JUDGMENT 1. - This criminal misc. petition has been filed under Section 482 Cr.P.C. for quashing FIR No.166/2014, registered at Police Station - Masalpur, Karauli for the offence under section 30/33 of the Rajasthan Forest Act, 1953 and section 2(ii) of the Forest (Conservation) Act, 1980. 2. It is stated that on information received by the police, L&T machine and Trola No. RJ 05 GA 1837 were seized by the police from forest area. They were used for excavation of mineral. On reaching the police party, persons run away. 3. It is submitted that petitioner is the registered owner of the L&T machine. The trola was purchased by him from its registered owner under agreement dated 11.3.2013. Both the vehicles were not used for taking any forest produce. The offence is not punishable beyond a period of three years thus FIR is not sustainable. The offence under sections 30 and 33 of the Forest Act is non-cognizable thus investigating agency cannot proceed with the FIR. The prayer is to drop the proceedings by quashing FIR. 4. Be that as it may, FIR has been registered for offence under sections 30 and 33 of the Act of 1953 and section 2(ii) of the Forest (Conservation) Act, 1980. Section 30 of the Act gives power to the State Government to issue notification prohibiting quarrying of stone or burning of lime etc and penalties for the acts in contravention of such notification or the rules made under section 32 of the Rajasthan Forest Act, 1953. Section 30, 32 and 33 of the Rajasthan Forest Act, 1953 are quoted here as under - 30. Section 30, 32 and 33 of the Rajasthan Forest Act, 1953 are quoted here as under - 30. Power to issue notification reserving trees etc.- The [State Government ]may, by notification in the [Official Gazette] - (a) declare any trees or class of trees in a protected forest to be reserved, from a date fixed by the notification; (b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the [State Government] thinks fit, and that the rights of private persons if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or (c) prohibit, from a date fixed as aforesaid, the quarrying of stone or the burning of lime or charcoal or the collection or subjection to any manufacturing process, or removal of, any forest produce in any such forest and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in such forest. 32. 32. Power to make rules for protected forests - The [State Government] may make rules to regulate the following matters, namely : (a) the cutting, sawing, conversion and removal of trees and timber and the collection, manufacture and removal of forest produce, from protected forests: (b) the granting of licences to the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber or other forest produce for their own use, and the production and return of such licences by such persons; (c) the granting of licences to persons felling or removing tress or timber or other forest produce from such forests for the purposes of trade, and the production and return of such licences by such persons; (d) the payment, if any, to be made by the persons mentioned in clauses (b) and ( c) for permission to cut such trees or to collect and remove such timber or other forest produce; (e) the other payments, if any to be made by them in respect of such trees, timber and produce, and the place where such payment shall be made; (f) the examination of forest produce passing out of such forests; (g) the clearing and breaking up of land for cultivation or other purposes in such forests; (h) the protection from fire of timer lying in such forests and of trees reserved under section 30; (i) the cutting of grass and pasturing of cattle in such forest; (j) hunting, shooting, fishing, poisoning water and setting traps or snares in such forests; (k) the protection and management of any portion of a forest closed under section 30; and (l) the exercise of rights referred to in section 29. 33. Penalties for acts in contravention of notification under section 30 or rules under section 32. 33. Penalties for acts in contravention of notification under section 30 or rules under section 32. - (1) Any person who commits any of the following offences, namely:- (a) fells, girdles, lops, taps or burns any tree reserved under section 30, or strips off the bark or leaves from or otherwise damages, any such tree; (b) contrary to any prohibition under section 30, quarries any stone, or burns any line or charcoal or collects, subjects to any manufacturing process, or removes any forest produce; (c) contrary to the prohibition under section 30, breaks up or clears for cultivation or any other purpose, any land in any protected forest; (d) sets fire to such forest or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30, whether standing, fallen or felled or to any closed portion of such forest; (e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion; (f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid: (g) permits cattle to damage any such tree; (h) infringes any rule made under section 320; shall be punishable with imprisonment for a term which may extend to six moths, or with fine which may extend to five hundred rupees or with both. (3) Whenever fire is caused wilfully or by gross negligence in a protected forest, the [State Government ] may, notwithstanding that any penalty has been inflicted under this section, direct that in such forest or any portion thereof, the exercise of any right of pasture or to forest produce shall be suspended for such period as it thinks fit, but no such order shall be passed without affording the persons concerned an opportunity to represent their case." 5. Bare perusal of the above provisions reveals that maximum imprisonment prescribed under Section 33 of the Rajasthan Forest Act, 1953 is six months. 6. Sections 2 and 3A of the Forest (Conservation) Act, 1980 are also quoted hereunder for ready reference - 2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose. Bare perusal of the above provisions reveals that maximum imprisonment prescribed under Section 33 of the Rajasthan Forest Act, 1953 is six months. 6. Sections 2 and 3A of the Forest (Conservation) Act, 1980 are also quoted hereunder for ready reference - 2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose. - Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation. Explanation - For the purpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants; (b) any purpose other than reafforestation; but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes. 3A. Penalty for contravention of the provisions of the Act. - Whoever contravenes or abets the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days." 7. Bare perusal of the provisions quoted above shows that for contravention of the provisions of section 2 of the Act of 1980, simple imprisonment for maximum period of fifteen days is provided. 8. Bare perusal of the provisions quoted above shows that for contravention of the provisions of section 2 of the Act of 1980, simple imprisonment for maximum period of fifteen days is provided. 8. As per the Schedule - II of Code of Criminal Procedure, 1973 giving classification of offences qua other laws, the offence for which FIR has been registered will be tried as non-cognizable offence. 9. Section 155(2) of the Code of Criminal Procedure reads as under- "155. Information as to non-cognizable cases and investigation of such cases.- (1). - (2). No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial." 10. Thus, it is apparent that offence under Section 33 of the Rajasthan Forest Act, 1953 is non-cognizable offence and petitioner can only be prosecuted by filing a complaint by the authorised/competent Officer. No FIR in the present case, could have been registered. Further, the concerned Police Officer has not obtained permission from the concerned Magistrate for investigation of the offence. 11. In view of the above, the proceedings initiated in pursuance of the impugned FIR cannot be sustained and are liable to be set aside. 12. Consequently, the present petition is accepted and the impugned FIR is quashed along with all subsequent proceedings. 13. However, liberty is granted to the competent authorised Officer to file a complaint in accordance with the provisions of law, if it is not barred by limitation. 14. Consequent upon acceptance of the main petition, the stay application filed therewith, also stands disposed of. 15. Before parting with the judgment, Mr Rajendra Prasad, Additional Advocate General was called in the court to find out as to whether there is a need to amend the Rajasthan Forest Act, 1953 looking to the present scenario. The illegal mining in forest area and offence under the Act of 1953 are increasing and could not be checked effectively despite restrain orders passed by the Hon'ble Supreme Court. The offence shown to be non-cognizable and looking to the maximum term of punishment i.e. six months only, a complaint is maintainable. The Government of Rajasthan needs to take a serious view on the issue so that illegal mining in forest area may be checked properly. If the amendment is made, then even FIR would be maintainable. The offence shown to be non-cognizable and looking to the maximum term of punishment i.e. six months only, a complaint is maintainable. The Government of Rajasthan needs to take a serious view on the issue so that illegal mining in forest area may be checked properly. If the amendment is made, then even FIR would be maintainable. Accordingly, Mr Rajendra Prasad, Additional Advocate General would be expected to send his opinion to the Government for appropriate amendment in the Act of 1953.Petition allowed. *******