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Judgment
These two revision cases - One filed by the accused and the other filed by the Public Prosecutor - arise out of the same judgment of the First Additional Sessions Judge, Kurnool. While the accused-petitioner in his revision contends that the direction given by the lower court to pay a sum of Rs. 6,800/- which is four times the value of the forest produce, is unwarranted, the contention of the learned Public Prosecutor in the other revision is that the First Additional Sessions Judge has no jurisdiction to entertain the appeal preferred by the accused as a criminal appeal and that as per the provisions of S. 44(2-E) of the Andhra Pradesh Forest Act, 1967 it is only to the "District Court" an appeal can be preferred which is of civil nature, and therefore, according to the learned Public Prosecutor, neither the criminal appeal filed by the accused before the First Additional Sessions Judge, Kurnool, nor the present revision of the accused to this court is maintainable.
To appreciate the contentions in both the revisions it is necessary to state the relevant facts. The accused-petitioner is the owner of the tractor bearing registration No. AAQ 210. On 6-9-1981 at about 1.00 p.m. the accused petitioner who is a resident of Muthylapadu took his wife to Allagadda for treatment and before going to Allagadda he instructed his driver to go to Chagalamarri and get diesel. While the driver was taking the tractor to Chagalamarri one Topi Basha requested the driver to transport his forest produce. Though initially the driver resisted, later he yielded and transported the forest produce known as "Tellapaliki" in the trailer. At about 6.30 p.m. the Divisional Forest Officer (Flying Squad Party), Kurnool, along with his staff intercepted the tractor-cum-trailer in the presence of the Panchayatdars, unloaded the forest produce and seized the produce as well as the tractor and the trailer. Since the forest produce is subject to speedy decay it was sold in public auction for Rs. 1,700/-. The Authorised Officer issued notices under S. 44(2-B) of the A.P. Forest Act to the owner of the tractor, to the driver and to Topi Basha and after enquiry ordered that the tractor and trailer are liable to be confiscated. As against the said order, the petitioner, who is the owner preferred an appeal to the Sessions Court which was numbered as Criminal Appeal No. 155 of 1982 and the same was made over to the First Additional Sessions Judge, Kurnool, who passed the impugned order. No objection was taken before the learned First Additional Sessions Judge as to the jurisdiction. But it is not in dispute that the appeal was filed before the Court of the Principal Sessions Judge, Kurnool, as a criminal appeal under S. 44(2-E) of the A.P. Forest Act. Now it is necessary to refer to the relevant provisions of S. 44 of the A.P. Forest Act, 1967 (hereinafter referred to as "the Act").
"44. Seizure of property liable to confiscation and produce thereupon"
(1) ** ** ** ** **
(2) ** ** ** ** **
(2-A) where an authorised officer seizes under sub-section (1) any timber of forest produce or where any such timber or forest produce is produced before him under sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof he may order confiscation of the timber or forest produce seized or produced together with all tools, ropes, chains, boats or vehicles used in committing such offence.
(2-B) Any Forest Officer not below the rank of a Conservator of Forest empowered by the Government in this behalf by notification, may within thirty days from the date of the order of the authorised officer under sub-section (2-A) either suo motu or on application call for to examine the record of the order and may make such enquiry or cause such enquiry to be made and pass such orders as he may think fit.
Provided that no order prejudicial to any person shall be passed without giving an opportunity of being heard.
(2-E) Any person aggrieved by an order passed under sub-section (2-A) or sub-section (2-B) may within thirty days from the date of communication to him of such order, appeal to the District Court having jurisdiction over the area in which the property has been seized and the District Court shall after giving an opportunity to the parties to be heard, pass such order as it may think fit and the order of the District Court so passed shall be final."
It can be seen that S. 44(2-E) provides for an appeal by any person aggrieved by an order passed either under sub-section (2-A) or sub-section (2-D) ordering confiscation, within thirty days from the date of communication of such order, to the "District Court" having jurisdiction over the area and the "District Court" shall after giving an opportunity to the parties of being heard, pass such order as it may think fit and the order of the district Court shall be final.
Now the question is what is the meaning to be given to the expression "District Court". In the A.P. Forest Act "District Court", is not defined. S. 3 of the Evidence Act gives an inclusive definition of "Court" as to include all judges and Magistrates and all persons except arbitrators, legally authorised to take evidence. In the General Clauses Act of 1897 "District Judge" is defined as to mean the judge of a principal Civil Court of original jurisdiction, but shall not include a High Court .......... Art. 236 of the Constitution of India lays down that the expression "District Judge" includes Judge of a City Civil Court, Additional District Judge, Additional Sessions Judge, etc. For the purpose of the present case it may not be necessary to go deep into the question how far "District Judge" includes an "Additional District Judge" with reference to certain Acts where a question of persons designate comes. But it is very much relevant to note that the words "District Court" are used in sub-section (2-E) of S. 44 of the Act, and therefore, the meaning given to the words "District Judge" in some of these enactments may not be of much use, for we have to find out the meaning of expression "District Court" as used in the context by the Legislature. The Andhra Pradesh Civil Courts Act, 1972 is enacted to consolidate and amend the law relating to the Civil Courts subordinate to the High Court in the State of Andhra Pradesh. Part II of the said Act deals with the establishment and constitution of courts for the cities of Hyderabad and Secunderabad and for the remaining area of the District of Hyderabad. Part III provides for the establishment and constitution of courts in districts other than the District of Hyderabad. S. 10 of the A.P. Civil Courts Act, 1972 reads as under :
"10(1) The Government may, after consultation with the High Court, by a notification, establish such number of District Courts as they may been necessary and appoint a District Judge for each District Court".
