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2015 DIGILAW 1071 (JHR)

J. P. Sharma v. State of Jharkhand

2015-09-10

H.C.MISHRA

body2015
ORDER Heard learned counsel for the petitioners and learned counsel for the State. 2. Petitioners have prayed for quashing the entire criminal proceeding against them in connection with G-172 of 2003, as also the order dated 21.1.2006 passed therein, by the learned Chief Judicial Magistrate, Hazaribagh, whereby the cognizance, for the offence under Section 33 of the Indian Forest Act, has been taken against the petitioners. 3. The prosecution report has been brought on record, which shows that the petitioners, being the Chairman-cum-Managing Director and the General Manager of the Central Coalfields Ltd., as also the Project Officer and the Manager of Kuju project, of Central Coalfields Ltd., have been made accused, alleging that they were engaged in the mining operations of coal in Hesagraha, Murpa, Pokhria, Kuju and Banbar protected forests, on, in all measuring about 277.80 acres of forest land, thereby causing loss of about Rs.5,62,10,000/-to the Forest Department. It is stated in the prosecution report that these forests have been notified by notification dated 2.1.1953. With these allegations, the prosecution report was submitted, on the basis of which, by order dated 21.1.2006, the Court below took cognizance for the offence under Section 33 of the Indian Forest Act against the petitioners. 4. The case of the petitioners is that the mining operations were being carried out by the Central Coalfields Ltd. According to the petitioners' case, the lands in question had been acquired in phase wise manner under the provisions of the Coal Bearing Areas (Acquisition and Development) Act, 1957, for mining operations and other ancillary activities, and were also published in the Gazette of India, and the same were transferred to M/s Central Coalfields Ltd. Subsequently, the Central Government enacted the Forest (Conservation) Act, 1980. There was a dispute whether in view of the fact that the lands being acquired under the Coal Bearing Areas (Acquisition and Development) Act, 1957, the provisions of Forest (Conservation) Act, 1980 were applicable or not, and the matter went up to the Hon'ble Supreme Court of India in Cr. Appeal No.70 of 1998, against the similar prosecution against the officials of Central Coal Fields Ltd. In the said Cr. Appeal No.70 of 1998, against the similar prosecution against the officials of Central Coal Fields Ltd. In the said Cr. Appeal, the state of Jharkhand agreed that it shall not pursue the prosecution till the final orders are made on the application filed by the Central Coalfields Ltd., under Section 2 of the Forest (Conservation) Act, and in view of the stand of the State of Jharkhand before the Apex Court, the appeal was withdrawn by Central Coalfields Ltd., reserving the liberty to challenge any adverse order made under Section 2 of the Forest (Conservation) Act, as also to raise all such pleas in appropriate proceedings. The said criminal appeal was accordingly, disposed of with the liberty as aforesaid. The order passed by the Apex Court has been brought on record as Annexure-4 to this application. It is the case of the petitioners that no final order had been passed under Section 2 of the Forest (Conservation) Act, till the launching of the prosecution against the petitioners. It is also the case of the petitioners that demand notice for payment of compensation had been received from the Forest Department and the said payments have been made by the Central Coalfields Ltd., still the prosecutions have been lodged against the petitioners, being the Senior Officials of the Central Coalfields Ltd. 5. Learned counsel for the petitioners have submitted that the aforesaid prosecution is absolutely illegal and in teeth of the undertaking given before the Hon'ble Supreme Court in criminal appeal No.70 of 1998, as no final order had been passed on the application of the Central Coalfields Ltd., submitted under Section 2 of the Forest (Conservation) Act. Learned counsel has also submitted that in any view of the matter, since the mining operation was being carried out by the Central Coalfields Ltd., which is a Government company within the meaning of the Companies Act, no mens rea can be attached showing any criminal intention on the part of the petitioners for committing the offence. Learned counsel accordingly, submitted that the criminal proceeding cannot be sustained in the eyes of law. 6. It is further submitted by the learned counsel for the petitioners that it is apparent from the prosecution report in this case that the mining operation was being carried out by the Central Coalfields Ltd., and the petitioners are only the officials of the said Company. 