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2013 DIGILAW 174 (BOM)

Deepak Ramdeo Jaiswal v. State of Maharashtra

2013-01-22

M.L.TAHALIYANI

body2013
JUDGMENT 1. Heard learned Counsel Mr. P.N. Mehta for the petitioners and learned Counsel Mr. S.R. Deshpande for the respondent. 2. Rule. Rule returnable forthwith by consent of learned Counsel for the parties. 3. The petitioners have been charge-sheeted by the Forest Department of Amgaon Range for the offences punishable under Sections 33 and 63 of the Indian Forest Act. Section 52 of the Indian Forest Act obviously has been wrongly applied as the same is not punishing section. 4. The grievance of the petitioners is that no case at all of any nature punishable under Section 63 of the Indian Forest Act was made out against the petitioners and other accused. Section 63 of the Indian Forest Act has been added only with a few to bring the charge-sheet within limitation period. At this stage, it may be noted here that the substantive punishment for the offence punishable under Section 33 of the Indian Forest Act is one year. The substantive punishment for the offence punishable under Section 63 of the Indian Forest Act is three years. 5. I have gone through the impugned order. Before I go through the merits of the case, it may be noted here that the petitioners had made application before the learned trial Magistrate for discharge even before filing of the charge-sheet. The application was kept pending as the charge-sheet had not been filed. The said application has been decided after filing of the charge-sheet. The impugned order has been passed below the said application. 6. In the first place, it may be noted here that there was no occasion for the petitioners to file application for discharge as the charge-sheet had not been filed till then. However, since the application has been considered by the learned Magistrate after filing of the charge-sheet, let us assume that the application made by the petitioners was for discharge of the offences with which they were charged in the charge-sheet. The learned Magistrate has rejected the application mainly on the ground that the charge-sheet was filed within limitation. The grievance of the petitioners is that Section 63 of the Indian Forest Act has been mischievously applied to bring the case within limitation period. The learned Magistrate has not considered this contention of the learned counsel for the petitioners. The learned Magistrate has rejected the application mainly on the ground that the charge-sheet was filed within limitation. The grievance of the petitioners is that Section 63 of the Indian Forest Act has been mischievously applied to bring the case within limitation period. The learned Magistrate has not considered this contention of the learned counsel for the petitioners. The learned Magistrate has not taken into consideration as to whether the material before him made out a case for the offence punishable under Section 63 of the Indian Forest Act. It appears from the impugned order that the cognizance of the offence punishable under Section 63 of the Indian Forest Act was taken by the predecessor of the learned Magistrate who has passed the impugned order. In any event, the learned Magistrate was not prevented from considering the application of the petitioners for discharge under Section 245(2) of the Criminal Procedure Code. It was not necessary for the learned trial Magistrate to wait for recording of the evidence if the charge appeared to be groundless. Section 245 (2) of the Criminal Procedure Code empowers the trial Court to discharge the accused in a case instituted upon a private complaint even before recording of the evidence if the Magistrate comes to the conclusion that the charge is groundless. As already stated, this aspect of the case has not been considered by the learned Magistrate. If the respondent/Forest Department are unable to show that there was material for the offence punishable under Section 63 of the Indian Forest Act, the petitioners will be entitled for discharge under Section 245(2) of the Criminal Procedure Code. Once there is discharge of the petitioners from the offence punishable under Section 63 of the Indian Forest Act, the charge-sheet filed by the Forest Department will be beyond limitation period. As such the order passed by the learned Magistrate without considering the prayer of the petitioners under Section 245(2) of the Criminal Procedure Code will have to be set aside. It follows that the order passed by the learned Sessions Judge dismissing the revision petition will have to be set aside. The petitioners will be at liberty to file fresh application raising all the issues including additional issues, if any, in the said application. The learned trial Magistrate will have to decide the said application afresh on the basis of submissions made by the petitioners. The petitioners will be at liberty to file fresh application raising all the issues including additional issues, if any, in the said application. The learned trial Magistrate will have to decide the said application afresh on the basis of submissions made by the petitioners. In view thereof, I pass the following order. The impugned order passed by the learned Sessions Judge on 5th April, 2011 in Revision Application No.35/2010 is quashed and set aside. The order passed by the Judicial Magistrate First Class on 17th April, 2010 below the application of the petitioners for discharge is also set aside. The petitioners are at liberty to move fresh application for discharge under Section 245(2) of the Criminal Procedure Code, or any other provisions of the Criminal Procedure Code and they are also at liberty to raise the issue of limitation in view of the fact that the offence punishable under Section 33 of the Indian Forest Act attracts only one year punishment. The petitioners are at liberty to raise any other issue, which may be relevant to the facts of the case. The learned trial Magistrate is directed to decide the said application without being influenced by the observations made by the learned Sessions Judge in Revision Application No.35/2010 or the observations made by this Court in the present order. The parties are directed to appear before the learned Magistrate on 12th February, 2013. Rule is made absolute in above terms.