S. 11(1) provides for the appointment of Additional District Judges; Therefore, from S. 10 of the A.P. Civil Courts Act what we gather is that the Government, after consultation with the High Court, may establish "District Courts" and appoint a "District Judge" for each "District Court". So, "District Court" is one which is established by the Government after consultation with the High Court, and to each such "District Court" a "District Judge", and if necessary "Additional District Judges" are appointed.
The words "Districts Court" are also used in S. 13 of the A.P. Forest Act. S. 13 of the Act reads thus :-
"13. Appeals from the orders of Forest Settlement Officer : (1) Where a claim is rejected wholly or in part the claimant may, within ninety days from the date of the order under sub-section (1) of S. 19 and within sixty days from the date of the order under sub-section (1) of S. 11 prefer an appeal to the District Court having jurisdiction in respect of such rejection only.
(2) Where a claim is admitted under S. 10 or S. 11 in the first instance wholly or in part and where such claim does not relate to the acquisition of any land under the Land Acquisition Act, 1894, a like appeal, subject to the same period of limitation and subject to the same period of limitation and subject to the same conditions, may be preferred to the District Court having jurisdiction on behalf of the Government by the Forest Officer or other person, generally or specially empowered by the Government in this behalf.
(3) Every order passed in appeal under this section shall be final.
(4) Where the District Court on appeal decides that the claim or such part thereof as has been rejected should be admitted, the Forest Settlement Officer shall proceed to deal with it in like manner as if it has been in the first instance admitted by himself."
It can be seen that in sub-sections (1), (2) and (4) of S. 13 of the Act the words "District Court" are used. In Sastry v. District Forest Officer, 1980 (1) APLJ 53 a question arose whether an order passed by the District Judge in an appeal preferred under S. 13 of the Act is one passed in his capacity as District Judge of the District Court, or as Persona Designata. This court held that the District Judge while exercising the power conferred on him under S. 13 for disposing of the appeals exercises the powers of a Civil Court, but does not act as persona designata either for entertaining or for disposing of the appeals preferred as against the orders passed under S. 10 or under S. 11, and therefore any such order passed will be amenable to the revisional jurisdiction of the High Court under S. 115 C.P.C. The learned Additional Public Prosecutor relying very much on this decision submits that the order passed under S. 44(2E) of the Act by the "District Judge" is also one of civil nature inasmuch as S. 44(2E) only lays down that an appeal lies to the"District Court", and according to the learned Additional Public Prosecutor, such a Court is presided over only by the District Judge and an order passed by him can be only of civil nature. I am unable to agree. As already mentioned, Art. 236 of the Constitution expands the definition of "District Judge" and the expression includes "Sessions Judge" and "Additional Sessions Judge". Therefore, the important test is whether the Presiding Officer of the District Court, who is the District Judge-cum-Sessions Judge, has exercised his power on the civil side or the criminal side. Under S. 13 of the Act it is obvious that the order passed by the District Judge is purely of civil nature. But the same cannot be said about an order passed by him under S. 44. Chapter VII in which S. 44 occurs deals with penalties and procedure. S. 44(1) provides for seizure of forest produce as well as the tools, weapons, vehicles, etc. used in committing any such offence, under sub-sec (2-A) of S. 44 the authorised officer, after giving an opportunity, can order confiscation of the forest produce so seized together with the tools, ropes, chains, boats or vehicles used in committing the offence. Under sub-section (2B) the Divisional Forest Officer also can exercise his power and order confiscation. It is against the orders under sub-secs. (2-A) and (2-B) an appeal is provided to the "District Court". At this juncture it becomes necessary to refer to some of the provisions of the Cr.P.C. Chapter II of the Cr.P.C. deals with the constitution of criminal courts and S. 6 classifies the Criminal Courts and Court of Session is one such court. S. 7(1), Cr.P.C. reads thus :
7(1) Every State shall be a sessions division or shall consist of sessions divisions, and every sessions division shall, for the purposes of this Code, be a district or consist of districts; Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district".
7(4) The Sessions Divisions, district and sub-divisions existing in a State at the commencement of this Code, shall be deemed to have been formed under this section."
S. 9 Cr.P.C. again reads thus :
9(1) The State Government shall establish a Court of Session for every Sessions Division.