6. It is further submitted by the learned counsel for the petitioners that it is apparent from the prosecution report in this case that the mining operation was being carried out by the Central Coalfields Ltd., and the petitioners are only the officials of the said Company. It is submitted that the offence, if any, has been committed by the Company and accordingly, the petitioners cannot be made vicariously liable for the offence under the Indian Forest Act, as there is no provision for any vicarious liability in the said Act. Learned counsel accordingly, submitted that on this score also, the criminal proceeding against the petitioners, as also the order taking cognizance, are fit to be quashed. It is further submitted that in similar circumstances, the criminal proceeding against the officials of the Central Coalfields Ltd., have been quashed by a detailed order dated 15.4.2015 passed by this Court in Cr.M.P. Nos. 918, 1078, 1149, 1150 and 1151 of 2003. 7. Learned counsel for the State has opposed the prayer, submitting that law has been laid down by the Hon’ble Supreme Court of India in T.N. Godavarman Thirumulkpad Vs. Union of India & Ors., reported in AIR 1997 SC 1228 , that for doing the non-forest activities in the protected forest, prior permission of the Central Government is necessary, and accordingly, the offence is made out against the petitioners. 8. Having heard learned counsels for both the sides, it is apparent that though Sections 33 of the Indian Forest Act is a penal provision, but there is no provision for any vicarious liability therein. In Maharashtra State Electricity Distribution Company Limited and Anr., Vs. Datar Switchgear Limited and Ors., as reported in (2010) 10 SCC 479 , wherein, the Chairman of the Maharashtra State Electricity Board was made an accused for the offence under Sections 192 and199 read with Section 34 of the Indian Penal Code, the Supreme Court took note of its earlier decision in S.K. Alagh Vs. State of UP & Ors., reported in (2008) 5 SCC 662 , and has laid down the law as follows:- “30. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192 IPC nor Section 199 IPC incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. It would be profitable to extract the following observations made in S.K. Alagh: (SCC p.667, para 19) “19. As, admittedly, drafts were drawn in the name of the company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself.” (Emphasis supplied). 9. Thus, the case of the petitioners is fully covered by the aforementioned decisions of the Supreme Court, wherein, it has been specifically held that wherever by legal fiction the principle of the vicarious liability is attracted and a person, who is otherwise not personally involved in the commission of the offence, is made liable for the same, it has to be specifically provided in the Statute concerned. In Sections 33 of the Indian Forest Act, there is no provision for any vicarious liability and accordingly, in absence of any specific averment / allegation against the petitioners in the prosecution report, the institution of the criminal case against these petitioners for the offence under Sections 33 of the Indian Forest Act, and the cognizance taken against them for the said offence, are absolutely illegal and the same cannot be sustained in the eyes of law. 10. Apart from the above, from the prosecution report, it appears that these forests were notified by notification dated 2.1.1953. It is not apparent from the prosecution report whether the notification was issued under Section 29 of the Indian Forest Act or Section 30 of the said Act. 10. Apart from the above, from the prosecution report, it appears that these forests were notified by notification dated 2.1.1953. It is not apparent from the prosecution report whether the notification was issued under Section 29 of the Indian Forest Act or Section 30 of the said Act. It is apparent that, if there was no notification under Section 30 of the Indian Forest Act, no offence can be said to be made out under Section 33 of the Indian Forest Act and if that notification was issued under Section 30 of the Indian Forest Act, its life had already expired upon expiry of the period of 30 years. As such, on the date of the alleged occurrence, i.e., on 8.8.2003, the life of notification had already expired. There is nothing in the prosecution report to show that if the notification was issued under Section 30 of the Indian Forest Act, any further notification was issued upon expiry of the previous notification. On this score also, I am of the considered view, that no cognizance could be taken against the petitioners for the offence under Section 33 of the Indian Forest Act. 11. For the foregoing reasons, the impugned order dated 21.1.2006 passed by the learned Chief Judicial Magistrate, Hazaribagh, in Case No. G-172 of 2003, as also the entire criminal proceeding against the petitioners in the case, are hereby, quashed. This applicable is accordingly allowed. Let the Lower Court Record be sent back forthwith.