch criminal proceedings against the offender immediately, make a report of such seizure 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 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. (3) Subject to sub-section (5), where the authorized officer, upon production before him of property seized of upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded confiscate forest produce so seized together with all tools, vehicles, boats, ropes, chains or any other article used in committing such offence. A copy of order on confiscation shall be forwarded without any undue delay to the Conservator of Forests of the forest circle in which the timber produce, as the case may be, has been seized. (4) No order confiscating any property shall be made under sub-section (3) unless the authorized officer- (a) sends an intimation in form prescribed about initiation of proceedings for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made; (b) issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorized officer to have some interest in such property; (c) affords an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and (d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purpose. No order of confiscation under sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than the timber or forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorized officer that any such tools, vehicles, boats, ropes, chains or other articles were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of the objects aforesaid for commission.” Section 52A (Madhya Pradesh Amendment) reads as under:- “52A. Appeal against the order of confiscation.-- (1) Any person aggrieved by an order of confiscation may, within thirty days of the order, or if the fact of such order has not been communicated to him, within thirty days of date of knowledge of such order, prefer an appeal in writing, accompanied by such fee and payable in such form as may be prescribed, along with certified copy of order of confiscation to the conservator of forests (hereinafter referred to as appellate authority) of the forest circle in which the forest produce has been seized. Explanation-(1) The time requisite for obtaining certified copy of order of confiscation shall be excluded while computing period of thirty days referred to in this sub- section. (2) The appellate authority referred to in sub-section (1), may, where no appeal has been preferred before him, suo motu within thirty days of date of receipt of copy of order of confiscation by him, and shall on presentation of memorandum of appeal issue a notice for hearing of appeal or, as the case may be, of suo motu action to the officer effecting seizure and to any other person (including appellant, if any) who in the opinion of the appellate authority, is likely to be adversely affected by the order of confiscation, and may send for the record of the case: Provided that no formal notice of appeal need be issued to such amongst the appellant, officer effecting seizure and any other person likely to be adversely affected as aforesaid, as may waive the notice or as may be informed in any other manner of date of hearing of appeal by the appellate authority. (3) The appellate authority shall send intimation in writing of lodging of appeal or about suo motu action, to the authorized officer. (4) The appellate authority may pass such order of “interim” nature for custody, preservation or disposal (if necessary) of the subject matter of confiscation , as may appear to be just or proper in the circumstances of the case. (5) The appellate authority having regard to the nature of the case or the complexities involved, may permit parties to the appeal to be represented by their respective legal practitioners. (5) The appellate authority having regard to the nature of the case or the complexities involved, may permit parties to the appeal to be represented by their respective legal practitioners. (6) On the date fixed for hearing of the appeal or suo motu action, or on such date to which the hearing may be adjourned, the appellate authority shall peruse the record and hear the parties to the appeal if present in person, or through any agent duly authorized in writing or through a legal practitioner, and shall thereafter proceed to pass an order of confirmation, reversal or modific-ation of order of confiscation: Provided that before passing any final order, the appellate authority may, if it is considered necessary for proper decision of appeal or for proper disposal of suo motu action make further inquiry itself or cause it to be made by the authorized officer, and may also allow parties to file affidavits for asserting or refuting any fact that may raise for consideration and may allow proof of facts by affidavits. (7) The appellate authority may also pass such orders of consequential nature, as it may deem necessary. (8) Copy of final order or an order of consequential nature, shall be sent to the authorized officer for compliance or for passing any appropriate order in conformity with the order of appellate authority. section 52B (Madhya Pradesh Amendment) reads as under:- “52B. Revision before Court of Sessions against order of appellate quthority-- (1) Any party to the appeal, aggrieved by final order or by order of consequential nature passed by the appellate authority, may within thirty days of the order sought to be impugned, submit a petition for revision to the Court of Sessions division whereof the headquarters of the appellate authority are situate. Explanation. - In computing the period of thirty days under this sub-section the time requisite for obtaining certified copy of order of appellate authority shall be excluded. (2) The Court of Sessions may confirm, reverse or modify any final order or an order of consequential nature passed by the appellate authority. (3) Copies of the order passed in revision shall be sent to the appellate authority and to the authorised officer for compliance or for passing such further order or for taking such further action as may be directed by such Court. (3) Copies of the order passed in revision shall be sent to the appellate authority and to the authorised officer for compliance or for passing such further order or for taking such further action as may be directed by such Court. (4) For entertaining, hearing and deciding a revision under this section, the Court of Sessions shall as far as may be, exercise the same powers and follow the same procedure as it exercises and follows while entertaining, hearing and deciding a revision under the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). (5) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), the