9(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a court of session.
(4) to (6) xx xx
From a combined reading of the provisions of the provisions of the A.P. Civil Courts Act, 1972 and the above provisions of the Cr.P.C. along with Art. 236 of the Constitution of India, it becomes clear that for every District there will be a court called "District Court" which shall be presided over by a District Judge and the Government also establishes in the State several Sessions Divisions and normally for every district there will be a Sessions Division. Such a "District Court" is also called "Court of Session" and the presiding officer is known as "District and Sessions Judge" and he exercises powers both civil and criminal. The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in the Court of Session. Under certain enactments the same District and Sessions Judge or the Additional District and Sessions Judge is also appointed as a persona designata, in which case he will be disposing of these matters only as persona designata and that may be civil or criminal as the case may be. In The Public Prosecutor Vs. Legisetty Ramayya and Another, a question arose whether a District and Sessions Judge, who is the judicial authority acting under s. 6C of the Essential Commodities Act, is a persona designata, or whether the District and Sessions Judge is an inferior criminal court and therefore whether a revision is maintainable under S. 435 or 439 Cr.P.C. to the High Court The Full Bench case held thus :
"Therefore, if the expression ''The District and Sessions Judge of each District'' which is a Judicial Authority appointed by the Government of Andhra Pradesh as the ''Judicial Authority'' as provided under S. 6C of the Essential Commodities Act can be referred to a ''Court'' there will not be much difficulty because as per the principle just mentioned above, the matter would be determined by the Court as a court and all the incidents including the incident of being liable to revision under Sections 435 and 439 Cr.P.C. if the District and Sessions Judge acts as a court of Session would follow".
I am referring to this decision only to point out that much depends upon the nature of the powers exercised by the Presiding Officer who is conferred with both civil and criminal powers. In Dirji v. Goalin, AIR 1941 Pat 65, a Full Bench of the Patna High Court observed that whether a particular authority is a court or not depends upon the powers conferred on him. As already mentioned, the nature of the powers exercised by the concerned authority under S. 44(2-A) and S. 44(2-B) of the Act, viz., seizure and confiscation, are definitely criminal in nature. Any appeal preferred against such an order to the "District Court" presided over by a "District and Sessions Judge" can be entertained only a criminal appeal and the principal Sessions Judge having entertained such a criminal appeal can make over the appeal to the Additional Sessions Judge about which power there cannot be any dispute. Thereupon the Additional Sessions Judge can dispose of the appeal in accordance with law as happened in the instant case. In The Public Prosecutor Vs. Legisetty Ramayya and Another, the Full Bench while considering the nature of the powers conferred under S. 6-C of the Essential Commodities Act and the contention thereupon observed as follows :
"Another contention raised is that even if the District and Sessions Judge exercises the powers under S. 6-C of the Essential Commodities Act as a Court, it cannot be said to be an inferior criminal court within the meaning of S. 435 Cr.P.C. We do not think this question can detain us for long. As already discussed above, if the District and Sessions Judge acts as a Court to hear appeals under S. 6-C it has necessarily to be as a Sessions Court as the confiscation proceedings are criminal in nature. If he acts as a Sessions court certainly it would become an inferior criminal court with regard to the High Court within the meaning of S. 435 Cr.P.C."
Therefore, in the instant case the power exercised by the Divisions Forest Officer under S. 44(2-A) of the Act is of criminal nature and the appeal filed by the petitioner accused under S. 44(2-E) against such an order can be treated only as a criminal appeal before the District and Sessions Court which has power to make over the appeal to the Additional Sessions Judge. Therefore, a revision by the petitioner-accused against the order of the Additional Sessions Judge is maintainable to this court. In this view of the matter criminal Revision Case No. 365 of 1984 filed by the Public Prosecutor is liable to be dismissed. Criminal Revision Case No. 232 of 1984.
The learned counsel for the petitioner-accused submits that the forest produce seized is only of inferior variety called "Tellapoliki" which is subject to speedy decay and the value itself is estimated to be Rs. 1,700/- and that the learned Additional Sessions Judge''s direction to pay Rs. 6,800/- i.e. four times the value of the forest produce, amounts to severe punishment. From the facts it can be seen that the owner, viz. the petitioner-accused, was not in the vehicle when it was intercepted. The record also shows that one Topi Basha was responsible for placing the forest produce in the trailer. Therefore, the extreme penalty, viz. four times of the value of the seized forest produce is unwarranted.
In the result, the order the First Additional Sessions Judge, Kurnool compounding the offence is confirmed, but the same shall be subject to the condition that the petitioner-accused paying a sun of Rs. 3,400/- which is equivalent to twice the value of the seized forest produce as compounding fee. To the extent of the reduction of compounding fee Crl.R.C. 232 of 1984 is allowed. The other Crl.R.C. 365 of 1984 filed by the public Prosecutor is dismissed.
Order accordingly.