Bhagwanlal Jatav vs State of M. P. - 1995 Supreme(MP) 1254

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : Sanjay Gupta
For the Respondent: M.K. Jain

Headnote:(1) Criminal Procedure Code, 1973 – – S. 457 – – property seized by officers of the Forest Department under Wild Life (Protection) Act – – interim custody cannot be given by Magistrate till prosecution is launched.
       (2) Wild Life (protection) Act, 1972 – – S. 50 – – property seized by officers of the Forest Department – – interim custody cannot be given till prosecution is launched before the Magistrate.
        Short Note
       1. This revision has been preferred against the order dated 22.11.1994 passed by the Chief Judicial Magistrate, Shivpuri refusing to entertain application for release of the vehicle (truck) under the provisions of section 50 sub – section (1) clause (c) of the Wild Life (Protection) Act, 1972 in respect of commission of certain offence under the said Act.
       2. The petitioner alleged that his Matador (Tata 407) No. MP 08, 3649 along with the licence was seized by the authorities of the Forest Department under the provisions of Wild Life (Protection) Act, 1972. According to the allegations made against the petitioner, on 16th November, 1994 in the night the petitioner was said to have been returning from the Jungle in Shivpuri. Some unauthorised wood were found in that Matador to have been illegally kept from the forest and the same was intervened. The forest authorities had seized the woods and the vehicle obviously under section 50 sub – section (1) clause (c) of the Wild Life (Protection) Act, 1972.
       3. An application was moved before the Chief Judicial Magistrate; Shivpuri on 17th November, 1994 to release the truck. A reply was called for and the Director, Madhav Rashtriya Udyan, Shivpuri submitted his reply on 22nd of November, 1994, a copy of which is Annexure – 6. In the reply it was submitted that the vehicle was seized under the provisions of Wild Life (Protection) Amendment Act, 1991 and the same has been forfeited to the Government. According to the contention of the opposite party the vehicle has been seized and could not be released and the Chief Judicial Magistrate had no power to release the same.
       4. The Chief Judicial Magistrate held that under the Wild Life Protection Act the Court had no jurisdiction to look into the matter and refused to entertain the application for release of the truck. Aggrieved by this order the present revision has been filed.
       5. I have heard Shri Sanjay Gupta, learned counsel for the petitioner and Shri M.K. Jain, learned Deputy Government Advocate for the opposite party/State and examined the record.
       6. Learned counsel for the petitioner referred to the provisions of section 50 sub – section (2) of the Wild Life (Protection) Act, 1972 which is quoted below: –
       "Any officer of a rank not inferior to that of an Assistant Director of Wild Life Protection or Wild Life Warden, who or whose subordinate, has seized any trap, tool, vehicle, vessel or weapon under clause (c) of sub – section (1), may release the same, on the execution by the owner thereof of a bound 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."
       7. Learned counsel for the petitioner urged that when the vehicle could be released by the forest authorities with purpose to ensure its production before the Magistrate who was empowered to try the offence under the Act, then why the Magistrate could not release the same having taken cognizance of the matter. For taking cognizance provisions have been made under section 55 of Wild Life (Protection) Act, 1972 which are quoted below: –
       “55. Cognizance of offence – No Count shall take cognizance of any offence against this Act except on the complaint of the Chief Wild Life Warden or such other officer as the State Government may authorise in this behalf."
       8. On the strength of section 55 it was contended that unless a complaint was filed by the authorised person before the Magistrate, the Magistrate was not empowered to take cognizance and if he has not taken cognizance, he could not pass any order for release of the vehicle or to entertain any application on that behalf.
       9. On the other hand, learned counsel for the petitioner relied on the case of Jahangir Guli Khan v. State of Madhya Pradesh reported in 1988 Cr.LJ. page 1889 in which it was held that the Magistrate had jurisdiction to pass orders even though cognizance on a complaint has not been taken. Reference was also made to the cases of 1985 M.P.W.N. 44 and 1979 M.P.W.N. 165.
       10. The judgment referred above was delivered by a Single Judge holding that the Magistrate had jurisdiction to pass orders even though cognizance on a complaint was not taken for the offence alleged under the Wild Life (Protection) Act.
       11. But, a Division Bench of this Court in the case of Babulal Lodhi v. State of M.P. reported in 1987 JLJ 423 held that the Magistrate had no jurisdiction to entertain an application for release of the vehicle seized u/S. 457 of the Code of Criminal Procedure. It was also held in this case that the seizure was made by a Range Officer of the Forest Department under the Wild Life (Protection) Act who had not authority to launch a prosecution and, therefore, since it was not a seizure by a police officer, the provisions of section 457 of the Code of Criminal Procedure are not attracted. In such a case when the seizure is not made by a police officer, the Magistrate cannot entertain an application u/S. 457 of the Code of Criminal Procedure to release the vehicle seized.
       12. In the present case, so far, no prosecution has been launched under the Wild Life (Protection) Act. Simply, the vehicle has been seized. Unless the prosecution is launched for the offence alleged to have been committed by the petitioner, the provisions of section 457 of the Code of Criminal Procedure are not attracted.
       13. As such, in these circumstances, the learned Chief Judicial Magistrate was justified in refusing to entertain the application under section 457 of the Code of Criminal Procedure on the strength of the Division Bench case, referred above.
       14. The petitioner will be entitled to move an application for release of the vehicle, only when the prosecution has been launched for the offence alleged and the Magistrate concerned had taken cognizance of the same. As such, at this stage, since no prosecution has been launched against the petitioner for the alleged offence, the application under section 457 of the Code of Criminal Procedure was rightly refused to be entertained by the Chief Judicial Magistrate, Shivpuri. There is no reason to interfere with the order passed by the learned Magistrate.
       15. The petitioner, if so advised, may make a representation before the State Government for release of the vehicle under the provisions of the Wild Life (Protection) Act and Rules.
       16. So far as this revision is concerned, it is not maintainable and it is dismissed.