ORDER
Hari Shankar Prasad, J.
1. The petitioner, who claims to be owner of truck No. WB-15-0229, has filed this application under Sections 397 and 401, Cr PC for release of truck seized in connection with Mandu/ Kujju P.S. Case No. 158 of 2002. In course of hearing of the instant application, an order was passed on 25.6.2002, pursuant to which petitioner, through supplementary affidavit, has amended the petition and has challenged the seizure also. The relevant portion of the aforesaid order dated 25.6.2002 is quoted herein below :
'Counsel for the petitioner prays for time to file supplementary affidavit for amending the prayer portion of the criminal revision application in order to challenge the seizure of the truck in question as well. The prayer is allowed.
This criminal revision application is for release of the truck bearing registration No. WB 15-0229 which was seized in connection with Mandu (Kuju) P.S. Case No. 158 of 2002, pending in the Court of the Chief Judicial Magistrate, Hazaribagh.
It appears that confiscation proceeding has already been initiated by the Divisional Forest Officer, East Division, Hazaribagh (opposite part No. 2) vide Confiscation Case No. 23 of 2002 and as such the petitioner is directed to take steps for filing a petition before the Confiscating Authority for release of the truck in question. If such a petition is filed by the petitioner within a week from today, the Confiscating Authority shall dispose of the confiscation case aforementioned within 15 days thereafter.'
2. A counter affidavit on behalf of the opposite party has also been filed.
3. Mr. Kalyan Roy, learned counsel for the petitioner, while referring to the aforesaid order dated 25.6.2002, submitted that pursuant to the order dated 25.6.2002 the petitioner filed a representation before the competent authority who was pleased to reject the representation. The learned counsel for the petitioner has raised three points. His first point of argument is that no notice, as contemplated under Section 52 etc. of the Indian Forest Act, 1927 has been given to the petitioner in confiscation case No. 23/2002 and confiscation case has been disposed of without giving opportunity to the petitioner and, therefore, there is violation of principles of natural justice and in such a case where there is violation of principles of natural justice, the High Court should pass orders in favour of the petitioner and release the vehicle in question. The second point of argument was that the Hon'ble Court vide order dated 25.6.2002 had directed the competent officer to release the vehicle but instead of doing so has passed an order rejecting the prayer of the petitioner and thereby has violated the direction of the Hon'ble Court passed in Criminal Revision No. 230/2002. The third point of argument was that petitioner had no knowledge of the commission of offence and vehicle in question has been seized from the premises of the petitioner's house and, therefore, these points were placed before the competent authority but still then the prayer was rejected.
4. On the other hand, it was stated on behalf of the learned counsel for the State that there is no violation of the principles of natural justice as learned counsel for the petitioner has appeared before the competent authority cum Divisional Forest Officer, Hazaribagh and has placed his case before the authority and he referred two dates on which learned counsel for the petitioner appeared before the competent authority after going through the orders passed in Confiscation Proceeding No. 23/2002. It was further stated that since confiscation proceeding was initiated and information was sent to the learned CJM and thereafter, when the petitioner filed the revision, an order was passed and then petitioner filed a representation before the competent authority, who after hearing the learned counsel for the petitioner on several dates, passed confiscation order. Hence there is no violation of the principle of natural justice. The learned counsel further referred to the order dated 25.6.2002 passed in the revision application and pointed out that there was no such order to release the vehicle but there was an order to dispose of the representation within fifteen days from the date of filing of the representation and the competent authority after giving opportunity of hearing and after full hearing passed an order in confiscation proceeding and as such, there is no violation of the order dated 25.6.2002. It was further pointed out that the petitioner has got remedy of appeal as well as revision and he has not exhausted all the remedies and, therefore, this revision application is not maintainable, Learned counsel further pointed out that the High Court has got no jurisdiction when an order confiscating the articles or tools used in the commission of forest offences is passed and as such, the petitioner has got no remedy here and he should move before the appellate Court, which is the Court of District Magistrate or should go in revision against the confiscation order before the Forest Secretary.
5. The learned counsel for the petitioner, while pleading for release of the truck in question, relied upon two decisions reported in 2002 (1) JCR 83 (SC) and AIR 1998 SC 128, wherein power of High Court has been dealt with that whatever nature of petition may be, the High Court has power to convert that petition under proper section and give relief to the petitioner. In 2002 (1) JCR 83 (SC), (supra) it was found that a cheque was issued in favour of a person and when that person presented the cheque before the Bank, that was dishonoured due to insufficient fund and as a result of dishonour of cheque the drawee filed a case and in the trial the accused, who issued the cheque, was convicted but in appeal his conviction was set aside on the ground that it is not clear whether the cheque was issued for any debt or liability but when the matter came up before the Supreme Court, then Supreme Court was pleased to hold that when a cheque has been issued in favour of a drawee, then it has to be presumed by the Court that the cheque has been issued for a debt or liability. In AIR 1998 SC 128, (supra), the power of High Court has been dealt with, which is quoted hereinbelow :
'The questions which arise for consideration are if in the circumstances of the case, the appellants rightly approached the High Court under Articles 226 and 227 of the Constitution and if so, was the High Court justified in refusing to grant any relief to the appellants because of the view which it took of the law and the facts of the case. We have, thus, to examine the power of the High Court under Articles 226 and 227 of the Constitution and Section 482 of the Code.
22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226, some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.
23. In Waryam Singh v. Amarnath, AIR 1954 SC 215 : 1954 SCR 565, this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate Courts and Tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB), where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.
