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2015 DIGILAW 1301 (RAJ)

Rajpal v. State of Rajasthan

2015-07-15

PRASHANT KUMAR AGARWAL

body2015
Order : Heard learned counsel for the parties. Claiming to be registered owner of the tractor-trolley bearing registration No.RJ.02-A-2755, petitioner has filed this criminal writ petition under Article 226 of the Constitution of India with a prayer to quash FIR No.320/2015 registered at Police Station Behror (District Alwar) for the offence under Section 41 readwith Section 42 of the Rajasthan Forest Act, 1953 (hereinafter referred to as the Act) and all subsequent proceedings undertaken therein and also to release the seized vehicle. Brief relevant facts for the disposal of this petition are that the aforesaid FIR came to be registered on 18.6.2015 and one Shri Subhash S/o Shri Jai Narain being driver of the aforesaid vehicle was arrested and the vehicle was seized by the concerned police officer on the premise that “forest produce” in the form of stones was being transported by it without any valid permit or transit pass. It was also found that the stones were brought from a forest area by illegal mining. The stones were also accordingly seized under the provisions of the Act. In support of the petition, learned counsel for the petitioner submitted as below : (i) Offences under the provisions of the Act are non-cognizable as the maximum sentence of imprisonment prescribed for such offences is less than three years. According to the Entry-III of Part-II of the First Schedule of Cr.P.C., if an offence under any other law (other than IPC) is punishable with imprisonment for less than three years or with fine only, such an offence is a non-congnizable offence within the meaning of Clause (c) and Clause (l) of Section 2 of Cr.P.C. (ii) Police Officer is not empowered to arrest a person accused of a non-cognizable offence without an order of a Magistrate and as per the provisions of Section 155 Cr.P.C. for such an offence neither FIR can be registered nor investigation can be undertaken by the police without the order of a Magistrate having power to try such offence or commit the case for trial. In the present case, it is an admitted fact that Shri Subhash was arrested, tractor-trolley and stones were seized, FIR was registered and investigation was undertaken by police without an order from the concerned Magistrate. In the present case, it is an admitted fact that Shri Subhash was arrested, tractor-trolley and stones were seized, FIR was registered and investigation was undertaken by police without an order from the concerned Magistrate. (iii) As the offence in the present case is under a special Act, preliminary enquiry was required to be conducted by the police to verify the allegation levelled against the accused before FIR was registered, but admittedly it was not done. The seized stones were being transported under the authority of a valid permit (Ravanna), which has been filed alongwith the petition. If before seizure and registration of FIR, opportunity would have been granted to the petitioner to explain the circumstances in which his vehicle was found to carrying stones from a forest area, he, by producing permit (Ravanna), was in a possession to satisfy the Seizing Officer that it was carrying the stones under a legal authority and in that eventuality need would not have arisen to register FIR and to undertake any other proceedings and that is why it was obligatory on the part of the police officer to conduct preliminary enquiry before proceeding further. On the other hand, learned Public Prosecutor submitted as below : (i) As per Clause (c) of Section 2 of Cr.P.C., if a police officer is authorised/ empowered under any other law (other then First Schedule of Cr.P.C.) to arrest a person without warrant for an offence under such other law, such offence is also a cognizable offence. If such other law specifically empowers or authorises a police officer to arrest a person without warrant or without an order of Magistrate, provisions of First Schedule of Cr.P.C. would not apply to ascertain whether the offence is cognizable offence or not. If such other law specifically empowers or authorises a police officer to arrest a person without warrant or without an order of Magistrate, provisions of First Schedule of Cr.P.C. would not apply to ascertain whether the offence is cognizable offence or not. (ii) Section 64 of the Act authorises not only a forest officer but also a police officer without order from a Magistrate and without a warrant to arrest a person against whom a reasonable suspicion exists of his having been concerned in any forest offence punishable for imprisonment for one month or upwards and, therefore, the offence in the present case is a cognizable offence within the menaing of Clause (c) of Section 2 of Cr.P.C. and police officer was entitled to register FIR and undertake all subsequent proceedings which he is entitled to undertake for a cognizable offence under the provisions of Cr.P.C. without an order from a Magistrate. (iii) As per the provisions of Clause (c) of Section 2 of Cr.P.C. readwith Section 64 of the Act, all offences under the Act are cognizable offences despite the fact that they are punishable with imprisonment for less than three years although offences under the Act punishable with imprisonment for less than one month may be non-cognizable offence. (iv) As in the present case, the offence for which FIR has been registered is a cognizable offence, officer incharge of the concerned police station was bound to register the FIR and police officer was empowered