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ibrahim Akbarali Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1963CriLJ664; (1963)GLR493
Appellantibrahim Akbarali
RespondentState and anr.
Excerpt:
.....this provision enacted in section 59 thus clearly shows that section 56 applies only in respect of forest produce which has been seized under section 52 and that no order under; section 56 can be made unless the forest produce in respect of which the order is sought to be made is forest produce seized under section 52. the juxtaposition in wnich section 56 occurs also indicates clearly and unmistakably that the forest produce in respect of which an order can be, made under section 56 must be forest produce which has 'been seized under section 52. now in the present case 'there is nothing to show that the forest produce which formed the subject matter of the offence charged against the accused was seized by the forest officer or police offi-'cer under section 52. mr. kapadia also..........of the accused for a direction against the state not to proceed with the sale of certain forest produce pending the hearing and final disposal of the complaint filed by the state against the accused. the range forest officer of jetpur-pavi filed a complaint against the accused in the court of the judicial magistrate, first class, chhota udepur, for offences under clauses (e), (f) and (g) of sub-section (1) of section 26 of the indian forest act on the allegation that the accused had in a forest, in respect of which a notification had been-issued by the state government under section 4, caused damage by negligence in felling trees and cutting timber, made charcoal by burning trees and removed the forest produce in the shape of timber during the period from 31st august 1961 to.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. This Revision Application is directed against an order passed by the Additional Sessions Judge, Baroda, dismissing a Revision Application preferred by the accused against an order of the Judicial Magistrate, First Class, Chhota Udepur, rejecting the application of the accused for a direction against the State not to proceed with the sale of certain forest produce pending the hearing and final disposal of the complaint filed by the State against the accused. The Range Forest Officer of Jetpur-Pavi filed a complaint against the accused in the Court of the Judicial Magistrate, First Class, Chhota Udepur, for offences under clauses (e), (f) and (g) of Sub-section (1) of Section 26 of the Indian Forest Act on the allegation that the accused had in a forest, in respect of which a notification had been-issued by the State Government under Section 4, caused damage by negligence in felling trees and cutting timber, made charcoal by burning trees and removed the forest produce in the shape of timber during the period from 31st August 1961 to 8th September 1961 without the permission

in writing of the Forest Officer. The defence of the accused was that he had lawfully obtained a contract for cutting and removing timber from the former Jagirdar under an agreement dated 11th June 1954 and that he had also obtained the permission of the Mamlatdar of Jabugam under the Saurashtra Felling of Trees Act, 1954, for felling and cutting the trees of the forest and that he was, therefore, entitled to cut and remove timber of the forest and to make charcoal or fuel out of it. The accused contended that he had not violated any provisions of the Indian Forest Act and that he was, therefore, not liable to be convicted for the offences charged against him. During the pendency of the complaint the accused filed an application before the learned Magistrate requesting the learned Magistrate to pass appropriate orders regarding the proper custody of the forest produce in the shape of timber which had been cut by him and which was lying in the forest and in respect of which the complaint was filed against him and to direct the complainant not to proceed with the sale of the forest produce. This application was necessitated because the complainant during the pendency of the complaint invited offers for sale of the forest produce. On the application an ex parte order was granted by the learned Magistrate directing the complainant not to proceed with the sale of the forest produce during the pendency of the complaint but after hearing the complainant the interim order was vacated by the learned Magistrate. The accused thereupon preferred a Revision Application in the Court of the Sessions Judge, Baroda. The learned Additional Sessions Judge who heard the Revision Application agreed with the conclusion reached by the learned Magistrate and took the view that there were no compelling reasons in law or in fact to interfere with the order passed by the learned Magistrate. The learned Additional Sessions Judge accordingly dismissed the Revision Application. The accused thereupon preferred the present Revision Application in this Court.

2. Mr. B.R. Sompura, learned Assistant Government Pleader appearing on behalf of the State, contended before me that apart from the fact that there were no merits in the application of the accused, there was no provision of law under which such an application could be granted by the learned Magistrate. The answer given by Mr. B.S. Kapadia, learned advocate appearing on behalf of the accused, to this contention of Mr. B.R. Sompura was that an interim order directing the complainant not to proceed with the sale of the forest produce during the pendency of the complaint could be made by the learned Magistrate under Section 56 of the Indian Forest Act or in any event under Section 516A of the Code of Criminal Procedure. Now before considering the question whether Section 56 of the Indian Forest Act could at all be relied on by Mr. B.S. Kapadia for inviting the Court to make such an interim order, it would be convenient first to dispose of the argument based on Section 516A of the Code of Criminal Procedure. Section 516-A of the Coda of Criminal Procedure enables the Court to make an appropriate order for proper custody only when the property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence is produced before the Court during any inquiry or trial. Section 516-A of the Coda of Criminal Procedure would, therefore, have no application unless the property is produced before the Court during an inquiry or trial. There is nothing in the present case to show that the forest produce which formed the subject matter of the offence charged against the accused was produced before the learned Magistrate. As a matter of fact, the facts on record clearly indicate that such forest produce was not at any time produced before the learned Magistrate. All throughout it remained where it was in the forest and ail that was done by the complainant in regard to it was that a beat-guard was posted to look after it and to protect it from being pilfered or removed. It was, therefore, not competent to the learned Magistrate to make any interim order under Section 516-A of the Code of Criminal Procedure.

