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2021 DIGILAW 115 (GAU)

Narah Messo v. State Of Arunachal Pradesh

2021-02-11

PARTHIVJYOTI SAIKIA

body2021
JUDGMENT Parthivjyoti Saikia, J. - Heard the learned counsel Mr. T. T. Tara, appearing for the petitioner and also heard Ms. L. Hage, learned Additional Public Prosecutor appearing for respondent No.1. 2. The petitioners, namely, 1. Smti. Narah Messo, 2. Smti Taba Yaham Narah @ Narah Yakham, 3. Smti Narah Yanam(Dokhum), 4. Shri Narah Loma, 5. Shri Narah Khilli, 6. Shri Narah Taro, 7. Smti. Narah Yahe, 8. Smti Narah Yapa, 9. Shri Narah Nyokum, 10. Smti Narah Yap, 11. Shri Narah Bhai, 12. Shri Narah Tokur and 13.Shri Narah Hukur have filed this application under Section 482 of the Cr.P.C praying for quashing the CR Case No.49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia. 3. The petitioners 1, 2, 3, 7, 8, 9 and 10 were given Land Possession Certificate in Page No.# 4/6 the year 2012. But the petitioners 4, 5, 6, 11, 12 and 13 were not issued such certificates but since they are the family members of the other petitioners they have been possessing land with them. They have even constructed RCC houses and erected boundary fences. 4. The respondent No.2, filed a complaint case being CR Case No. 49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 against all the petitioners, alleging that they had encroached upon the forest land. The court below took cognizance of the aforesaid offences and issued summon to them to appear before the court. 5. Thereafter, the respondent No. 2 filed an FIR before police on 18.03.2018, alleging that the present 13 petitioners had illegally cut down valuable trees within forest areas. Thereafter, Kimin P.S. registered the case No. 02/2018 against the present petitioners. Some of the petitioners had to file anticipatory bail application in the High Court for the said case. This Court on 18.04.2018 in Anticipatory Bail Application No. 40(AP)/2018, had observed that "Rightly or wrongly, if one is granted with the LPC then he has the every right to occupy the land and to cultivate over the same". 6. Mr. Tara, learned counsel for the petitioner has referred to Section 210 of the Cr.P.C. According to Mr. This Court on 18.04.2018 in Anticipatory Bail Application No. 40(AP)/2018, had observed that "Rightly or wrongly, if one is granted with the LPC then he has the every right to occupy the land and to cultivate over the same". 6. Mr. Tara, learned counsel for the petitioner has referred to Section 210 of the Cr.P.C. According to Mr. Tara, the court below should not have taken cognizance of the offences upon the complaint because at that time a criminal investigation was going on upon the similar facts. Mr. Tara, submits that the magistrate was require to call for a report from the police investigating officer who conducted the investigation into the police case. 7. I have given my anxious consideration to the submissions made by the learned counsel of both the sides. 8. So far as the CR case No.49/2018 is concerned, the court below took cognizance of the offences under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 in the year 2018. At this stage, Section 9 of Assam Forest Regulation of 1891 may be quoted. Section 9 of Assam Forest Regulation, 1891 reads as under: "Magistrate" means magistrate of the first or second class, when he is specially empowered by the [State] Government to try forest offence." 9. Therefore, it is clear that in order to try offences under the Assam Forest Regulation of 1891, the magistrate must be specially empowered by the State Government. 10. On 02.08.2019, the Government of Arunachal Pradesh issued a notification empowering the Chief Judicial Magistrates and Judicial Magistrate First Class in the State of Arunachal Pradesh to try offences under Assam Forest Regulation, 1891. The Notification is quoted as under: "NOTIFICATION The 2nd August, 2019 No. JUD-82/86.- In pursuance of sub-section (9) of Section 3 of Assam Forest Regulation, 1891 (7 of 1891) as applicable in the State of Arunachal Pradesh, the Government of Arunachal Pradesh in consultation with the Gauhati High Court is pleased to empower the Chief Judicial Magistrates and Judicial Magistrate First Class in the State to try offences under Assam Forest Regulation, 1891 within their respective territorial jurisdiction." 11. It all boils downs to only one issue that the magistrate took cognizance of the offences under Assam Forest Regulation of 1891, when the magistrate was not empowered to do so. It all boils downs to only one issue that the magistrate took cognizance of the offences under Assam Forest Regulation of 1891, when the magistrate was not empowered to do so. Therefore, under Section 461 (k) of the Cr.P.C, the act of taking cognizance against the petitioners vide CR Case No. 49/2018, is vitiated. 12. Now, let me have a discussion upon the Section 482 of the Cr.P.C. Section 482 of the Cr.P.C is an extraordinary and inherent power of the High Court. This power was inserted into the Code by Criminal Procedure Code (Amendment) Act of 1923. Till then, the High Courts in India did not the power to do complete justice even if there was any palpable irregularity in the proceeding before court sub-ordinate to the High Court. It is a settled position of law that the power under Section 482 of the Cr.P.C. cannot be used in an ordinary manner. This power is not meant to cut short a regular criminal proceeding. There is no quarrel with the proposition of law that power under Section 482 of the Cr.P.C can be used for 3 reasons. The first reason is to give effect to an order under the Code of criminal proceeding, the second is to avoid abuse of the process of the court and the third is to advance the cause of justice. 13. It has already been discussed that the criminal proceeding in CR Case No. 49/2018, is vitiated under Section 461 (k) of the Code of Criminal Procedure. The magistrate taking cognizance of the offences under the Assam Forest Regulation of 1891 did not have the power to take cognizance of the said offences. Therefore, this irregularity cannot be corrected. 14. This Court is of the opinion that allowing the criminal proceeding in CR case No. 48/2018 to continue further would be nothing but an abuse of process of court. This is a fit case of exercising the power under Section 482 of the Cr.P.C. Accordingly, the Criminal Petition is allowed. The criminal proceeding in CR Case No.49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia is quashed. 15. The criminal proceeding in CR Case No.49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia is quashed. 15. However, it is further directed that this order shall not be a bar for further police investigation in the matter of Kimin P.S. Case No. 02.2018. It is further directed that this order shall also not act as a bar for the stand of the respondent No.2/State of Arunachal Pradesh that forest land shall not be allotted for non-forest purposes. 16. With the aforesaid observations, this Criminal Petition stands disposed of accordingly.