Gauhati High Court
Binad Narzary vs The State Of Assam And 2 Ors on 11 June, 2024
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GAHC010001042022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./4/2022
BINAD NARZARY
S/O LT. MANGAL NARZARY
R/O VILL- KHORPAGURI, P.O. KHUNGRING, P.S. RUNIKHATA,
DIST. CHIRANG, ASSAM, PIN-783375
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE PP, ASSAM
2:THE DIVISIONAL FOREST OFFICER
AIE VALLEY
BONGAIGAON
ASSAM
PIN-783380
3:SEIZING OFFICER OF THE CENTRAL PROTECTION SQUAD
AIE VALLEY DIVISION
BONGAIGAON
PIN-78338
Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 11-06-2024
Heard Mr. A. Boro, learned counsel for the petitioner Sri Binod Narzary.
Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the
respondent State and Mr. D. Gogoi, learned Standing counsel for the Forest
Department being the respondent Nos. 2 and 3.
2. The petitioner has filed this application under Section 401 read with
Section 397 of the Code of Criminal Procedure, 1973 (CrPC for short) against
the judgment and order dated 03.12.2021 passed by the learned Sessions
Judge, Bongaigaon in Criminal Appeal No. 08/2021, passing an order for
confiscation of the vehicle bearing registration No. AS-26C-6470, a vehicle of
Bolero Pick Up FB make.
3. It is submitted on behalf of the respondent Nos. 2 and 3 that instead of
going into the merits of the case, a direction may be given to the petitioner to
appear before the learned District Judge, Bongaigaon against the
aforementioned order impugned by the petitioner. The Bolero Pick Up vehicle
was seized and confiscated vide order dated 26.07.2021 by the authorized
Officer cum Divisional Forest Officer, Aie Valley Division, Bongaigaon through OR
No. SPQ/13 dated 24.10.2020.
4. Aggrieved by this order, the petitioner preferred an appeal before the
Sessions Judge, Bongaigaon and the appeal was numbered as Criminal Appeal
No. 08/2021 and the appeal was dismissed vide order dated 03.12.2021.
5. The respondent Nos. 2 and 3 have relied on the decision of this Court vide
order dated 26.06.2023 in connection Criminal Petition No. 1060/2022 and have
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submitted that the appeal lies before the District Judge and not before the
Sessions Judge and the appeal has to be registered as Misc Appeal and not as a
Criminal Appeal. It has been observed by this Court in Criminal Petition No.
1060/2022 that:
"15. I have considered the rival submissions made by learned counsel for both
the sides and have gone through the cited rulings. In the instant case, the
impugned order of interim custody has been passed in an appeal under Section
49 (c) of the Assam Forest Regulation, 1891. Even a cursory perusal of the said
provision would reveal without any ambiguity that any person aggrieved by an
order under section 49(4) or 49-B of the Assam Forest Regulation, 1891 may
within 30 days from the date of communication to him of such order prefer an
appeal to the District Judge having jurisdiction over the area in which the
property has been seized . It also appears, that it is the District Judge, who after
giving reasonable opportunity of being heard to the parties may pass such
order either varying, confirming, modifying, annuling on setting aside the order
appealed against and the order of the court so passed shall be final. Thus,
Section 49 (c) of the Assam Forest Regulation, 1891 in unambiguous terms
gives appellate jurisdiction, against an order of confiscation, passed under
section 49(4) of the Assam Forest Regulation, 1891 by the authorised officer,
only to the District Judge and none else. As observed by Hon'ble Supreme Court
of India in "Superintendent of Police, Manipur and Ors. -Vs- R. K.
Tomalsana Singh (Dead) by "(Supra) when the power is conferred by statute
on the statutory authority and as such the said power can be exercised by that
authority alone and the factum that one person is exercising two separate
authorities is irrelevant.
16. In the instant case also, though the appeal under Section 49 (c) of the
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Assam Forest Regulation, 1891 was filed by the present respondent in the court
of learned District and Sessions Judge, Kamrup, Amingaon, however, on perusal
of the record of Criminal Appeal No. 02/2022 would reveal that all the orders
passed in the said appeal were by learned Sessions Judge Kamrup, Amingaon.
This, in the considered opinion of this court may not be regarded as a mere
irregularity, which may be cured by Section 465 of the Code of Criminal
Procedure, 1973 as both the courts, that is, the court of District Judge and the
court of Sessions Judge are created by two different statutes and they exercise
different jurisdictions. Moreover, in an appeal before District Judge, the
provisions of Chapter 14 of the Civil Courts Rules and Orders of Gauhati High
Court would be applicable, whereas, in an appeal before Sessions Judge the
provisions of the Chapter 2 of Gauhati High Court Criminal Rules and Orders
would be applicable. It is also not clear as to why the appeal preferred under
Section 49 (c) of the Assam Forest Regulation, 1891 was registered as a
Criminal Appeal, whereas, considering the fact that the appeal lies before the
District Judge, it ought to have been registered as a Miscellaneous Appeal."
****
"19. The District Judge, Kamrup, Amingaon is hereby directed to re number
the Criminal Appeal No 2/2022 as Miscellaneous Appeal and dispose it of as
expeditiously as possible, preferably, within three weeks of the receipt of copy of
this judgment."
6. In the conspectus of the decision of this Court in The State of Assam and
Anr. vs. Philo Kumar Deori in connection with Criminal Petition No. 1060/2022 , I
deem it appropriate to direct the petitioner to appear the District Judge,
Bongaigaon and present his appeal as per Section 49-C of the Assam Forest
Regulation, 1891, within a period of one month from the date of receipt of
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certified copy of this order.
7. In the above terms, this Criminal Revision Petition stands disposed of.
JUDGE
Comparing Assistant
