POONAM SRIVASTAVA,J. - (1.) HEARD Sri B. K. Tripathi, learned Counsel for the petitioner and learned A.G.A. for the State.
(2.) THE order dated 23 -1 -2007 passed by the learned Sessions Judge, Gorakhpur in Criminal Revision No. 345 of 2006, Rasbihari Chand Yadav v. State of U.P. and order dated 14 -12 -2006 rejecting the petitioner's application for release of Tata Sumo Victa No. U.P. 53 -AB 1245 (hereinafter referred to as the disputed vehicle), are impugned in the instant writ petition. The petitioner claims himself to be the registered owner of the disputed vehicle. The registration certificate No. RC -0219163 dated 12 -5 -2006 is annexed as Annexure -1 to the writ petition. Insurance papers have also been produced in support of the petitioner's contention. The vehicle was challaned by the Station Officer Khorabar, District Gorakhpur in connection with case Crime No. 973 of 2006, under Sections 379 and 411, I.P.C. read with 26, Forest Act and 3/28, T.P. Act. The First Information Report was registered on 27 -11 -2006, a copy of the same is annexed as Annexure -2. On the date and time of the alleged incident as detailed in the First Information Report, a truck was loaded with timber which is said to be a forest produce and was taken stealthily after falling the trees of the forest. Three accused sitting on the truck were arrested on the spot. The vehicle of the petitioner was standing behind the said truck which was driven by the petitioner. The allegation of the First Information Report further shows that the petitioner, on being questioned stated that he was getting the timber loaded on the truck and, therefore, the vehicle was also taken in custody. However, no timber or any forest produce was found in the Tata Sumo Victa sought to be released. The truck and disputed vehicle was taken in custody and is standing at the police station since then. The petitioner was bailed out on the basis of an order passed by the learned Sessions Judge on 11 -12 -2006. The bail order has been brought on record as Annexure -4. Learned Counsel for the petitioner has placed the order to support his contention that the disputed vehicle was only standing behind the truck which was carrying forest produce but nothing was recovered from the petitioner who was driving the disputed vehicle and bail was granted. On the basis of these allegations, the submission is that the petitioner has nothing to do with the stolen forest produce or with the truck carrying it and, therefore, he has wrongly been challaned. An application was moved by the petitioner for release of the disputed vehicle but the Chief Judicial Magistrate rejected the application moved under Section 451, Cr.P.C. vide order dated 14 -12 -2006 which is annexed as Annexure -6. The application for release has been rejected only because it was opposed by the Assistant Prosecuting Officer. A criminal revision was preferred against the said order and the revisional Court rejected the revision on the ground that under Section 52 -D of the Indian Forest Act, it is only the State Government who has exclusive jurisdiction for release, disposal or distribution of the property (forest produce belonging to the State Government).
(3.) AFTER hearing the respective Counsel at length and going through the record, I am not in agreement with the orders passed by the Courts below. The proceeding pending before the trial Court is prosecution of the accused who had been taken into custody on the basis of the First Information Report registered at case Crime No. 973 of 2006, under Sections 379 and 411, I.P.C. read with 26, Forest Act and 3/28, T. P. Act. However, it is correct that the disputed vehicle is neither a forest produce nor any forest produce was recovered from the said vehicle, therefore, the provisions of Section 52 -D does not come into play at all. Besides, assuming that the disputed vehicle is involved in a case which relates to an offence under Section 26 of the Forest Act, even then this Court can very well exercise powers under Article 226 of the Constitution of India for release of motor vehicle or any other article.;