order of the Court of Sessions passed under this section shall be final and shall not be called in question before any Court. Section 52C of Madhya Pradesh Amendment Bar to jurisdiction of Courts etc. under certain circumst-ances -- (1) On receipt of intimation under sub-section 4 of section 52 about initiation of the proceeding for confiscation of the property by the Magistrate having jurisdiction to try the offence on account of which the seizure of the property which is subject matter of confiscation, has been made, no Court, tribunal or authority (other than the authorized officers, appellate authority and the Court of Sessions referred to in sections 52, 52A, and 52B), shall have jurisdiction to make order with regard to possession, delivery, disposal of distribution of the property in regard to which proceedings for confiscation are initiated under section 52, notwithstanding any thing to the contrary contained in this Act or any other law for the time being in force. Explanation: Where under any law for the time being in force, two or more Courts have jurisdiction to try forest offence, then receipt of intimation under sub-section (4) of section 52 by one of the Courts of Magistrate having such jurisdiction shall be construed to be in receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts.” In section 54 of the Indian Forest Act, 1927 in Madhya Pradesh is held as under: “54. Procedure thereupon-Upon the receipt of any such report the Magistrate shall, with all convenient dispatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law: Provided that before passing any order for disposal of property, the Magistrate shall satisfy himself that no intimation under sub-section(4) of section 52 has been received by his Court or by any other Court having jurisdiction to try the offence on account of which the seizure of property has been made.” 8. The provisions of Indian Forest Act and the amendment incorporated therein were considered by the coordinate Bench of this Court in the case of Ramniwas v. Game Range Chambal Sanctuary, Bhind, Headquarter Ambah, District Morena reported in 2012 (2) MPLJ 661 . 9. The Court compared analogous provisions in Bengal Amendment Act, 1927 and observed by reiterating the judgment of Hon'ble the Supreme Court in the case of State of West Bengal and others v. Sujeet Kumar Rana reported in (2004) 4 SCC 159 in para 17, reads as under: “17. The principles which can be culled out from the provisions of the 1927 Act and the judgment in Sujeet Kumar Rana's case (supra) are as under: (i) Forest Act is a Special Act; (ii) M. P. Amendments provide a complete Code in itself by giving sufficient safeguards, both substantive and procedural against any arbitrary exercise of power. It also prescribes hierarchy of adjudicatory bodies; (iii) Section 52C creates a bar on the jurisdiction of Courts as described in it. Because of non-obstante clause used in section 52C, it will have an overriding effect on other laws including general provisions of CrPC; (iv) Once intimation of initiation of confiscation proceedings is given to Magistrate, the jurisdiction of Magistrate is ousted; Magistrate and revisions Courts can't grant interim custody of vehicle de hors the bar of section 52C. (v) Once confiscation proceeding is initiated, the jurisdiction of criminal Courts in terms of section 52C of the 1927 Act is barred, the High Court also cannot exercise its jurisdiction under section 482 CrPC for interim release of such vehicle/property.” 10. It is evident from the record that vehicle was seized under Indian Forest Act, then confiscation proceeding is initiated, therefore show cause notice is given to the petitioner. It is evident from the record that vehicle was seized under Indian Forest Act, then confiscation proceeding is initiated, therefore show cause notice is given to the petitioner. Petitioner appeared before the competent authority, then competent authority took the evidence of both parties, thereafter case was heard and final order was passed to confiscate the vehicle. 11. Petitioner has a remedy to file an appeal against the proceedings of POR Case No. 4802/21 dated 9.3.2018. After that he can file revision also. He can raise his defence or objection before Compe- tent Authority or Court but he is not entitled to get any relief under section 482 of CrPC. So this is not a proper case in which inherent jurisdiction can be invoked under section 482 of CrPC because petitioner has remedy under Indian Forest Act. 12. Learned counsel for the petitioner submits that respondent No. 5 is absolute owner of the disputed land and the said land is not the part of the forest land i.e. Veet Kachh No. P-4. This fact is verified by Revenue Officer-respondent No. 6. This fact will be decided after appreciation of the evidence at appropriate stage of the trial. In this proceeding under section 482 of CrPC, it cannot be held that respondent No. 5 is the owner of disputed land, so it is not a proper case in which to exercise the inherent power of this Court under section 482 of the CrPC. 13. In support of his contention, learned counsel for the petitioner produced several copy of orders which are quoted as under: 1. Prakash Rai v. State of M. P. and others W. P. No. 2204/2002 dated 10.3.2006. 2. Kayamuddin v. State of M. P. and another (M.Cr.C. No. 12083/2009 dated 29.7.2011). 3. Ram Singh Parasar v. State of M. P. and others (W. P. No. 1202/2010 dated 3.12.2012). 4. State of M. P. and others v. Babu Singh Lodhi and others (Cr. R. No. 1818/2014, order dated 6.12.2016). 5. Smt. Krishna Bai Kukrele v. The State of M. P. and others, (Cr. R. No. 308/2011 order dated 24.9.2012). 6. Sunil Kumar Jain v. The State of M. P. and another (M. Cr. C. No. 3476/2014, order dated 20.10.2015). 7. Prakash Patel v. The State of M. P. and others (M. Cr. C. No. 6256/2017, order dated 26.7.2017). This Court has not found any help from these orders. R. No. 308/2011 order dated 24.9.2012). 6. Sunil Kumar Jain v. The State of M. P. and another (M. Cr. C. No. 3476/2014, order dated 20.10.2015). 7. Prakash Patel v. The State of M. P. and others (M. Cr. C. No. 6256/2017, order dated 26.7.2017). This Court has not found any help from these orders. In these cases, neither the provisions of Forest Act were dealt with, nor the judgment of Supreme Court in the case of Sujeet Kumar Rana (supra) was taken into account. 14. Therefore, I do not find any merit in this petition and is hereby dismissed with the liberty to the petitioner to file an appeal and raise all the issues before the appellate authority.