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2023 DIGILAW 656 (JHR)

Ashok Kumar Jha v. State of Jharkhand

2023-05-09

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Prabhash Kumar and Mr. Srijit Choudhary, learned counsel for the petitioners and Mr. Sunil Kumar Dubey and Mr. Achinto Sen, learned counsel for the State. 2. In all these petitions, common question of facts and laws are involved and that is why, all these petitions are being heard together with consent of the parties. 3. The prayer has been made in Cr.M.P. No. 1338 of 2014 for quashing of order taking cognizance dated 27.06.2013 including the entire criminal proceedings in connection with G(F)-198/12 dated 29.03.2012 corresponding to TR-1389/13, pending in the court of the learned Judicial Magistrate, 1st Class, Hazaribagh. The prayer has been made in Cr.M.P. No. 1339 of 2014 for quashing of order taking cognizance dated 27.06.2013 including the entire criminal proceedings in connection with G(F)-197/12 dated 29.03.2012 corresponding to TR-1390/13, pending in the court of the learned Judicial Magistrate, 1st Class, Hazaribagh. The prayer has been made in Cr.M.P. No. 1502 of 2014 for quashing of order taking cognizance dated 27.06.2013 including the entire criminal proceedings in connection with G(F)-197/12 dated 29.03.2012 corresponding to TR-1390/13, pending in the court of the learned Judicial Magistrate, 1st Class, Hazaribagh and the prayer has been made in Cr.M.P. No. 1834 of 2014 for quashing of order taking cognizance dated 27.06.2013 including the entire criminal proceedings in connection with G(F)-198/12 dated 29.03.2012 corresponding to TR-1389/13, pending in the court of the learned Judicial Magistrate, 1st Class, Hazaribagh. 4. In all these cases, offence report was filed by the Forest Guard alleging therein that the Forest Guard along with his colleague was travelling in the forest area where they found that electric poles were installed and wiring were done by the petitioners. On further enquiry with the local police, it came to knowledge that DVC and L&T had done work in about 7 KM reserve forest. 5. Mr. Prabhash Kumar, learned counsel for the petitioner submits that the said erection of electricity wire was being made pursuant to the permission granted by the Central Government, State Government and on the recommendation of the Deputy Commissioner, the Forest Department has also granted permission for erection of electricity wire, which are on the record as Annexures-2 to 10. 5. Mr. Prabhash Kumar, learned counsel for the petitioner submits that the said erection of electricity wire was being made pursuant to the permission granted by the Central Government, State Government and on the recommendation of the Deputy Commissioner, the Forest Department has also granted permission for erection of electricity wire, which are on the record as Annexures-2 to 10. He submits that in this background, the work order was being carried out by DVC and DVC has entrusted the work to L&T and that is why the L&T was working there. He further submits that in spite of the said permission, the offence report has been filed which is contrary to the materials on record. He submits that moreover the Forest Guard is not competent person to lodge such report in view of Section 50 of the Wildlife (Protection) Act, 1972. He put much emphasis on Sub-Section (1) and Sub-Section (3A) of the said Section. By way of inviting attention of the Court to Section 55 of the said Act, he submits that the manner of cognizance of offence has been described therein. On this ground, he submits that the order taking cognizance is bad in law. 6. Mr. Srijit Choudhary, learned counsel for the petitioners adopted the argument of Mr. Prabhash Kumar and he has supplemented the argument by referring Section 55 of the said Act and submits that the cognizance has been taken without following the procedure prescribed in Section 55 of the said Act. Both the counsel have sought to quash the entire criminal proceedings. 7. On the other hand, learned counsel for the State submit that the learned court has taken cognizance on the offence report filed by the Forest Guard. They further submit that what are the offences, that can be decided at the time of trial and at this stage, this Court may not quash the entire criminal proceedings. 8. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record including the offence report and finds that admittedly the Forest Guard has filed the offence report. For correct appreciation, Section 50 of the Act reads as under: “50. 8. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record including the offence report and finds that admittedly the Forest Guard has filed the offence report. For correct appreciation, Section 50 of the Act reads as under: “50. Power of entry, search, arrest and detention: (1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub- inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act: (a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy or [trophy, uncured trophy, specified plant or part or derivative thereof] in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act. (b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession. (c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, anddetain him: Provided that where a fisherman, residing within ten kilometres of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized. (2) *** *** *** (3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detainany person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him. (3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or [an Assistant Conservator of Forests] who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. (4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law [under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard. (5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce under this section, shall be guilty of an offence against this Act. (6) Where any meat, uncured trophy, specified plant or part or derivative thereof is seized under the provisions of this section, the Assistant Director of Wild Life Preservation or any other officer of a gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer may arrange for the disposal of the same in such manner as may be prescribed. (7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance in the prevention or detection of an offence against this Act, or in apprehending persons charged with the violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of such person or persons to render such assistance. (8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or [an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the powers, for purposes of making investigation into any offence against any provision of this Act: (a) to issue a search warrant. (b) to enforce the attendance of witnesses. (c) to compel the discovery and production of documents and material objects. (d) to receive and record evidence. (9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.” 9. Looking into the above provision, it is crystal clear that only authorised person by competent authority can submit offence report and admittedly there is nothing on record to suggest that Forest Guard was authorised by the competent authority to lodge the case. 10. Section 55 of the Act speaks that no court can take cognizance on any offence against this Act on the complaint of person which are specified in Sub-section (a) to (c) of the said Section. None of the conditions made in that Section is fulfilled in the present case. Thus, Section 55 of the Act is also not complied with. 11. It is well settled that if anything is directed to be done in a way as provided in the statute, it is required to be followed, which is lacking in the case in hand. Further, the documents on the record particularly Annexures-2 to 10 suggest that there is permission of the Central Government and Finance Department of the State for doing such work in the said area. It further suggests that on flimsy ground, the case has been lodged against the petitioners. If the case is fit to be quashed on sufficient law points, to allow the proceeding to continue before the learned court will amount to abuse of process of law. In that view of the matter, the Court is not accepting the submission of the learned counsel for the State. 12. If the case is fit to be quashed on sufficient law points, to allow the proceeding to continue before the learned court will amount to abuse of process of law. In that view of the matter, the Court is not accepting the submission of the learned counsel for the State. 12. In view of the above facts, reasons and analysis, so far as the above named petitioners are concerned, the order taking cognizance dated 27.06.2013 including the entire criminal proceedings in connection with G(F)-198/12 dated 29.03.2012 corresponding to TR-1389/13 and the entire criminal proceedings in connection with G(F)-197/12 dated 29.03.2012 corresponding to TR-1390/13, pending in the court of the learned Judicial Magistrate, 1st Class, Hazaribagh are quashed. 13. Accordingly, these petitions are allowed and disposed of.