State of J & K vs Ali Mohammad Patloo

The petitioner has invoked the jurisdiction of this Court in terms of Section 561A Code of Criminal Procedure for quashing the order dated

31.12.2004 (hereinafter for short impugned order) passed by 4th Additional Session Judge, Srinagar, in revision petition titled Ali Mohammad

Patloo Vs. State of J and K, whereby and whereunder the revisional court released the seized vehicle (confiscated vehicle) in favour of respondent

on superdnama.

Heard. Perused. Considered.

It appears that truck bearing registration No. JKO1/4546 came to be seized along with illicit timber and Divisional Forest Officer (DFO), Urgan

Forestry Division, Srinagar (Authorized Officer under Section 26 of the Jammu and Kashmir Forest Act), initiated proceedings under Section 26

of the Act and confiscated the said vehicle vide order dated 17th October, 2004.

The respondent herein, feeling aggrieved of the said order preferred a revision petition before Principal District and Session Judge, Srinagar,

which came to be transferred to the court of 4th Additional Sessions Judge, Srinagar. The said revision petition is still subjudice.

The respondent, herein, also moved an application for the release of vehicle in question and learned 4th Additional Sessions Judge, Srinagar,

released the vehicle on superdnama in favour of petitioner/owner i.e. respondent, herein, with a stipulation to undertake to produce the vehicle

before the court as and when required.

The petitioner, herein, feeling aggrieved of the said order preferred this petition.

The core question is whether this petition is maintainable'?

In order to return finding, it is necessary to reproduce Section 561A Code of Criminal Procedure herein, which reads as under:

561A Saving of inherent power of High Court.Nothing in this Code shall be deemed to limit or affect the inherent power of High Court to make

such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to

secure the ends of justice.

While going through this provision of law the exercising of powers under section 561A Code of Criminal Procedure is an exception and not the

rule. This provision of law does not confer any new powers on the High Court. It prescribes following three circumstances under which inherent

jurisdiction can be exercised by the High Court:

1) to give effect to an order under the Code;

2) to prevent abuse of the process of Court; and

3) to otherwise to secure the ends of justice.

While exercising powers under this Section, this court does not function as an appellate court or revisional court. Thus the inherent jurisdiction in

terms of this Section is to be exercised sparingly, carefully and with great care and caution.

Keeping in view the said proposition of law, whether this remedy can be exercised in view of the circumstances of the case given hereinabove?

It is necessary to notice Section 26(B) of Jammu and Kashmir Forest Act, herein, which reads as under:

26B. Revision before Court of Sessions Judge against order of confiscation.

(1) Any party aggrieved by an order of confiscation under [Section 26] may within thirty days of the order or if facts of the confiscation have not

been communicated to him within thirty days of knowledge of such order submit a petition for revision to the Court of Sessions Division whereof

the headquarters of Authorised Officer are situated.

Explanation I........................................

Explanation II......................................

(2) The Court of Sessions may confirm, reverse or modify any final order of consequential nature passed by the Authorised Officer.

(3) Copies of the order passed in revision shall be sent to the Authorised Officer for compliance or passing such further order or for taking such

further orders or for taking such further action as amy 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,

Samvat 1989.

(5) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, Samvat 1989, the order of Court of Sessions passed

under this section shall be final and shall not be called in question before any Court.

In terms of this Section, an aggrieved party can file revision petition before Sessions Judge, against the order passed by Authorized

Officer and the order of Session Judge is final.

In the instant case the revision petition is still subjudice and during the pendency of revision petition, the interim custody of the vehicle came to

be ordered vide impugned order. The learned Session Judge, is within his powers to pass interim orders during the pendency of the revision

petition even release of the seized vehicle also. The judgement of the Apex Court reported in AIR 2000 SC 2729 relied upon by petitioner herein,

also provides that interim custody of the vehicle can be ordered. It is profitable to reproduce relevant portion of the judgement, herein, which reads

as under:

...............We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the

same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory

proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank

guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when

such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat

commission of such offence. Its casualty will be the forests as the same cannot be replenished for years to come.

Keeping in view the test laid down by the Apex Court in the said judgment (supra), it cannot be said that impugned order is abuse of the

process of law. The learned 4th Additional Session Judge, had instead of asking respondent to provide bank guarantee asked respondent to

execute superdnama with undertaking to produce the vehicle before the Court as and when required.

The Apex Court in case titled Section Forester Vs. Mansur Ali Khan, reported in AIR 2004 SC 1251, has held that release of vehicle during

the pendency of proceedings is permissible only for good reasons. It is profitable to reproduce para9 of the said judgement herein:

9.Release of such vehicle during the pendency of the proceedings though permissible, same should be done for good reasons and that also upon a

minimum condition of furnishing Bank guarantee as contemplated under the Act itself.

Thus, in the given circumstances, it cannot be said that the impunged order is abuse of the process of law and, has caused miscarriage of

justice. The petition is not maintainable.

Viewed thus, petition is dismissed along with connected CMP(s). However, learned 4th Additional Session Judge, Srinagar is, hereby, directed to

decide the revision petition within one month from 13th March, 2006. Parties are directed to cause appearance before the trial court on

13.03.2006.

Registry is directed to send down the record along with a copy of this order.