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2010 DIGILAW 684 (JHR)

Beni Madho Singh v. State Of Jharkhand

2010-06-29

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J. Despite valid service of notice upon the Opposite Party No. 2, he has failed to appear either in person or through lawyer. The counsel for the State however is present. 2. Heard counsel for the petitioners and counsel for the State. 3. The petitioners, who are the forest officials have filed the instant application praying for quashing the order of cognizance as also the entire criminal prosecution which has been initiated against them following the impugned order of cognizance, for the offence under Sections 384, 420, 424, 426, 427, 120B and 149 of the Indian Penal Code. 4. The brief facts of the case are as follows: The Opposite Party No. 2 filed a complaint petition before the court below on 02.07.2005 against the present petitioners on the allegations that the accused persons, being the forest officials, had illegally restrained the Tractor belonging to the complainant and the witnesses while the Khair wood obtained from the trees which were standing within the personal lands of the complainant and the witnesses, was being transported. Allegations of illegal detention of the vehicle of the complainant and the witnesses and of extortion were made against the accused persons by the complainant. On the basis of the averments contained in the complaint petition as also the statements of the complainant and the witnesses recorded on solemn affirmation, the learned Magistrate took cognizance for the aforementioned offence against the accused persons namely the present petitioners by his order dated 03.12.2005. 5. Assailing the order of cognizance and the very initiation and continuation of the criminal prosecution against the petitioners, learned Counsel for the petitioners raises the following grounds: (i) That false allegations have been made in the complaint petition deliberately with an intent to harass the petitioners by way of malicious prosecution and by way of revengeful motive and by suppressing material facts before the court below and thereby abusing the process of court. Learned Counsel for the petitioners explains that the Tractor carrying Khair wood was intercepted within the protected forest area and it was found by the forest officials that the Khair wood was illegally transported on the vehicle by the complainant and the said witnesses without any prior permission. Learned Counsel for the petitioners explains that the Tractor carrying Khair wood was intercepted within the protected forest area and it was found by the forest officials that the Khair wood was illegally transported on the vehicle by the complainant and the said witnesses without any prior permission. Such acts being acts of offence punishable under the provisions of the Indian Forest Act, the Tractor along with the Khair wood was detained and a case was registered against the owner of the Tractor and others, including the complainant of the present case on 16.06.2005. Subsequently, on 19.07.2005, the accused persons of the aforementioned case, namely the present complainant and his witnesses had pleaded guilty to the charges and had deposited the amount of fine as imposed against them on 19.07.2005 itself. Yet, by suppressing these facts, the Opposite Party No. 2 had filed the complaint petition before the court below on 02.07.2005 not only suppressing the material facts in the complaint petition but also suppressing the same in his statement recorded on solemn affirmation in course of enquiry conducted by the learned Magistrate. Learned Counsel argues that the aforesaid facts would amply demonstrate that the criminal prosecution initiated against the present petitioners, is totally malicious and intended to harass the petitioners. It is further argued that the petitioners happen to be public servants and the alleged acts of offence as levelled against them by the complainant in the complaint petition, do apparently suggest acts performed in discharge of their official duties and for prosecuting the petitioners for such alleged offences, prior sanction under the provisions of Section 197 Cr.P.C. ought to have been taken. The order of cognizance without obtaining the sanction order under the provisions of Section 197 Cr.P.C., for prosecuting the petitioners, is therefore bad in law. 6. Learned Counsel for the State submits, on the other hand, that from verification of the records it does transpire that prior to the registration of the complaint case filed by the Opposite Party No. 2, a case was already registered against the complainant and other accused persons on 16.06.2005 for the offences under the provisions of the Indian Forest Act and the accused persons of the said case, on their pleading guilty, were fined and they had deposited the amount of fine on 19.07.2005 itself. 7. 7. Upon hearing the learned Counsel for the petitioners and learned Counsel for the State and on going through the materials available on record including the impugned order of cognizance, I find that the complainant has suppressed the fact that a case for the offence under the Indian Forest Act was registered against him and the witnesses, by the forest officials on 16.06.2005 when a Tractor carrying Khair wood was intercepted and detained in the forest area. The complainant and his witnesses appear also to have suppressed the fact that in the case instituted against them for the offences under the Indian Forest Act, they had pleaded guilty and consequently they were directed to pay fine and they had deposited the amount of fine whereafter the case registered against them was dropped. Furthermore, it appears that the act of detaining the Tractor and seizing the vehicle along with Khair wood loaded on it, was done in discharge of the official duties of the petitioners all of whom happen to be the forest officials and they being public servant, are therefore entitled to the protection as envisaged under the provisions of Section 197 of the Cr.P.C. 8. From the perusal of the impugned order of cognizance, I find that the court below has passed the order of cognizance on the basis of the allegations contained in the complaint petition and the statement of the complainant and the witnesses. However, the fact remains that the order of cognizance has been obtained by the complainant against the petitioners by suppressing the material facts before the court below. The learned court below also appears to have ignored the fact that the allegations against the petitioners have been made in respect of certain acts which admittedly was purportedly committed in discharge of their official duties and the petitioners being public servants, the sanction as per the provisions of Section 197 Cr.P.C. for their prosecution, was necessary and yet, the same was not obtained. 9. I am satisfied from the facts of the case that the criminal prosecution initiated against the petitioners is certainly malicious and abuse of the process of the court and cannot be allowed to continue against the petitioners. 10. There being merit in this application, the same is allowed. 9. I am satisfied from the facts of the case that the criminal prosecution initiated against the petitioners is certainly malicious and abuse of the process of the court and cannot be allowed to continue against the petitioners. 10. There being merit in this application, the same is allowed. The impugned order of cognizance and the entire criminal prosecution initiated and pending against the petitioners before the court below following the impugned order of cognizance is hereby quashed. Application allowed.