Shoukat Khan Son of Shri Rati Khan vs State of Rajasthan

Petitioner has filed this petition under

Section 482 of the Cr.P.C. challenging the order

dated 23/11/2016 passed by the Magistrate First

Class, Bhiwadi, Distt-Alwar in FIR No.391/2016

before the Police Station Bhiwadi Phase-IIIrd,

Distt-Alwar for offence under Section 379, 120B IPC

4, 21 M.M.D.R. 33, 41, 42 of Rajasthan Forest Act,

1953 for giving Supurdgi of vehicle (Dumper)

bearing No.H.R.-55 P-1211 .

Learned counsel for the petitioner Smt.

Sunita Vashishta has stated that the court below

has heard the application moved by the petitioner

for release of the vehicle in question on superdgi.

Learned counsel has drawn attention to the Section

55 of the Rajasthan Forest Act, 1953 (hereinafter

referred as ''The Act of 1953''), whereby the

confiscation could be initiated only upon the

conviction of the offender for the offences

pertaining to the Forest Act subject to the

provision of Section 52-(A)(B) and (C).

Section 55 of the Rajasthan Forest Act,

1953 reads as follows:

"55. Forest Produce, tools etc. when liable to confiscation.- (1) All timber or forest produce which is not the property of State Government and in respect of which a forest offence has been committed, and all machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing any forest offence, shall, subject to the provisions of Section 52, 52A, 52B and 52C be liable to confiscation upon conviction of the offender for such forest offence.]

(2) Such confiscation may be in addition to any other punishment prescribed for such offence.

The counsel for the petitioner has stated

that since the conviction has not been made,

therefore, any valid confiscation proceedings could

not have been initiated by the respondent and,

therefore, the vehicle is liable to be released.

Learned counsel for the respondent Smt.

Sonia Sandilya and Shri Narendra Shekhawat, both

the Public Prosecutor have drawn attention of the

Court towards the judgment passed by the Hon''ble

Division of this Court in D.B. Criminal Misc.

Petition No.76/2014 titiled Harun Vs. State of

Rajasthan decided on 23/9/2015, whereby the release

of vehicle under Rajasthan Forest Act, 1953 has

been dealt with at length. Hon''ble Division Bench

has held that jurisdiction of the Magistrate Court

would be barred under Section 52 (C) of the Act of

1953 and the same shall operate upon the initiation

of confiscation. The relevant portion of the

judgment is as follows:

"21. We accordingly hold that vehicle seized under the provisions of the Rajasthan Forest Act, 1953 cannot be released during the pendency of trial on supurdgi to the registered owner by the Magistrate, where the trial is pending, in view of specific bar to jurisdiction of Court under section 52C of the Act. But, the bar to jurisdiction operates only when a Magistrate receives intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation.

With the above answer, the petitions are finally disposed of. The petitioners will be at liberty to apply afresh either before the competent Magistrate having jurisdiction or Authorized Forest Officer, as the case may be, for interim release of vehicle. Needless to mention that the Magistrate or Authorized Forest Officer shall pass speaking order on such application, having regard to our above answer to the question of law framed by the learned Single Judge. A copy of this order be placed in all the connected files."

The counsel for the respondents have also

referred to Section 52 (c) whereby there is an

express bar to jurisdiction of Court under certain

circumstances.

Learned counsel for the petitioner has

also relied upon the judgment passed by this Court

in SB Criminal Misc. Petition No.592/2017 in case of

Ugma Balai Vs. State of Rajasthan, whereby while

relying upon the judgment, the relevant portion of

the judgment is as follows:

"Learned counsel for the petitioner has submitted that the petitioner is the attorney holder of the vehicle in question. Learned counsel has submitted that the courts below have erred in dismissing the application moved by the petitioner for release of the vehicle in question on Superdari. Learned counsel has submitted that there was no statutory bar on release of the vehicle in question on Superdari to the petitioner during trial. In support of his arguments, learned counsel has placed reliance on decision of this court on Shakir Hussain versus State of Rajasthan in S.B. Criminal Misc. Petition No. 4389/2016 decided on 26.09.2016.

Learned State Counsel on the other hand, has opposed the petition.

Keeping in view the submissions made by learned counsel for the petitioner this petition is allowed. It is ordered that the vehicle bearing registration No. RJ-26-RB-3576 be released to the petitioner forthwith subject to his furnishing necessary Superdari bonds to the satisfaction of the trial court."

Learned counsel for the petitioner also

relied upon the judgment of Yunush Vs. State of

Rajasthan in S.B. in Criminal Misc. Petition

NO.3944/2016 decided on 14/9/2016, the relevant

portion of the judgment is as follows:

"Contention of the learned counsel for petitioner is that the aforesaid tractor with trolley was seized in connection with the offence under Sections 41 and 42 of the Rajasthan Forest Act and Sections 279, 379, 336, 120-B of the IPC in FIR No.163/2014 on 04.05.2014. After registration of the FIR, the procedure prescribed under Sections 52(2) and 52(4) of the Rajasthan Forest Act, was not put in motion. The police without there being any implication of provision of Section 52 of the

Act, filed the charge-sheet in the matter. After filing of chargesheet, petitioner moved an application under Section 451 of the Cr.P.C. for release of the vehicle on ''supurdgi'', which came to be rejected vide order dated 14.08.2014.

