Babulal Lodhi vs State of Madhya Pradesh and Another

N.D. Ojha, C.J.

Petitioner by Shri Masood Ali. He is heard.

The petitioner claims to be the owner of a tractor and a trolley which were seized by a Range Officer in exercise of powers conferred by the Wild Life (Protection) Act, 1972. The petitioner made an application before the Judicial Magistrate Sagar purporting to be u/s 457 of the Cr. P. Code for the release of the said tractor and trolley. This application was dismissed by the Judicial Magistrate on 10-1-1987. Aggrieved by that order, the petitioner has instituted this writ petition with a prayer for quashing the aforesaid order dated 10-1-1987 and for direction to the respondents to release the tractor and the trolley.

Having heard counsel for the petitioner, we are of the opinion that the application which was made by the petitioner before the Judicial Magistrate u/s 457 of Cr. P. C. was not maintainable and the Magistrate did not have any jurisdiction to entertain the said application which was clearly misconceived and the same having been dismissed, no case for any interference under Article 226 of the Constitution has been made out.

Section 457 of the Cr. P.C. contemplates exercise of jurisdiction by a Magistrate in case where seizure of the property is by any police officer. In Balkishan A. Devidayal Vs. State of Maharashtra, , a question came up for consideration as to whether an officer of Railway protection force making an enquiry u/s 8 of the Railway Property (Unlawful Possession) Act, 1966, was a police officer or not. It was pointed out that the character of the enquiry which an officer of the Railway Protection Force was entitled to make, was different from that of investigation under the Cr. P. Code. The officer of the R.P.F. had no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned u/s 173 of the Cr. P.C. which had been held to be the clinching attribute of an investigating police officer.

In the instant case, it has not been disputed by counsel for the petitioner that the Range Officer who seized the tractor and the trolley, did not have any power to initiate prosecution by filing a charge-sheet before the Magistrate. The clinching attribute, as pointed out by the Supreme Court, of an investigating police officer, being lacking in the instant case, it cannot be said that the seizure by the Range Officer was seizure by a police officer within the meaning of Section 457 of the Cr. P. Code.

In Ravi Shanker Vs. Siyaram and Others, , a truck had been seized by a Forest Officer u/s 13 of the M. P. Van Upaj (Vyapar Viniyaman) Adhiniyam 1969. It was held that the seizure by such Forest Officer could not be said to be seizure by a Police Officer and consequently Section 457 of the Cr. P.C. was not attracted.

In this view of the matter, we find no merit in the present writ petition which is accordingly dismissed summarily.

C.C. be supplied on payment of usual charges.