to undertake all proceedings thereunder as per the provisions of Section 154 Cr.P.C. without an order from a Magistrate. (v) There is no requirement of law that if an act or omission is an offence under the provisions of a special law like the Rajasthan Forest Act preliminary enquiry is required to be conducted before FIR is registered and investigation is undertaken by police. As per Section 154 Cr.P.C. as soon as information relating to the commission of a cognizable offence is given to an officer incharge of a police station by any person, it is obligatory on his part to register FIR in the manner provided in the provision. In the present case, the vehicle in question was found to be carrying stones from a forest area without any valid permit or transit pass. In the present case, the vehicle in question was found to be carrying stones from a forest area without any valid permit or transit pass. The petitioner would get opportunity during trial to satisfy the Court that the stones were being transported under some legal authority. (vi) At this stage of the proceedings, it cannot be said that even if for the sake of arguments the allegations levelled and the facts stated in the FIR are taken at their face value and considered to be true and correct in entirety even then essential ingredients constituting the offence for which the FIR has been registered are not disclosed. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions. The moot question arising for decision in the present case is whether the offence under Section 41 read with Section 42 of the Act for which FIR has been registered is a cognizable offence or a non-cognizable offence. Section 41 of the Act is as below : 41. Power to make rules to regulate transit of forest produce-(1)The control of all rivers and their banks as regards the floating of timber as wellas the control of all timber and other forest produce in transit by land or water is vested in the [State Government] and it may make rules to regulate the transit of all timbers and other forest produce. (2) In particular and without prejudice to the generality of the foregoing powers, suchrules may- (a) prescribe the route by which alone timber or other specified forest produce may be imported, exported or moved into,from or within [Stateof Rajasthan;] (b) prohibit the import or export or moving of such timber or other produce within defined local limits, without a pass from an officer duly authorised to issue the same or otherwise than in accordance with the conditions of such pass; (c) provide for the issue, production and return of such passes and for the payment offees therefore; (d) provide for the stoppage, reporting, examination and marking of timber or other forest produce in transit, in respect of which there is reason to believe that any money is payable to the [State Government] on account of the price thereof,or on account of any duty, fee, royalty or changedue thereon, or to which it isdesirable for the purpose of this Act to affixamark; (e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge ofit for examination, or for the payment of such money, or in order that such marks may be affixed to it;and the condition under which such timber or other produce shall be brought to, stored at removed from such depots; (f) prohibit the closing up or obstructing of the channel banks of any river used for the transit of timber or other forest produce, and the throwing of grass, brushwood, branches or leave into any such river or any act which may cause such river to be closed or obstructed; (g) provide for the prevention or removal of any obstruction of the channel or banks ofany river, and for recovering the cost ofsuch prevention or removal from the person whose acts or negligence necessitated the same; (h) prohibit absolutely or subject to conditions within specified local limits, the establishments of saw-pits, the converting, cutting,burning, concealing ormarking of timber, the altering of effacing of any marks on the same or the possession or carrying of marking hammers or other implements used for making timber; (i) regulate the use of property marksfor timber and the registration of suchmarks; prescribe thetime for which such registration shall hold good; limit the number of such marks that may be registered by any one person, and provide for the levy of fees for such registration. Section 42 of the Act, which is relevant for the present purpose is also reproduced as below : 42. Penalty for breach of rules made under section 41- (1) Any person who contravenes the provisions of the rules made under section 41 of this Act shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to twenty five thousand rupees or with both. (2) In case where the offence under sub-section(1)is committed ed after sunset and before sunrise or after preparation for resistance to lawful authority or where the offender has been previously convicted of a like offence the penalties shall be double of those mentioned in sub-section(1). Thus, the maximum imprisonment for which a person can be punished for an offence under Section 42 of the Act undoubtedly is less than three years. Cognizable offence has been defined under Clause (c) of Section 2 of Cr.P.C. and according to this provision “cognizable offence” means an offence for which a police officer may in accordance with the First Schedule or under any other law for a time being in force, arrest without warrant. As per Clause (l) of Section 2 of Cr.P.C., “non-cognizable offence” means an offence for which, a police officer has no authority to arrest without warrant. As per Clause (c) of Section 2 of the Code, cognizable offences can be classified in following two categories : (i) As mentioned in the First Schedule of the Code; and (ii) As provided under any other law for the time being in force. Thus, if any other law (other than Code of Criminal Procedure) specifically provides that an offence under that law is a cognizable offence or it empowers a police officer to arrest a person for an offence under that other law without warrant, then offence under that other law is also a cognizable offence. