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Madhya Pradesh High Court · body

2001 DIGILAW 364 (MP)

Anand Kumar Goenka v. State of M. P.

2001-04-24

S.C.PANDEY

body2001
Short Note The petitioner is aggrieved by the order dated 9.5.1997 passed by Additional Chief Judicial Magistrate, Maihar in Criminal Case No. 12/97. It appears that the Forest Range Officer, Maihar investigated the offences punishable under sections 33 and 63 of the Indian Forest Act, 1927 (for short 'the Forest Act') and the offences punishable under sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984, (for short 'the Act of 1984'). The charge-sheet against the petitioner and the other accused persons was filed in the Court of Additional Chief Judicial Magistrate, Maihar. The petitioner and the other accused persons were charged for violation of sections 33 and 63 of the Forest Act and also for violation of Rules 3 and 29 of M.P. Transit Rules framed under the Forest Act of 1927. Further the charge-sheet alleged that the petitioner has also violated the Forest (Conservation) Act. These are the forest offences which are indicated in the charge-sheet. The charge-sheet did not stop here but went ahead to state that the accused persons had committed offence under sections 3 and 4 of the Act of 1984. The petitioner and the other accused persons had filed an application under section 245 Code of Criminal Procedure claiming that the accused persons arc liable to be discharged. Their claim was two-fold. Firstly, they stated, so far as offence covered by the Act of 1984 is concerned, a forest officer has no right to investigate that offence. Secondly it was sought to be urged that the Court of Maihar had no territorial jurisdiction to try the case. It was sought to be argued that the offence had took place in Village Haraiya. However, the forest officers have tried to show that the offence took place at village Bhatura, District Satna in order to give jurisdiction to the Court at Maihar. The learned Additional Chief Judicial Magistrate rejected these contentions. Having heard counsel for the parties this Court is of the view that so far as the first objection is concerned, the Forest Officers have no power to authorise any special agency to investigate the offence committed under the Act of 1984. Sub-section 2 of section 3 of that Act provides that a minimum sentence for the offence shall be six months but it is punishable to the extent of five years and with fine. Sub-section 2 of section 3 of that Act provides that a minimum sentence for the offence shall be six months but it is punishable to the extent of five years and with fine. In other words, the Court can award a maximum sentence of five years and with fine. Section 4 of the Act covering the mischief causing damage to public property by fire or explosive substance. extends the maximum sentence to ten years with fine. Section 2(h) of the Code of Criminal Procedure reads as under: “investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person who is authorised by a Magistrate in this behalf." It is clear from the aforesaid definition of 'investigation' given in the CrPC that the investigation is to be conducted by a police officer in case the Magistrate himself does not permit it by authorising a person in this behalf. Sections 4 and 5 of the Code of Criminal Procedure read together authorises a police officer to investigate all the offences under the Indian Penal Code. We must read section 2(h) with sections 4 and 5 of the Code of Criminal Procedure. Sub-section (2) of section 4 deals with the offences covered by any law other than the penal code. It has been provided that the aforesaid offences shall be investigated according to the CrPC subject to any enactment for the time being in force. The words subject to any enactment for the time being in force referred to this context must be the Act of 1984. The Act of 1984 does not provide any procedure for investigation. Section 5 of the Code of Criminal Procedure reads as under: "5. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." Section 5 of the Code of Criminal Procedure says that ordinarily, the Code will not affect (i) any special law (See: S. 41, Penal Code); (ii) any local law (See: S. 42. Penal Code); (iii) any special jurisdiction or power and (iv) any special form of procedure. Penal Code); (iii) any special jurisdiction or power and (iv) any special form of procedure. This is subject to a rider, in absence of any specific provision to the contrary. There is no provision in the Code of Criminal Procedure to the contrary regarding investigation and filing to charge-sheet authorising a Forest Officer to investigate the offence under the Act of 1984. It, therefore, follows that so far as the offences covered by the Act of 1984 are concerned they are to be investigated in accordance with the provisions of the CrPC. It is obvious that a forest officer has no right to investigate an offence unless he is authorised by a Magistrate for this purpose. Therefore, the forest officer cannot file a charge-sheet directly in a Court of law saying that an offence has been committed under the provisions of the Act of 1984. The only remedy remains available to him is to file an application under section 200 of the Code of Criminal Procedure. However, the Forest Officer has directly filed the charge-sheet in this case. Under these circumstances, this Court is of the view that the investigation made by the Forest Officer of an offence under sections 3 and 4 of the Act of 1984 is null and void and the Magistrate is not competent to take cognizance of the offence under that Act. The order of the learned Additional Judicial Magistrate suffers from the defects that it is not clear in its conclusion. It, however, purports to say that in this case the investigation by a Forest Officer is not prohibited by the Act of 1984. He is authorised to investigate a forest offence simultaneously under the Act of the 1984, even if he is not duly authorised therefore by a Magistrate. This view is incorrect. The impugned order, however, does not deal with the other objections which have been mentioned in this revision. Since this Court is setting aside the order impugned regarding the Act of 1984, the applicant or the other accused persons may raise the objection regarding the territorial jurisdiction in the light of the decision of the Civil Court copy of which is filed alongwith this criminal revision. The Magistrate may decide the objection in accordance with law. In view of the aforesaid discussion, this revision is hereby allowed. The impugned order dated 9.5.1997 stands set aside.