20 January 2020


Judgments

High Court of Jammu and Kashmir

Divisional Forest Officer, Doda Vs. Zia Ul Rasheed

MANU/JK/0286/2017

28.10.2017

Criminal

Once Session judge has found that order of authority is not accordance with law, then that order cannot be quashed

In the instant petition, the Petitioner has assailed the validity of the order passed by Additional Sessions Judge, whereby the order passed by Petitioner in his capacity as an Authorised Officer, was quashed. A vehicle (TATA SUMO) of which the Respondent is a registered owner, was seized by the police; the vehicle was involved in smuggling the Nag Chatri (Trilium Govanianum), a banned Minor Forest Produce (MFP); the total quantity of the Minor Forest Produce was to the extent of 175 Kgs. Petitioner concluded that, the vehicle was involved in smuggling of the NAG CHATRI and as such vide order, vehicle along with MFP was confiscated. Issues involved in present case is whether the Sessions Judge can set aside an order under Section 435 of the CrPC without making a reference to High Court under Section 438 of the CrPC and that whether the Sessions Judge can re-appreciate the facts under Section 26-B of the Forest Act when owner of the vehicle to whom the notices regarding confiscation of the vehicle has failed to satisfy the authority that the vehicle has been used without his knowledge and connivance as amended in terms of sub-clause 5 of Section 26 of the Forest Act.

Vide Amendment Act of 2006, Section 438 of CrPC has been amended and old Section has been substituted by Act XI of 2006, which provides that, in the case of any proceeding the record of which has been called for by him, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section(1) of Section 439. Where any proceeding by way of revision is commenced before a Sessions Judge under sub-Section(1) the provisions of sub-Sections (2), (3), (4) and (5) of Section 439 shall, so far as may be, apply to such proceedings and references in the said sub-Sections to the High Court shall be construed as references to the Sessions Judge. Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court. An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge." In view above substituted Section, there is now no need of reference to be made by Session Judge while setting aside order of subordinate authority in exercising the revisional power.

Under the Forest Act, Sessions Judge 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. In present case, Court of Additional Sessions Judge, Doda has held that, as per Section 26(3) of Forest Act, the authorised officer has power to confiscate the forest products along with vehicle; but Section 26(5) of Act prohibits the officer to confiscate the vehicle used for commission of offence under this Act, if it is proved by owner that vehicle was used without his knowledge. The satisfaction of officer should be based upon defence taken by owner after providing him opportunity of being heard.

So called statement recorded nowhere discloses that, it was recorded on oath in the presence of authorized officer or in presence of the counsel for the Petitioner. These statements including the statements of other accused persons are not even signed by the authorized officer nor there is any material on record to disclose that these statements were recorded either by or in presence of the authorized officer in accordance with law. The minutes of the proceedings recorded by the authorized officer only show the presence/absence of the parties on certain dates of hearing without disclosing as to when these statements were recorded. The authorized officer has not even taken pains to procure the presence of complainant before it to record his statement to verify the allegations levelled against the Petitioner and other accused persons.

It is true that, when confiscation proceeding are pending, Criminal Court cannot release the vehicle. However, once a confiscation proceeding has been completed and vehicle is ordered to be confiscated, then order is revisable in terms of Section 26-B of Forest Act. The purpose of revision is to enable the revision Court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal Court. Sessions Judge may call for and examine the record of any proceeding in terms of Section 26-B of Act for the purpose of satisfying itself or himself as to the correctness, legality or propriety of order of authority under forest Act. It is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by any subordinate authority. In the Forest Act, revision power has been given to Session Judge on the analogy that, being senior and being head of subordinate judiciary, would have sufficient knowledge to correct miscarriage of justice arising from misconception of law, irregularity of procedure, committed by subordinate officer, which may affect substantial right of any parties.

This Court, while exercising the jurisdiction under Section 561-A of Cr.P.C., can only quash the order of a Court below to prevent abuse of process of law or to otherwise secure the ends of justice. Court while exercising the power under Section 561-A of Cr.P.C., does not function as Court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, careful and with great caution. Once Session judge has found that, order of authority is not accordance with law, then that order cannot be quashed. Order of Court below does not suffer from any infirmities of laws and facts. Petition is dismissed.

Tags : Proceedings Legality Supervisory jurisdiction

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