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2010 DIGILAW 149 (JHR)

Raj Kapoor Sinha v. State of Jharkhand

2010-01-29

D.K.SINHA

body2010
JUDGMENT D.K. Sinha, J.- This Cr. Revision is directed against the order impugned dated 16.5.2009 by which the Sub-Divisional Judicial Magistrate, Porahat at Chaibasa took cognizance of the offence under Sections 379/411/465/467/468 and 120B of the Indian Penal Code arising out of Sonua P.S. Case No. 13 of 1994 corresponding to G.R. No. 149 of 1994. 2. The prosecution story in short was that the Officer-in-Charge of Sonua Police Station recorded his self-statement on 14.5.1994 near Sonua Primary Health Centre narrating, inter alia, that pursuant to a secret information that a truck was illegally carrying Kendu leaves and it was standing near Sonua Durgasthan Forest Check Post and that the forest officials were trying to get the truck released, he reached near Sonua Forest Check Post at 18.45 hours and found the truck No. BRS 3552 there and he asked the truck driver to stop. On demand, the driver Shiv Prakash Mistry presented the transit permit and on its perusal the informant found discrepancy in the entry made in the permit with that of the bundles of the Kendu leaves being carried on the said truck. According to the informant the transit permit was not even filled properly. The truck with the Kendu leaves loaded thereon was seized in presence of the witnesses including the documents produced by the driver and a seizure list was prepared, a copy of which was given to the driver of the truck No. BRS 3552. The informant specifically alleged that he found one bag of Kendu leaves extra beyond what was given in the transit permit hence he instituted a case for the alleged offence under Sections 419/420/467/468/379/411 and 120B of the Indian Penal Code against the officials of the Forest Department by giving reasonings that such occurrence was given effect to in collusion with the higher officials like Ranger and Divisional Manager of the Bihar State Forest Development Corporation. 3. The learned Counsel submitted that admittedly, the petitioner was the Divisional Manager, Bihar State Forest Development Corporation, Chaibasa and his name was given by the informant police officer without verifying the actual fact. 3. The learned Counsel submitted that admittedly, the petitioner was the Divisional Manager, Bihar State Forest Development Corporation, Chaibasa and his name was given by the informant police officer without verifying the actual fact. The learned Counsel further explained that for documental lapses/non-entry of particulars in relevant columns of the transit channel, that too by the subordinate police officers the petitioner being the Senior Forest Officer should not have been fastened with the criminal liability and that in the entire F.I.R. no overt act/participation has been attributed against the petitioner except the conjecture and surmises only because the petitioner being the Senior Forest Officer of the rank of Divisional Manager and that he ought not be vicariously liable for the act if at all done by his subordinates. The discrepancy between the actual loaded Kendu leaves and the quantity mentioned in the permit carried by the driver as alleged by the informant police officer was so negligible so that it could have been ignored and it was nowhere stated that the bags of the Kendu leaves were actually physically counted by him after unloading the bags from the truck and so the suspicion if at all raised cannot be converted into credible conclusion and authoritative finding of the informant with regard to the complicity of the petitioner who was neither the drawer of the permit nor was found at any place by the informant alleging his attribution. The Officer-in-Charge had noted in the case diary that he had intercepted the said truck after it had already been crossed Durgasthan Forest Check Post near Primary Health Centre whereas in reality the truck was seized at the check post while the documents produced by the driver of the truck were being examined by the forest guards posted at the check post and the informant police officer had given altogether a wrong statement with ulterior motive and to implicate all the forest officials of all the ranks of the Forest Department maliciously with ill-motive. 4. Finally, the learned Counsel submitted that a departmental enquiry was conducted wherein the petitioner was proceeded but he was given a clean chit as no fault was found on his part in the entire episode and his departmental proceeding was dropped by the order dated 5.9.1994. 5. 4. Finally, the learned Counsel submitted that a departmental enquiry was conducted wherein the petitioner was proceeded but he was given a clean chit as no fault was found on his part in the entire episode and his departmental proceeding was dropped by the order dated 5.9.1994. 