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. It is well settled legal position that when a special law creates offences and also creates a special jurisdiction, power or procedure for dealing with them, then provisions of such law will apply and not Cr.P.C. Although, as per the Entry-III of Part-II of First Schedule of Cr.P.C., if an offence under some other law (other than IPC) is punishable with imprisonment for less than three years or with fine only, it is a non-cognizable offence but if such other law specifically provides that an offence under such law is a cognizable offence or it empowers a police officer to arrest a person accused of an offence under such other law without warrant or without an order from a Magistrate, then such offence shall also be taken to be a cognizable offence even if the sentence prescribed is less than three years. It is not disputed that Rajasthan Forest Act is a special law as well as a local law. To ascertain the cognizability of an offence under other law, provisions of Part-II of First Schedule of Cr.P.C. would be applicable only when such other law is silent about the cognizability of the offence. Sub-section (1) of Section 64 of the Act provides that any forest officer or police officer may, without orders from a Magistrate and without a warrant, arrest any person against whom a reasonable suspicion exists of his having been concerned in any forest offence punishable with imprisonment for one month or upwards. Thus, this provision authorises and empowers not only a forest officer but also a police officer to arrest a person accused of an offence under the provisions of the Act without warrant and without an order of a Magistrate and, therefore, the offence under Section 42 of the Act is a cognizable offence despite the fact that maximum imprisonment for which an accused can be sentenced is less than three years. When this special law vide Section 64 has conferred power upon a police officer to arrest an accused without warrant, general law as per Entry-III of Part-II of First Schedule of Cr.P.C. would not apply. Consequently, it is held that offence under Section 41 readwith Section 42 of the Rajasthan Forest Act, 1953 is a cognizable offence. As the aforesaid offence is a cognizable offence, provisions of Section 154 Cr.P.C. are applicable and not Section 155 Cr.P.C. Section 154 Cr.P.C. provides for registration of FIR if information for a cognizable offence is received by officer incharge of a police station. No fault can be found if FIR has been registered in the present case and the same cannot be quashed on the ground that offence is non-cognizable. No law has been cited on behalf of the petitioner requiring conduct of some preliminary enquiry before FIR can be registered for an offence under a special Act and, therefore, on that ground also no fault can be found in the present FIR. In the case of Lalita Kumari Vs. Government of U.P. & Ors reported in (2014) 2 SCC 1 , Constitutional Bench of Five Judges of the Hon'ble Supreme Court has held that the registration of FIR is mandatory under Section 154 Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation. This is a general rule and must be complied with. It was also held that where the information received does not disclose a non-cognizable offence a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. In the present case, as per the averments made in the FIR, it cannot be said that commission of offence under Section 41 readwith Section 42 of the Act is not disclosed and, therefore, no preliminary enquiry was required to be conducted before FIR was registered. According to the allegations levelled in the FIR, the aforesaid tractor-trolley was carrying forest produce without a valid, permit or transit pass. The permit (Ravanna) produced by the petitioner alongwith the petition cannot be looked while considering the issue of quashing of the FIR. The learned Single Judge of this High Court vide order dated 13.4.2015 passed in SB Criminal Misc. The permit (Ravanna) produced by the petitioner alongwith the petition cannot be looked while considering the issue of quashing of the FIR. The learned Single Judge of this High Court vide order dated 13.4.2015 passed in SB Criminal Misc. Petition No.1601/2015 and in some other cases has held that offence under Section 41/42 of the Act is a non-cognizable offence and an accused can only be prosecuted by filing a complaint by the authorised/competent officer, but with respect to the learned Bench it has no binding effect as the aforesaid order has been passed without taking into consideration provisions of Section 64 of the Act. It is well settled legal position that a decision rendered overlooking or in ignorance or without taking into consideration a statutory provision shall be treated as per incuriam and cannot be regarded as a binding precedent. For the same reasons, the question involved in the present case is not required to be referred for decision by a Larger Bench. Consequently, the writ petition being meritless is, hereby, dismissed. The stay application is also dismissed.