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2001 DIGILAW 410 (HP)

SACHIN SOOD v. STATE OF H. P.

2001-12-27

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood J. (Oral) :- This petition under Section 482 of the Code of Criminal Procedure is directed against the orders of learned Sessions Judge. Kinnaur Sessions Division at Rampur Bushahr. dated 26.3.2001 whereby the orders of learned sub Divisional Judicial Magistrate. Rampur discharging the accused were reversed. 2. In order to appreciate the controversy few fats may be noticed: 3. Petitioner Sachin Sood is son of late Sh. Ashok Kumar Sood. It appears. Ashok Kumar Sood of village and Post Office Chuhabag (Khaneri) was granted a mining lease and license for installation of a Crusher for a period of five years w.e.f. 8th September. 1994. On 10.2.1997. the Mining Officer, by a registered letter, informed Ashok Kumar Sood that in view of the interim orders of the Honble Supreme Court in T.N. Godavarman (CWP No.202 of 1995) dated 12.12.1996, the mining lease was being canceled as the area under mining lease was a forest area, 4. It is the case of the prosecution that even after the cancellation of the mining lease. Ashok Kumar Sood continued operating the crusher. Various letters were addressed to Ashok Kumar Sood by the authorities. In letter dated 16.2.98. he was informed that if he does not stop the operation of the crusher, then action against him as per law shall be taken. The Divisional Forest Officer. Rampur forest Division, wrote a letter to Ashok Kumar Sood on 29.10.1998 that as the permission for leasing the land for installation of Stone crusher has not been conveyed by the Central Govt., therefore, no crushing activity should be carried out by him. On 1.9.1998, the divisional Forest Officer, Rampur forest Division, wrote to the Superintending Engineer. H.P. State electricity Board, that various owners of the State had applied for permission from the Central Government for diversion of forest land for installation of stone crusher. The said permission was rejected in respect of two cases and permission in respect of remaining cases including that of Ashok Kumar Sood, was awaited and. therefore, operation of Crusher by the operators, without approval of the Central Government, was illegal and "no power supply should be given to any stone crusher without approval from the Central Government is obtained." The Superintending engineer further requested to disconnect the power supply to the stone crushers named therein including that of Ashok Kumar. On 29.10.1998. the Divisional Forest officer. On 29.10.1998. the Divisional Forest officer. Rampur Forest Division, addressed another letter to Ashok Kumar Sood asking him that no quarrying/stone crushing activity should be carried out on crusher site till the proper sanction is conveyed by the competent authority. He further noticec that as the stone crushing activititues were continuing, therefore, he should remove all the structures constructed on the forest land. 5. On 31st December. 1998. Range Forest Officer. Rampur Bushahr. lodged a complaint with the Police Station Rampur Bushahr. complaining that Ashok Kumar Sood. jwner of Himalyan Stone Crusher and Quarry, is carrying on crushing activities inspite of he having been asked not to do so till the proper approval is obtained from the Government of India. He accordingly requested to register a case against Ashok Kumar Sood. owner of Himalyan Stone Crusher and Quarry, for illegal running of the stone crusher and quarrying of stone from forest land. The relevant para of the complaint reads: "You are requested to register an FIR against Sh. Ashok Kumar Sood V.P.O. Chuga Bag (Khaneri) Rampur Bsr. owner of Himalayan Stone Crusher and quarry and Stone Crusher and Quarry in favour of Sh. Ashok Kumar Sood for illegal running of stone crusher and quarrying of stone from forest land by-violating the Forest Conservation Act, and Indian Forest Act and necessary legal action against the offender should be taken to protect the law. A damage report No.l dated 10.12.98 for illegal breaking of land and running of stone crusher has been issued by Sh. Prithivi Raj forest Guard Incharge Sanathli beat against Sh. Ashok Kumar Sood V.P.O. Chuha Bag (Khaneri) Rampur Bsr. Owner of Himalyan Stone Crusher and quarry and Stone Crusher and quarry in favour of Sh. Ashok Kumar Sood which is enclosed in original for necessary action." 6. Police accordingly registered a case for offences punishable under Sections 188,379 of the Indian Penal Code and 33(b) of the Indian Forest Act and Section 2 of the Forest conservation Act. 1980. against Ashok Kumar Sood. 7. It transpires that during the investigation of the case Ashok Kumar Sood died on 13.6.1999. Thereafter, police after completing the investigation filed a charge sheet against the present petitioner Sachin Sood son of Ashok Kumar Sood. Petitioner pleaded before the trial Court that he is innocent and nowhere connected with the commission of offence. 