Ram Gopal Vs. Tara Chand Dubey Judgement Given By: Hon'ble Shri Justice Rajendra Menon - Court Judgment

1 HIGH COURT OF MADHYA PRADESH AT JABALPUR MCrC. No.:

8202. Of 2013 Ram Gopal V/s Tara Chand Dubey & Another Present : Hon’ble Shri Justice Rajendra Menon. -------------------------------------------------------------------------------------------- Shri Rahul Tripathi, counsel for the applicant. Shri Rahul Jain, learned Dy. Advocate General for the respondents. -------------------------------------------------------------------------------------------- ORDER

171.2014 Challenging the order dated 4 t h April, 2013, passed by Special Judge (Atrocities), District Seoni in Criminal Revision No.101/2012 in a proceeding held under the Indian Forest Act, this application has been filed for quashing the proceedings and the order impugned pertaining to confiscation of vehicle.

2. Applicant is the owner of a Swaraj 735 Tractor bearing Chassis No.WWWTA3560579691 and Engine No.391350/SPAQQ7985. On 02.12.2011, the said vehicle was seized on account of illegal quarrying of sand by the Forest Department. Proceedings were held for confiscation of vehicle by the Forest Officer under provisions of Indian Forest Act, 1927 by a detailed order passed, as is evident from Annexure P-1, the Authorized Officer came to a 2 conclusion that the vehicle is not proved to have been used for quarrying purpose or illegal activities, therefore, the proceedings for confiscation were dropped by the Authorized Officer.

3. Against the order passed by the Authorized Officer rejecting the prayer for confiscation, respondent No.1, the Range Officer filed an appeal before the competent authority vide Annexure P-2. The applicant on being noticed appeared and filed a detailed objection before the Appellate Authority and pointed out that the appeal at the instance of respondent No.1 is not maintainable. Reply filed by the applicant before the Appellate Authority is Annexure P-4. However, as the objection with regard to maintainability of appeal was rejected by the appellate authority, the matter traveled in revision and the same having been dismissed by the impugned order Annexure P-6 dated 04.04.2013, this application has been filed under Section 482 of CrPC.

4. Learned counsel for the applicant invites my attention to the provision of Section 52-A, as is applicable in the State of Madhya Pradesh and submits that under Section 52-A(1) an appeal is provided only against the order of confiscation. Under Section 52-A (1), no appeal is provided against an order pertaining to release of vehicle. However, under sub section (2) of Section 52-A certain powers are given to exercise suo moto action by the appellate authority and the procedure for hearing of such an appeal by the appellate authority and to exercise suo moto powers as contained from sub section (3) to sub section (6) Shri Rahul Tripahti, learned counsel for the 3 applicant argued that the only statutory provision for filing an appeal is sub section 52-A (1) and the powers of initiating suo moto appeal proceeding is available to appellate authority under Section 52-A (2). Initially even the powers of the appellate authority to initiate suo moto powers under sub section (2) was in the matter of an order of confiscation only, but subsequently by the Indian Forest Amendment Act, 2009 brought into force w.e.f. 27.03.2010 vide Annexure P-7. Sub section (2) and (6) of Section 52-A, it is amended and instead of the words “order of confiscation”. used therein the words “order of Authorized Officer”. is substituted, meaning thereby that all the orders passed by the authorized officer are now subject to the exercise of suo moto powers by the appellate authority under Section 52-A (2) and (6). But, as in this case no suo moto power is exercised but the appeal is filed under Section 52-A (1) by respondent No.1, it is stated that by misinterpreting the statutory provisions to the revisional authority, the revisional authority proceeded in the matter.

5. Referring to an order passed by the revisional authority with reference to this amendment, learned counsel argued that the appellate authority committed grave error in applying the amendment to Section 52-A (2) and (6) to the provision of Section 52-A(1), when the appellate power, as contemplated under Section 52-A (1) was never amended.

6. Learned counsel for the applicant placing reliance of a judgment rendered by a Bench of this Court in the case of Umashankar Usrete Vs. State of M.P. 4 and Others 2008 (4) MPHT393 submitted that against an order of release of vehicle no appeal under Section 52-A (1) by any person is permissible. Even if the Range Officer is an aggrieved person as held in the case of Uma Shankar (supra) but if the order of Authorized Officer is that of release, the appeal is not maintainable, according to Shri Rahul Tripahti learned counsel for the applicant.

7. Shri Rahul Jain, Deputy Government Advocate refuted the contentions and tried to emphasize that the amended provision does give power and that in view of amended provision, the appeal was maintainable and the appellate authority and the revisional authority have not committed any error in rejecting the objection of the applicant.

8. I have heard learned counsel for the parties at length and perused the record. Section 52-A of the Indian Forest Act, 1927 as is applicable in the State of Madhya Pradesh contemplates a provision for filing of appeal under Section 52-A(1). It is laid down in this provision that any person aggrieved by any order of confiscation may file an appeal within the period stipulated therein and the explanation to this section permits excluding the period for obtaining certified copy. Sub-section (2) of Section 52-A, as is stood prior to amendment brought into force before 27.3.2010, contemplate a provision where the appellate authority referred to in sub section (1) was also authorized to initiate suo-motu action in case of an order of confiscation and thereafter sub-section (3) onwards upto sub-section (8) the procedure is to be followed by the appellate authority, are indicated. However, sub-section (6) contemplates a provision 5 in the matter of hearing of suo motu applications. Even though by amending Section 52-A sub-section (2) & (6) the words “order of confiscation”. is substituted by the word “order of authorized officer”. the said substitution is made only in sub-section (2) and the corresponding sub-section (6) but not to sub section (1). Sub-section (1) is only provision which gives the power to any person aggrieved to file an appeal, but this right of appeal is available only against the order of confiscation, no appeal against the order of release of vehicle is provided under Section 52-A (1), nor is the word “order of confiscation”. used in sub-section 52-A (1) substituted by the amending provisions. What is substituted by amending the provision is the suo motu appellate power available under sub-section (2) to the appellate authority and now after the amendment the appellate authority has power to initiate suo- motu power against any order of authorized officer.

9. That being so, Shri Rahul Tripathi, learned counsel is right in contending that the appeal by respondent No.1 who is neither the authorized officer, nor appellate authority was not maintainable. The appeal filed by respondent No.1 was under sub-section 1 and under sub-section 1 of Section 52-A, as a appeal could be filed only against an order of confiscation, the appeal at the instance of respondent No.1 against an order for release of vehicle was not maintainable, this is the principle laid down in the case of Uma Shankar Usrete (supra) also.

10. Without adverting to consider all these questions the learned revisional court and the appellate court have rejected the objection of applicant only by saying that after amendment to Section 52-A (2) and (6) the appeal was 6 maintainable. The substitution and amendment to Section 52- A (2) & (6) will not effect the right available to any other person under Section 52-A (1). The provisions of Section 52-A (1) only permits an appeal against an order of confiscation and not against any other order, i.e. an order for release of vehicle.

11. Accordingly, this petition is allowed. The orders passed by the appellate authority and the revisional authority in the matter of confiscation of vehicle at the instance of respondent No.2 is quashed and order Annexure P-1 passed by the authorized officer releasing the vehicle from confiscation is upheld.

12. With the aforesaid, the petition stands allowed and disposed of. Certified copy as per rules. (Rajendra Menon) Judge ss/