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2022 DIGILAW 26 (JK)

Jouab Choudhary v. State of J&K

2022-02-07

SINDHU SHARMA

body2022
JUDGEMENT/ORDER : 1. The petitioner has invoked inherent jurisdiction of this Court petition under section 561-A Cr.P.C. for quashing of FIR No. 363/2013 by which offences under Sections 447, 427, 379, 147, 148 RPC dated 14.12.2013 has been registered against the petitioners including Assistant Conservator of Forest, Range Officer and other officials of the Forest Department numbering seven. 2. The petitioners filed a civil suit for permanent prohibitory injunction for restraining Romesh Singh and Chanchal Singh from interfering into the peaceful possession of the Forest Department over the suit land. The petitioners have annexed a copy of the order dated 16.12.2013 passed by learned 1st Additional Munsiff Forest Magistrate, Jammu in civil suit filed by the State against Chanchal Singh-respondent No. 2 in this petition and one Romesh Singh. Vide order dated 16.12.2013 defendants have been temporarily restrained from interfering in the land measuring 672 Kanal 13 Marlas under Khasra No. 792 situated in village Ban Tehsil and District Jammu. 3. It appears that Chanchal Singh had obtained Nishandai of the land from Naib Tehsildar, Nagrota and Patwari Halqa had demarcated the land on 11.12.2013, however, in an appeal, this order was set aside by the Dy. Commissioner Jammu vide his order dated 16.12.2013 with the following observations: “Therefore keeping in view the facts mentioned above; it has been established that demarcation is bad in the eye of law as it has been conducted in absence of necessary party and not signed by the Naib Tehsildar concern as required under PSGA, hence is set aside. Naib Tehsildar Nagrota is directed to conduct demarcation personally thereby fixing a suitable date in presence of both the parties.” 4. The short and the only question involved in this petition is whether the Forest Magistrate was justified in directing registration of the case against the petitioners who are employees of the Forest Department. It appears that Section 42 of the Jammu and Kashmir Forest Act, which prohibits taking of cognizance of any offence against the Forest Officer was not considered by the Magistrate. This section reads as under: “42. Forest officers to be public servants: (1) No suit or criminal proceeding or other legal proceeding shall be initiated against any public servant for anything done by him in good faith under this Act. This section reads as under: “42. Forest officers to be public servants: (1) No suit or criminal proceeding or other legal proceeding shall be initiated against any public servant for anything done by him in good faith under this Act. (2) No Court shall take cognizance of any offence alleged to have been committed by a Forest Officer while acting or purporting to act ill the discharge of his official duty except with the previous sanction of the Government. Indemnity for act done in good faith.- No suit shall lie against any public servant for anything done by him in good faith under this Act.” 5. Before directing registration of the case against the employees of Forest Department, the Magistrate ought to have enquired whether the action of the petitioners was bonafide and also in good faith and in discharge of their official duty. There is always a chance of misdirection and unnecessary harassment. Though in this case, the petitioners were saved from avoidable consequences by this Court vide order dated 19.12.2013 which reads as under: “Meanwhile, petitioners in connection with the case, FIR No. 363/2013 shall not be taken into custody. However, petitioners to cooperate with the investigating agency.” 6. The nature of the dispute is civil and since the State has filed a civil suit in which respondent No. 2 has been restrained and there could have no occasion for the Forest Magistrate to direct registration of the case. The direction to register the case of theft and rioting is bad because in the civil case accused respondent No. 2 has been restrained from interfering in the possession of the Forest Department. The petitioners were preventing encroachment of forest land which is their legitimate duty. Since the land is recorded in the possession of the Forest Department the demarcation should have been made in the presence of the officials of Forest Department. It is a big chunk of land and even, if any, portion of it is found to be belonged to the respondent No. 2, yet no criminal case can be made out against the petitioners in view of the bar of Section 42 of the Forest Act. It is a big chunk of land and even, if any, portion of it is found to be belonged to the respondent No. 2, yet no criminal case can be made out against the petitioners in view of the bar of Section 42 of the Forest Act. The petitioners have only been alleged to have acted in mala fide manner and mere allegations that they have acted otherwise than in discharge of their duty is not enough to wriggle out mandate of Section 42 of the Jammu and Kashmir Forest Act, 1987. 7. The scope of exercising inherent power under Section 482 of CRPC in given cases has been considered by Hon'ble the Supreme Court in 'State of Haryana & Ors. v. Ch. Bhajan Lal & Ors.', (1990) 0 Supreme(SC) 740 wherein it has been held that such power can be exercised to prevent abuse of process of anywhere or to secure the ends of justice where it can be exercised that: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they a, taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 8. In view the aforesaid discussions and to prevent the abuse of process of the Court and to secure the ends of justice, this petition is allowed and FIR No. 363/2013 dated 14.12.2013 is quashed. Connected applications, if any, shall stand disposed of.