1980. against Ashok Kumar Sood. 7. It transpires that during the investigation of the case Ashok Kumar Sood died on 13.6.1999. Thereafter, police after completing the investigation filed a charge sheet against the present petitioner Sachin Sood son of Ashok Kumar Sood. Petitioner pleaded before the trial Court that he is innocent and nowhere connected with the commission of offence. Learned trial Magistrate vide its order dated 9.11.2000 took a technical view saying that as the case was filed for offence punishable under Section 188 of the Indian Penal Code, therefore in view of the provisions of Section 195(1)(a)(i)- court could not take any cognizance of the offence unless the complaint in writing was made by public servant concerned. Learned trial Magistrate observed that accused is supposed to have violated the orders of the Divisional Forest Officer whereas the complaint was not made by the Divisional Forest Officer and the police prepared the challan on the basis of the complaint of Range Forest Officer and accordingly discharged the accused. 8. Dissatisfied the State carried an appeal before the learned Sessions Judge. Rampur Bushahr. Learned Sessions Judge, vide his impugned orders held that the learned Sub Divisional Judicial magistrate had not given any reason as to how the prosecution case, under Sections 33(1)(b) of the Act. 379, EPC and 2.3-A of the Forest Conservation Act against the accused has been held to be groundless. He further noticed that the Apex Court in CWP No.202 of 1995 vide orders dated 12.12.1996 had clearly ordered that the mining activities for non forestry purpose within the forest should be stopped and inspite of this mining activities were carried out which was illegal and therefore order of the learned trial Magistrate was bad in law. 9. In the present revision petition. Mr. Kuldip Singh. Senior Advocate, assisted by Mr. Bimal gupta,. Advocate, urged that if at all any illegal activity of mining was done, it was done by the father of the petitioner, namely. Sh. Ashok Kumar Sood to whom all the notices were issued and who was the owner of Crusher and in whose favour mining lease was granted. It is urged that the present petitioner cannot be vicarously held liable, under the law. for the acts of omission and commission which might have been committed by bis father. Sh. Ashok Kumar Sood to whom all the notices were issued and who was the owner of Crusher and in whose favour mining lease was granted. It is urged that the present petitioner cannot be vicarously held liable, under the law. for the acts of omission and commission which might have been committed by bis father. It is the further case of the petitioner that there is no evidence on record to proceed against the petitioner and he has been named accused without any basis. Mr. Singh, learned Senior counsel urges that the case against the present petitioner is without foundation, therefore, the criminal proceedings against him are liable to be quashed. 10. As noticed earlier, the first Information Report does not name the petitioner. It clearly states that Ashok Kumar Sood was found to have continued with mining and crushing activities, illegally inspite of notices to him. There is no whisper that the present petitioner son of Ashok Kumar Sood was any way connected with the mining or crushing activities of Ashok Kumar Sood. Perusal of various notices and letters, which are addressed to Sh. Ashok Kumar Sood. shows that it was Ashok Kumar Sood who was asked to stop the mining and crushing activities till the government of India convey its approval under the Forest Conservation Act. The superintending engineer, State electricity Board, was asked to disconnect the electricity connection to the crusher of Ashok Kumar Sood and thereafter probably no crushing activity could have taken place. Ashok Kumar Sood expired on 13.6.1999 and was alive when connection to his crusher was disconnected. It is not the case of the prosecution that any crushing activity was continued by the petitioner after the death of his father. 11. Statements of various witnesses recorded by the Investigating Office under Section 161 of the Code of Criminal Procedure including that of Roshan Lal. Range Forest Officer. Rampur. Prem Lal Verma. Mining Guard. Roshan Lal. Block Officer. Rampur, Manmohan Singh. Assistant Mining supervisor, show that when they visited the spot they found that crushing activities were continued inspite of the orders to the contrary by the competent authority. These statements were recorded on 19.1.1999. It was only when Ashok Kumar Sood died in June. 1999. thereafter his son the present petitioner was made accused. Block Officer. Rampur, Manmohan Singh. Assistant Mining supervisor, show that when they visited the spot they found that crushing activities were continued inspite of the orders to the contrary by the competent authority. These statements were recorded on 19.1.1999. It was only when Ashok Kumar Sood died in June. 1999. thereafter his son the present petitioner was made accused. Supplementry statement under Section 161 of the Code of Criminal Procedure of Prithivi Raj was recorded on12.3.1999 wherein he stated that permission to operate the crusher by Ashok Kumar Sood was cancelled and Ashok Kumar Sood was informed about it. According to him. his son Sachin Sood was also informed but despite that crusher continued to be in operation. According to this witness, before he could each on crusher petitioner went away in his car towards Rampur. earned Law Officer fairly conceded that there is no other evidence on record to connect the accused-petitioner with running of crusher. 