Chhotelal Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 15076 MP

                                                                1
                               IN   THE HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                              ON THE 13 th OF SEPTEMBER, 2023
                                               WRIT PETITION No. 22798 of 2023

                          BETWEEN:-
                          CHHOTELAL TIWARI S/O SHRI DEVSHARAN TIWARI,
                          AGED ABOUT 57 YEARS, OCCUPATION: JOB R/O
                          KABADI TOLLA KRISHNANAGAR POLICE STATIN
                          KOLGAWAN DISTRICT SATNA (MADHYA PRADESH)

                                                                                            .....PETITIONER
                          (BY SHRI S.P. MISHRA - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH ITS
                                PRINCIPAL SECRETARY HOME DEPARTMENT
                                VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

                          2.    C O L L E C T O R , DISTRICT        SATNA      (MADHYA
                                PRADESH)

                          3.    SUPERINTENDENT OF POLICE DISTRICT SATNA
                                (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                          (BY SHRI PUNEET SHROTI - GOVERNMENT ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                          following:
                                                                 ORDER

By the instant petition filed under Article 226 of the Constitution of India, the petitioner is claiming the following relief :-

(i) To direct the respondent No. 2 to release the petitioner's registered vehicle CG 13 Y 5197.

OR Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 9/15/2023 6:01:00 PM

(ii) To direct the respondent No. 2 to decide the representation of the petitioner expeditiously for releasing of registered vehicle no. CG 13 Y 5197 by issuing the writ of Mandamus.

(iii) Any other relief which this Hon'ble Court finds the petitioner is entitled to be also granted.

(iv) Cost of the petition.

From the averments made in the petition, it reveals that the petitioner's vehicle bearing registration No.CG-13-Y-5197 was confiscated in an offence registered against him vide Crime No. 256/2021 for the offence punishable under Section 34(2) of the M.P. Excise Act. A charge sheet was filed before the

Judicial Magistrate First Class, Nagod, District Satna and a case, i.e. RCT No. 583/2021 was registered and the proceeding of confiscation for the vehicle bearing registration No.CG-13-Y-5197 was initiated against the petitioner. An application for release of the vehicle confiscated was made on behalf of the petitioner but that application was rejected by order dated 08.12.2021.

The petitioner preferred a revision under Section 397/399 of the Code of Criminal Procedure against the order dated 08.12.2021 passed by the JMFC rejecting the application filed under Section 457 of Cr.P.C. for release of the vehicle. The revision was also rejected vide order dated 14.08.2023 passed by the II Additional Sessions Judge, Nagod, District Satna. Thereafter, petitioner preferred representations before the Collector and also before the Superintendent of Police, District Satna, but the order of rejecting the revision passed by the Sessions Judge has not been assailed by the petitioner availing proper remedy available to him, although he has filed this petition under Article 226 of the Constitution of India seeking relief of release of vehicle confiscated.

Surprisingly the remedy under Article 226 of the Constitution of India is Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 9/15/2023 6:01:00 PM

not available for the petitioner to seek release of the vehicle without challenging the order passed by the competent court rejecting the revision filed under Section 397/399 of Cr.P.C.

The High Court in WP No.20381/2021-Surendra Meena vs. State of M.P. decided on 07.12.2021 has dealt with the aspect as to whether a writ petition against the order passed in a criminal revision is maintainable or not. The Court has observed that against the order of revision passed in a confiscation proceeding, petition under Section 482 of Cr.P.C. lies and the petition under Article 226 of the Constitution of India is not maintainable. The Court relying upon a decision rendered in the case of State of M.P. Vs. Uday Singh reported in AIR 2019 SC 1597 has dismissed the petition with the following observation:-

"The relevant para of the judgment rendered by Hon'ble Supreme Court in para 26 in the case of Uday Singh (Supra) wherein, it has been held as under:-

"26. Our analysis of the amendments brought by MP Act 25 of 1983 to the Indian Forest Act 1927 leads to the conclusion that specific provisions have been made for the seizure and confiscation of forest produce and of tools, boats, vehicles and articles used in the commission of offences. Upon a seizure under Section 52(1), the

officer effecting the seizure has to either produce the property 27 Writ Petition No 18818 of 2017 decided on 15 February 2018 before the Authorised Officer or to make a report of the seizure under sub-

section (2) of Section 52. Upon being satisfied that a forest offence has been committed, the Authorised Officer is empowered, for

Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 9/15/2023 6:01:00 PM

reasons to be recorded, to confiscate the forest produce together with the tools, vehicles, boats and articles used in its commission.

Before confiscating any property under sub-section (3), the Authorised Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. Where it is intended to immediately launch a criminal proceeding, a report of the seizure is made to the Magistrate having jurisdiction to try the offence. The order of confiscation under Section 52(3) is subject to an appeal under Section 52-A and a revision under Section 52-B. Sub- section (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the CrPC and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate under sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (under Sections 52, 52- A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub- section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized under Section 52, as provided in Section 61. Hence, Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 9/15/2023 6:01:00 PM

upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 of the CrPC, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction under Section 451 of the CrPC was not available to the Magistrate, once the Authorised Officer initiated confiscation proceedings.

27. The Madhya Pradesh amendments to the Indian Forest Act 1927 are infused with a salutary public purpose. Protection of forests against depredation is a constitutionally mandated goal exemplified by Article 48A 28 of the Directive Principles and the Fundamental Duty of every citizen incorporated in Article 51A(g)29. By isolating the confiscation of forest produce and the instruments utilised for the commission of an offence from criminal trials, the legislature intended to ensure that confiscation is an effective deterrent. The absence of effective deterrence was considered by the Legislature to be a deficiency in the legal regime. The state amendment has sought to overcome that deficiency by imposing stringent deterrents against activities which threaten the pristine existence of forests in Madhya Pradesh. As an effective tool for protecting and preserving environment, these provisions must receive

Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 9/15/2023 6:01:00 PM

a purposive interpretation."

In such circumstances, the order impugned has rightly been passed. The same does not call for any interference in the petition under Article 226 of the Constitution of India.

Even otherwise, the order impugned is passed in criminal proceeding under Section 482 of Cr.P.C. against the order passed in criminal revision. In such circumstances also, the impugned order passed by the authorities is just and proper and does not call for any interference in the present writ petition."

Thus, in view of the above and taking note of the order passed by this Court in the case of Surendra Meena (supra), the present petition is dismissed only the ground that the petitioner has not challenged the order passed by the competent court rejecting the revision. However, the petitioner will be at liberty to avail appropriate remedy challenging the order of competent authority passed in revision. Unless the order is assailed by him, no order for release of the

vehicle can be granted in favour of the petitioner.

Petition is accordingly dismissed with the aforesaid liberty.

(SANJAY DWIVEDI) JUDGE RAGHVENDRA

Signature Not Verified Signed by: RAGHVENDRA SHARAN SHUKLA Signing time: 9/15/2023 6:01:00 PM