24. In Babhutmal Raichand Oswal v. Laxmibai R. Tarte, AIR 1975 SC 1297 : (1975) 1 SCC 858, this Court again reaffirmed that the power of superintendence of High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate Court or Tribunal and that its function was limited to seeing that the subordinate Court and Tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence of reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, 'as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings.' The Court referred with approval the dictum of Morris, LJ in Rex v. Northumberland Compensation Appeal Tribunal, (1952) 1 All ER 122.
25. In Nagendra Nath Bora v. Commr. of Hills Division, 1958 SCR 1240 : AIR 1958 SC 398 at p. 413, this Court observed as under :
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal within the limits of its authority.
26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be restored to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.'
6. On the other hand, learned counsel for the State has placed reliance upon 1996 (1) PLJR 77 and 1995 (2) PLJR 153.
7. In 1995(2) PLJR 153, (supra), it has been held that it is true that writ jurisdiction under Articles 226 and 227 cannot be taken away by any enactment except amendment of the Constitution and High Court has got power to interfere in confiscation proceedings in appropriate cases so as to sub-serve and not frustrate the provisions of the Forest Act as laid down under Section 52(c) of the Indian Forest Act, 1927, Bihar Amendment, but normally direction should be issued for expeditious disposal of the confiscation proceeding so that the aggrieved person may invoke the provisions of appeal before the appellate Court and when it finds that the confiscation proceeding is being delayed by the confiscation agency, then it may interfere and release the vehicle with the stipulation that the vehicle and forest produce may be produced if the order of confiscation is subsequently passed. In the aforesaid case, it has further been held :
'22. The next question is as to whether the bar created under Section 52-C will also oust the jurisdiction of this Court. This question will not detain ine for long as It is well settled by now that Articles 226 and 227 of the Constitution of India are not one of such provisions which can be changed by ordinary legislation. The power can be curtailed only by amendment in the Constitution. The State amendment brought by State Act cannot curtail or take away the power of this Court under Articles 226 and 227 of the Constitution of India. However, the power or discretion under Articles 226 and 227 of the Constitution of India is to be exercised on well established principles and not arbitrarily and it is subject to the certain self imposed restrictions. Its object is to see that authorities and tribunals act within the bound of their jurisdiction. No writ can be issued to frustrate the object of the Act. Nor it can be issued to make a valid statutory enactment otiose and redundant. However, I do not mean to say that this Court is powerless to interfere in appropriate cases but such cases will be far and few.
23. In cases where on the face of material it appears that the confiscation proceeding is unjustified and wholly illegal then the helping hands of this Court will rescue the aggrieved persons but issuance of writ in all the cases releasing the vehicle or forest produce during the pendency of the confiscation proceeding before the authorized officer under the Forest Act will result in miscarriage of justice and will frustrate the object of the Act as stated above. When the parties approach this Court for release of the forest produce or the property including vehicles used in commission of the offence with regard to which the confiscation proceeding is pending, this Court in first instance will direct the confiscating agency to dispose of the proceeding at an earliest for the simple reason that once the confiscation proceeding is concluded the aggrieved person has right of appeal and the Appellate Court has power to pass an interim order. The provisions of Section 52 clearly shows that the legislature never intended that the forest produce and the articles used in commission of the offence should be released in course of confiscation proceeding. However, when there is unreasonable delay resulting in miscarriage of justice the Court in appropriate case may release the vehicle till the conclusion of the confiscation proceeding with a clear stipulation that if an order for confiscation has been passed after conclusion of the confiscation proceeding the vehicle and the forest produce should be produced before the confiscating authority before filing an appeal as provided under Section 52-A of the Act.'
8. In 1996(1) PLJR 77, (supra), it has been held as follows :--
'42. So far Cr WJC No. 567/94(R) is concerned, the petitioner has directly come to this Court. No, doubt, in an appropriate case where no offence is made out this Court in exercise of its extraordinary power under Section 226 of the Constitution of India may release the vehicle but such circumstances will be far and few for the simple reason that this Court will not exercise its discretionary power to frustrate the provisions contained in Sections 52 to 52-D of the Indian Forest Act as amended by the Bihar Amendment Act.
44. In Cr WJC No. 757/94 (R) the petitioner has challenged the order dated 17.11.1994 passed under Section 52 of the Indian Forest Act as amended by the Bihar Amendment Act. There is right of appeal and revision under the said Act and the appellate Court has also power to release the vehicle. In my view, the petitioner should approach the appellate Court against the order of confiscation. If such an appeal is filed the appellate Court will consider and dispose of the appeal on merits and will not dismiss the appeal on the ground of limitation as the appellant has been prosecuting the writ application before this Court.'
9. In the instant case, the confiscation proceeding has already been completed and order has been passed, and thus there is no question of delay in disposal of the confiscation proceeding.
10. As discussed above petitioner has got remedy of appeal or revision and petitioner has not exhausted these remedies and further the grounds taken by petitioner before this Court for violation of principles of natural justice, non-service of notice and thereby not affording the proper opportunity of hearing before the compatent authority in confiscation proceeding, have been dealt with in paragraph 4 of this judgment and it is clear that there is no violation of principles of natural justice and the petitioner has been afforded opportunity of hearing. Further as per discussions made above, the case laws cited by the petitioner are not applicable in the facts and circumstances of the case, whereas case laws cited on behalf of the State clearly lays down that under the provisions of Indian Forest Act, 1927 and as laid down under Section 52-C of the Indian Forest Act, 1927, Bihar amendment, petitioner should exhaust all the forums and get relief from those forums.
11. In that view of the matter, I do not find any merit in this revision application, which is accordingly dismissed. However, the petitioner is at liberty to approach the appellate Court against the order of confiscation and if such an appeal is filed, the appellate Court will consider and dispose of the appeal on merit and also on the ground of limitation, as the appellant has been prosecuting this revision application before this Court.