3. That takes me to the next question, namely, whether such an interim order as was sought for by the accused could be made by the learned Magistrate under Section 56 of the Indian Forest Act. Section 56 provides that when the trial of any forest-offence is concluded, any forest produce in respect of which such offence has been committed, shall, if it is the property of the Government or has been, confiscated, be taken charge of by a Forest Officer, and, in any other case, may be disposed of in such manner as the Court may direct. Mr. B.S. Kapadia contended that the forest produce in respect of which the application was made by the accused was forest produce which formed the subject matter of the offence charged against the accused. and that if ultimately at the end of the trial the learned Magistrate came to the conclusion that an offence in respect of such forest produce had been committed by the accused, the learned Magistrate would have jurisdiction to dispose of such forest produce in such manner as he thought fit, if it was not the property of the Government. If the learned Magistrate had the power at the end of the trial to give directions as regards the disposal of the forest produce which formed the subject matter of the offence, the power to make an interim order, argued Mr. B.S. Kapadia,. must be regarded as Inherent in this very provision. If the power to make an interim order was not to be implied, the power to make a final order at the conclusion of the trial might be defeated and the power to make an interim order must, therefore, be inferred by the Court by necessary implication. This contention of Mr. B.S. Kapadia would' have been well worth consideration but in my opinion it is not necessary for the purpose of the present Revision Application to enter upon any discussion of it since, in my opinion, Section 56 has no application at all to the facts of the present case. Section 56 would apply only where the forest produce in respect of which the offence is ultimately found to have been committed as a result of the trial has been seized by a Forest Officer or Police Officer under Section 52. A key to the understanding of the true import of Section 56 is to be found in the Sections which precede it and those which follow upon it. Section 52 deals with seizure and by Sub-section (1) provides that when there is reason to believe that a forest offence has been committed in respect of any forest produce, such forest produce, together with all tools, boats, carts or cattle used in committing any such offence, may by seized by any Forest Officer or Police Officer. Sub-section (2) of Section 52 then proceeds to enact as to what the Officer seizing such forest produce shall do in regard to such forest produce, the prescription of the sub-section being that the Forest Officer shall place on such forest produce a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Section 53 confers power on a Forest Officer of a rank not inferior to that of a Ranger to release any forest produce which may have been seized on the execution by the owner thereof of a Bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Then follows Section 54 which enacts that upon the receipt of the report of the Officer seizing the forest produce, the Magistrate shall with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to -law. The forest produce which is seized under Section 52 Is thus required to be disposed of by the Magistrate according to law, such law being inter alia the provisions of the Indian Forest Act including Sections 53 and 56. A provision for confiscation is enacted in Section 55 which provides that all forest produce which is not the property of the Government and in respect of which an offence has been committed, shall be liable to confiscation. Then comes Sec-Won 56 which is the Section which requires to be construed. Section 57 which follows upon Section 56 also provides for the ultimate disposal of the forest produce In respect of which an offence is found to have been committed. In those cases where the offender is not known or cannot be found, the procedure to be followed in case of perishable property seized under Section 52 is to be found in Section 58. Section 59 provides for appeals from orders under Sections 55, 56 and 57. That Section enacts that the Officer who made the seizure under Section 52, or any of his official superiors, or any person claiming to be interested In the property so seized, may, within one month from the date of any order passed under Section 55, Section 56 or Section 57, appeal therefrom to the Court to which orders made by such Magistrate are ordinarily appealable. It is apparent from this Section that though it is not expressly stated in Section 56 that the forest produce in respect of which an order can be made under that Section must be forest produce which has been seized under Section 52, the order under that Section postulates that the forest produce in respect of which it is made has been seized under Section 52. The right of appeal from an order under Section 56 is given to a person claiming to be interested In the property seized under Section 52. It Is difficult to believe that a right of appeal against an order under Section 56 should have been given to a person interested in the property only If the property was seized under Section 52 and that no such right of appeal should have been given to a person interested In the property If it was not so seized. This provision enacted In Section 59 thus clearly shows that Section 56 applies only in respect of forest produce which has been seized under Section 52 and that no order under; Section 56 can be made unless the forest produce In respect of which the order Is sought to be made is forest produce seized under Section 52. The Juxtaposition in wnich Section 56 occurs also indicates clearly and unmistakably that the forest produce In respect of which an order can be, made under Section 56 must be forest produce which has 'been seized under Section 52. Now in the present case ' there is nothing to show that the forest produce which formed the subject matter of the offence charged against the accused was seized by the Forest Officer or Police Offi-' cer under Section 52. Mr. B.S. Kapadia made a valiant but futile attempt to show that even if no markings were made on the forest produce forming the subject matter of the offence charged against the accused end no report of seizure was made to the learned Magistrate, there was in fact a seizure of such forest produce and that Section 56 was, therefore attracted. Mr. B.S. Kapadia also contended that the provision for marking of the forest produce seized and for making of the report of the seizure to the Magistrate was a directory provision and not a mandatory provision and that even If the requirements of that provision were not complied with, that did not affect the seizure of the forest produce if it was in fact seized and the applicability of Section 56 could not be defeated by the non-carrying out of those requirements. This contention may be attractive. But it is again not necessary for me to consider its validity for the purpose of deciding the present Revision Application, for I find that quite irrespective of the fact whether any marks were placed on the forest produce which formed the subject matter of the offence charged against the accused or whether any report was made to the learned Magistrate, there was in fact no seizure of such forest produce under Section 52. That being the position no reliance could be placed on behalf of the accused on Section 56 for the purpose of invoking a power in the learned Magistrate to make an interim order in respect of the forest produce forming the subject matter of the offence charged against the accused. I am, therefore, of the opinion that the learned Magistrate had no power to make an interim order providing for the custody of the forest produce or directing the complainant not to proceed with the intended sale of the forest produce.

4. In this view of the matter it is not necessary for me to consider whether the application of the accused was rightly dismissed on the merits. The Revision Application, therefore, falls and will be dismissed. The interim stay granted on 29th June 1962 will stand vacated.


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