5. Concluding his argument, learned Counsel submitted that so far as question relating to issuance of transit permit booklet was concerned, it was borne out in course of departmental enquiry that the aforesaid booklet and other booklets were issued by one Umesh Sahni, Assistant Divisional Manager, Small Forest Products Project, Chaibasa to the In charge Prakshetra Padadhikari, Chakradhharpur for distribution in the field and the petitioner being the Senior Forest Officer was not at all concerned with the entire transaction and if at all any offence was found prima facie, it could be under the Bihar Kendu Leaves (Control of Trade) Act, 1973 and all the offences made therein were bailable in nature and that the Officer-in-charge of Sonua Police Station wrongly imputed the criminal charges against the accused persons including the petitioner either under misconception or by carrying ill-will and ill-motive and in any event the petitioner could not have been held criminally liable. 6. The learned Counsel further urged that none of the offence alleged under Sections 379/411/465/467/468 and 120B of the Indian Penal Code is attracted against the petitioner who was the Divisional Manager at the relevant time in the Bihar State Forest Development Corporation. The alleged offence took place in the year 1994 but the charge-sheet was submitted after 15 years on 4.3.2009 without explanation of such inordinate delay and in course of investigation, the Investigating Officer was changed in view of his misconduct under the orders of this Court but even then no material could be collected against the petitioner. The major lacuna which went up to the route of the process of investigation was that the informant who was the Officer-in-charge of Sonua Police Station took up the investigation of the case himself against the settled principle of law and in contravention of the provisions of the Code. By doing investigation of the case as informant, he acted assuming to be the Judge of his own cause and thereby caused gross violation of natural justice. 7. On the point of maintainability the learned Counsel submitted that the Apex Court in Pepsi Foods Limited & Am. By doing investigation of the case as informant, he acted assuming to be the Judge of his own cause and thereby caused gross violation of natural justice. 7. On the point of maintainability the learned Counsel submitted that the Apex Court in Pepsi Foods Limited & Am. vs. Special Judicial Magistrate and Others, reported in,(1998)5 Supreme Court Cases 749 held that nomenclature under which petition was filed was not quite relevant and that did not debar the Court from exercising its jurisdiction which otherwise it possessed unless there was special procedure prescribed which was mandatory in nature. In that view of the matter as propounded by the Hon'ble Apex Court this Criminal Revision was maintainable against the order taking cognizance of the offence without material against the petitioner which needed interference of this Court. 8. Learned A.P.P. opposed the contention. 9. Having regard to the facts and circumstances of the case, I find substance in the argument. The informant of the case in utter violation of the principles of natural justice himself took up the investigation and recorded the statements of the witnesses. However, with the intervention of Ranchi Bench of Patna High Court the Investigating Officer was changed and it took 15 years in conclusion of investigation and in submission of charge sheet without explanation of such inordinate delay and also without materials in the case diary. No material could be shown in the case diary even prima facie to establish nexus between the petitioner Divisional Manager of the Bihar State Forest Development Corporation and the other officials of the Forest Department in doing any kind of forgery of the document when only one bag was allegedly found in excess containing Kendu leaves on the truck and that too without physical verification. The learned A.P.P. failed to show as to how the petitioner Divisional Manager a senior ranking Forest Officer of the Forest Corporation could be held criminally liable for the alleged recovery of one bag of Kendu leaves from the truck beyond the number of bags/bundles mentioned in the transit permit as he was neither the drawer of the said permit nor was in any manner responsible for loading of excess bag of Kendu leaves. The implication of the petitioner with ulterior motive therefore, prima facie, cannot be ruled out. The implication of the petitioner with ulterior motive therefore, prima facie, cannot be ruled out. I find substance that the petitioner being the Divisional Manager at the relevant time of the Corporation cannot be held criminally liable as the concept of vicarious liability is alien to the penal provisions of the Indian Penal Code. 10. In the facts and circumstances, I find that the criminal prosecution of the petitioner would tantamount to the abuse of the process of law which cannot be sustained. Accordingly, this petition is allowed and the petitioner is exonerated from his criminal liability in the instant case by relying and adopting the principles laid down in~Pepsi Food case (supra). 11. Accordingly, this petition is allowed.