Learned counsel for petitioner submitted that in view of the aforesaid facts, petitioner is entitled for the custody of the tractor with trolley. There is no other claimant. No useful purpose will be served in keeping the vehicle in police custody. It may deteriorate its condition, which will be a national wastage. There is no statutory bar on the release of the vehicle on ''supurdginama'' during the trial.

Learned counsel for petitioner in support of his argument, placed reliance on the judgments of this Court in Arif Khan Vs. State of Rajasthan : 2004 WLC (Raj.) UC 540 & Nanda Vs. State of Rajasthan : 2004 WLC (Raj.) UC 608.

Thus, considering all the facts and circumstances of the case, I deem it just and proper to allow this petition under Section 482 Cr.P.C. for securing ends of justice.

Consequently, the petition is allowed. The order dated 14.08.2014 of learned trial court is set aside. It is directed that Tractor bearing registration No.HR-26-BF-4189 with trolley shall be delivered to the petitioner on ''supurdgi'' on his furnishing "supurdginama" in the sum of Rs.3,00,000/- with two sureties in the amount of Rs.1,50,000/- each, undertaking to produce the vehicle in question before the concerned court as and when required and shall keep the condition of the vehicle intact and shall not transfer, mortgage or otherwise alienate the vehicle or damage it and change its shape in any manner whatsoever. The petitioner shall also furnish photographs of the Tractor with trolley showing its numbers, colour etc. It is made clear that in future if the vehicle is found to have been used in similar offence in future, the same would be liable to be confiscated."

Learned counsel for the respondents also

furnished a factual report addressed to her in

which the fact was that the concerned Police

Station has proceeded for ordering of confiscation

of the vehicle before the respective forest

authority.

The provisions of Section 52 (C) of the

Rajasthan forest Act, 1953 reads as follows:

"52-(C) Bar to jurisdiction of Court, etc. under certain circumstances.- (1) On receipt of intimation under subsection (4) of section 52 about initiation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property, which is subject matter of confiscation, has been made, no court, tribunal or authority (other than the authorised officer, the Appellate Authority and the Court of Sessions referred to in sections 52, 52A and 52B), shall have jurisdiction to make orders with regard to possession, delivery, disposal, or distribution of the property in regard to which proceedings for confiscation are initiated under Section 52, notwithstanding anything to the contrary contained in this Act or in 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, then receipt of intimation under sub-section (4) of section 52 by one of the Courts of Magistrates having such jurisdiction shall be construed to the receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts.

(2) Nothing in sub-section (1) shall affect the power saved under Section 61 .]

After hearing the counsel for both the

parties and perusing the record of the case as well

as precedent law cited, this Court is of the

opinion that Section 55 of the Act, 1953 creates an

obligation upon the respondents to begin the

confiscation only upon the conviction of the

offender of such forest offences. The legislative

intention under Section 55 of the Act, 1953 is

apparent the special law of confiscation shall

apply only when the persons have been convicted

under the forest offences. The language of the

Provision 52 (C) is also very clear in the same

terms and same ousts the jurisdiction of the court

upon initiating for confiscation of the property by

the Magistrate having jurisdiction to try the

offences on account of such seizure of property

which is subject matter of confiscation has been

made.

The precedent law cited by the respondents

laid down by the Division Bench of this Hon''ble

Court in the case of Harun Vs. State of Rajasthan

(supra) also stated that bar to jurisdiction

operates only when the Magistrate receives

intimation under sub Section 4 of Section 52 about

the initiation of the proceedings for confiscation.

Observation in para 21 of the judgment makes it

clear that the bar to jurisdiction shall operate

upon a Magistrate only when the confiscation

proceedings have been initiated. On the conjoint

reading of the precedent law as well as the Act of

1953 it is clear that Section 55 imposes the

condition of initiating confiscation upon the

conviction of the offender for the forest offences

and until such conviction happens bar to the

jurisdiction to release the vehicle concerned shall

not operate in light of the aforementioned

discussions.

The misc. petition is allowed and the

impugned order dated 23/11/2016 passed by the

Magistrate First Class, Bhiwadi, District Alwar

(Raj.) is quashed and set aside and it is ordered

that the possession of Dumper bearing Registration

No.HR-55 P-1211 should be handed over to the

petitioner on ''Supurdgi'' on his furnishing

"Supurdginama" for the sum of Rs.3,00,000/- (Rs.

Three Lacs) with two sureties for the amount of

Rs.1,50,000/-(Rs. One Lac fifty thousand) each, and

undertaking to produce the vehicle in question

before the concerned court as and when required.

The owner shall keep the condition of the vehicle

intact and shall not transfer, mortgage or alienate

the vehicle or damage it and change its shape in

any manner. The petitioner shall also furnish

photographs of the vehicle showing its numbers,

colour etc. It is made clear that in future if the

vehicle is found to have been used in similar

offence the same would be liable to be confiscated.