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Gauhati High Court · body

1989 DIGILAW 134 (GAU)

Birendra Mohan Das v. MD. Rafiquddin Barbhuyan

1989-07-18

Y.IBOTOMBI SINGH

body1989
This application under section 401/482 of the Code of Criminal Procedure so directed against the orders dated 15.7.82- and 3.11.82 passed by the learned Judicial Magistrate in C, R. Case No. 5362/82. 2. The petitioner Birendra Mohan Das who is the Forest Beat Officer, Kathiatoli Beat Office seized one elephant on 2. 7. 82 at about 4-45 P.M. from the Doboca Reserve Forest by preparing a seizure memo. On the same day, as directed by the Assistant Conservator of Forest at Kathiatoli he petitioner informed the Divisional Forest Officer, Nagaon Division about (he seizure of the elephant On the same day, the matter was referred to the Deputy Commissioner, Nagaon. On the basis of the report submitted by she petitioner on 2.7.82 the Divisional Forest Officer reported the matter lo the Additional Chief Conservator of Forest and Chief Wild Life Warden, Assam Gauhati and thereafter on 15th July, 1982 the Divisional Forest Officer issued a claimant notice. On 14.7.82 some police personnel came to the house of the petitioner and searched his house on the strength of a search warrant issued by the Judicial Magistrate, Nagaon. The petitioner came to know that the opposite party namely Rafiquddin Barbhuyan made a wiitten complaint to the Judicial Magistrate against him and Shri Pusha Borah, Assistant Conservator of Forest alleging interalia that on 2. 7. 82 the petitioner along with some other persons stealthily took away his elephant while the elephant was grazing in Ahutoli Forest Reserve and kept the same in the Gorajan Reserve Forest under Rupahi Police Station. He also came to know that on the basis of the allegations made in the complaint petition and the statements of the three witnesses of the complaint and the Judicial Magistrate registered a case under section 379/411 IPO against him. The petitioner also came to know that the learned Magistrate passed an order for issuing process against him and also that the learned Magistrate passed an order for giving custody of the said elephant in favour of the complainant. Being aggrieved by the said order of the learned Judicial Magistrate, the petitioner has filed the present petition for quashing the said proceeding in so far as the issue of process against him is concerned. 3. Being aggrieved by the said order of the learned Judicial Magistrate, the petitioner has filed the present petition for quashing the said proceeding in so far as the issue of process against him is concerned. 3. Shri Z. Kamar the learned counsel for the petitioner has vehemently urged that the learned Judicial Magistrate erred in law in passing the impugned orders inasmuch as the materials on records do not disclose any case against the petitioner. Before proceeding to the considerations of the prints raised by the learned counsel for the petitioner I consider it just and proper to set out the relevant provisions of law bearing on those points. 4. Section 378 1PC defines theft as follows ;- ''Whoever, intending to take dishonestly any movable property out of the possession of any person without tint parson's consent, moves that property in order to such taking, is said to commit theft." From a plain reading of the above lines it is crystal clear that the following ingredients arc necessary to establish theft. (i) moving, (ji) the movable property, (iii) in the possession of another (iv) without his consent, and (v) with dishonest intention, 5. There is no dispute that the elephant in question was seized by the petitioner by preparing a seizure memo from the Purest reserve. Again there is also no dispute that on the very date of the seizure of the elephant, the petitioner reported the matter to the Assistant Conservator of Forest and the Deputy Commissioner, Nagaon. Likewise, there is no dispute that the 1 petitioner reported the matter to the Divisional Forest Officer, Nagaon and the Additional Chief Conservator of Forest. The fact that the petitioner reported the matter to his superior officers on the date of the seizure of The elephant is proved beyond doubt by Annexure 1.2,3 and 4, Again, as can be seen from Annexure 4 the Divisional Forest Officer, Nagaon had already issued a claimant notice. Now, if the petitioner seized the elephant in question with dishonest intention there was no reason why he should report the matter to his superior officers on the date of seizure of the elephant. A person can be said to have been dishonest intention only if in taking or keeping property his intention is to cause wrongful gain by unlawful means of property to which the person so losing is legally entitled. A person can be said to have been dishonest intention only if in taking or keeping property his intention is to cause wrongful gain by unlawful means of property to which the person so losing is legally entitled. In the case in hand, the petitioner had nothing to gain by seizing the said elephant. Again as discussed above the elephant was legally seized by the accused as the elephant was found grazing within the Reserve Forest. Therefore, it cannot be said that the petitioner seized the elephant in question with dishonest intention. Hence, one of the most important ingredient to constitute the offence under section 411 is wanting in the present case. There is, therefore, no doubt that the learned Judicial Magistrate committed an error in registering a case against the petitioner and also in issuing the process against him. 6. The next contention of the learned counsel is that the petitioner seized the elephant in question, while discharging his duty as a Forest Beat Officer. As stated above the elephant was seized from the Forest Reserve. 'i he complainant in his complaint petition categorically stated that the accused - appellant seized the elephant from Doboka Reserve Forest lying in the district of Nagaon while the elephant was grazing in the said area. In Chapter IX of Assam Forest Regulation, 1891 cattle trespassing in a reserved forest or in a village forest shall b deemed to be cattle doing damage to a public plantation within the meaning of section 11 of the Cattle Trespass Act, 1871 (1 of 1871), and may be seized and impounded as such by any Forest Officer or Police Officer. Therefore, the petitioner being a Forest Officer was entitled to seize the elephant. There is, therefore, no doubt that the petitioner seized the elephant while discharging his duty as a Forest Officer. It is the case of the petitioner that since he seized the elephant while discharging his duty as Forest Officer sanction for prosecuting him under section 379/411 IPC is necessary. I find force in this contention of the learned counsel. Point is, whether the order passed by the learned Judicial Magistrate is liable to be quashed on the above point. It is the case of the petitioner that since he seized the elephant while discharging his duty as Forest Officer sanction for prosecuting him under section 379/411 IPC is necessary. I find force in this contention of the learned counsel. Point is, whether the order passed by the learned Judicial Magistrate is liable to be quashed on the above point. On this point, the learned counsel has drawn my attention to the case of Smt. Nagawa, vs. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1647 and the case of R. P. Kapur vs. State of Punjab, AIR Supreme Court 866. In the former case, it was tersely held that in the following case the order of the Magistrate issuing process against the accused can be quashed or set-aside:- "Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely on case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; Where the complaint suffers from fundamental legal defects, such as want of sanction, or absence of a complaint by legally competent authority and the like." In the second case also it was held that the High Court can quash the order by invoking its inherent jurisdiction if the order manifestly appears that there is a legal bar against the institution or continuance of the criminal, proceeding in respect of the offence alleged. Now, as discussed above one of the most important ingredients i. e. dishonest intention to constitute the offence under section 411 is wanting in the present case. Again, there is a sanction for prosecuting the petitioner issued by any competent authority. Therefore, by applying the principles of law formulated in the said cases I hold that this Court has jurisdiction to quash tie impugned orders in so far as the issue of process against the petitioner is concerned. For these reasons the petition is allowed and the impugned orders in so far as the issue of process against the petitions is concerned is set aside. The entire proceeding in C.R.Case No. 5362/82 of the Court of Judicial Magistrate, Nagaon is also quashed.