12. Apparent as it is. the evidence collected by the police does not connect the petitioner with the alleged crushing activity of the stone crusher. It is admitted position that permission to install the crusher was granted to Ashok Kumar Sood, father of the petitioner. This crusher was operated by Ashok Kumar Sood till his death in June, 1999. It is not even the case of the prosecution that this crusher was operated after the death of Ashok Kumar Sood. 13. In the circumstances, there is no question of the petitioner either violating the instructions of the concerned Divisional Forest Officer or Mining Officer or operating the crusher in question after withdrawal of the permission granted to his father. 14. Looking at the First Information Report and the complaint lodged with the police by the Range Forest Officer on 31st December. 1998. I find that no allegation is made against the present petitioner-accused. Thus, even if the First Information Report or complaint is taken at its face value, it does not connect the petitioner with the commission of any offence. It is pertinent to note that the complaint was lodged with the police on 13.1.1999 though the complaint is dated 31.12.1998. If the petitioner-accused was instrumental or connected with the crushing activity at the crusher of his father his name would have found mention in the complaint. 15. In State of Haryana & Ors. v. Bhajan Lal & Ors. It is pertinent to note that the complaint was lodged with the police on 13.1.1999 though the complaint is dated 31.12.1998. If the petitioner-accused was instrumental or connected with the crushing activity at the crusher of his father his name would have found mention in the complaint. 15. In State of Haryana & Ors. v. Bhajan Lal & Ors. (1992 Supp (1) SCC 335) after digesting the case law upto date it was observed that inherent powers under Section 482 of the code could be exercised to prevent abuse of the process of court or otherwise to secure the ends of justice. The apex court observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give list of myriad kinds of cases wherein such power should be exercised. However, in cases "(a) where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (b) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, powers of quashing the criminal proceedings may be exercised. 16. The Apex Court in Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. 1998 (5) SCC 749. reiterating the dicta in Bhajan Lals case observed "Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused." 17. Mr. Guleria. learned Law Officer refers to State of M.P. v. S.B. Johari & Ors. 2000 (2) SCC 57 and contends that the revisional court after having considered the material on record has found prima facie case against the accused for charge and, therefore, this court should not interfere. Mr. Guleria. learned Law Officer refers to State of M.P. v. S.B. Johari & Ors. 2000 (2) SCC 57 and contends that the revisional court after having considered the material on record has found prima facie case against the accused for charge and, therefore, this court should not interfere. I afraid that the submission has no foundation. Learned Sessions judge in his order only referred to fact that the Sub Divisional Judicial magistrate had not recorded the reasons for discharging the accused for offences punishable under Sections 33 (1)(b) of the Indian Forest Act, 379 of the Indian Penal Code and 2.3-A of the forest Conservation Act. 1980. He did not advert to the plea of the accused that he is not connected with the commission of any offence even if the prosecution case considered to be true at its face value. The ratio of this case does not help the prosecution. 18. In S.B. John it was held that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Their Lordships proceeded to observe : "The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defense evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial." (emphasis supplied) 19. As already noticed the evidence on record, even if accepted fully, does not link the accused with the commission of any offence. The petitioner infact is sought to be held vicariously liable for the act of omission and commission, if any, of his father who died during the pendency of the investigation of the case. This is not permissible. 20. Inevitable conclusion is. prosecution of the accused being bad in law is liable to be quashed. 21. In result the petition is allowed. The impugned order of the learned Sessions Judge is set asidefor the reasons recorded above. The accused is discharged.