Chas, Dist. Bokaro v. The State of Jharkhand
Case Details
1 Cr.M.P. No.2142 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2142 of 2022 Naresh Lodha, aged about 65 years, son of late Mahavir Prasad Lodha, resident of Purulia Road, P.S.- Chas, P.O.- Chas, Dist. Bokaro .... Petitioner Versus The State of Jharkhand …. Opp. Party P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State By the Court:- : Mr. Pandey Neeraj Rai, Advocate : Mr. Rohit Ranjan Sinha, Advocate : Mr. Akchansh Kishore, Advocate : Mr. Saurabh Sagar, Advocate : Mr. Mohit Mukul, Advocate : Mr. P.D. Agarwal, Spl. P.P. ….. 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding of C.P. (Forest) Case No.662 of 2018 involving the offence punishable under Section 33 of Indian Forest Act including the order taking cognizance dated 29.08.2019 passed by the learned Judicial Magistrate 1st Class, Bokaro. 3. The brief fact of the case is that an offence report dated 30.08.2014 was submitted by the forest guard and the same was made over to the learned Judicial Magistrate 1st Class, Bokaro on 29.06.2018. It is alleged in the offence report that in course of 2 Cr.M.P. No.2142 of 2022 patrolling of Bandhgora protected forest area, the accused persons were constructing a boundary wall in an illegal manner and when the forest officials reached the place of occurrence, they fled away. It is alleged that accused persons of the case, including the petitioner were constructing the said wall in order to encroach upon the forest land. The said offence report was accompanied by a petition for condonation of delay submitted by the Divisional Forest Officer, Bokaro Forest Division, Bokaro. 4. The learned Magistrate vide order dated 29.08.2019 took note of the fact that though the offence report was received on 29.06.2018 but because of the mistake, cognizance could not be taken in that case and later on; in the same day, by a separate order, took cognizance of the offence punishable under Section 33 of Indian Forest Act, 1927 as amended by the Bihar Amendment Act, 1989 inter alia against the petitioner. 5. It is submitted by the learned counsel for the petitioner that the cognizance order was cryptic and while launching the prosecution, it has not been mentioned as to which subsection of section 33 has been violated by the petitioner. It is next submitted by the learned counsel for the petitioner that no notification has been issued in terms of Section 30 of the Act and the same has not been brought on record. Hence, no offence punishable under Section 33 of Indian Forest Act is made out. It is next submitted by the learned counsel for the petitioner that the petitioner has lodged Chas P.S. Case No. 98 of 2014 against the District Forest Officer and others. It is further submitted by the learned counsel 3 Cr.M.P. No.2142 of 2022 for the petitioner that the prosecution is barred by limitation as though the occurrence of the alleged offence is on 30.8.2014 but the prosecution report has been filed much belatedly on 29.06.2018 and no order on the petition for condonation of delay has been passed nor any notice of the same has been issued to the petitioner. Hence, it is submitted that entire criminal proceeding of C.P. (Forest) Case No.662 of 2018 including the order taking cognizance dated 29.08.2019 be quashed and set aside. 6. Learned Special Public Prosecutor on the other hand vehemently opposes the prayer for quashing the entire criminal proceeding of C.P. (Forest) Case No.662 of 2018 including the order taking cognizance dated 29.08.2019 and submits that true it is that the cognizance order do not reflect application of mind regarding condonation of delay for which a specific application was submitted by the Divisional Forest Officer. It is next submitted by the Special Public Prosecutor that in view of the judgment of Hon’ble Supreme Court of India in the case of T.N. Godavarman Thirumulkpad vs. Union of India & Ors. reported in (1997) 2 SCC 267, in addition to the offence; the cognizance of which has been taken by the learned Judicial Magistrate, the offence punishable under the penal provision of the Forest Conservation Act, 1980 is also made out as non-forest activity like construction of wall was going on inside the protected forest area. It is next submitted that it is apparent from the order taking cognizance that the delay has been condoned by the learned Magistrate, though the same had not been specifically mentioned. Hence, it is 4 Cr.M.P. No.2142 of 2022 submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that the learned Judicial Magistrate before condoning the delay must have issued notice to the accused persons and behind their back ought not have taken the cognizance without passing an express order for condonation of delay. In this respect, it is relevant to refer to the Judgment of Hon’ble Supreme Court of India in the case of P.K. Choudhury Vs. Commander, 48 BRTF (GREF), reported in (2008) 13 SCC 229, para-10 of which reads as under:- “10. The learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before condoning the delay the appellant was not heard. In State of Maharashtra v. Sharadchandra Vinayak Dongre [(1995) 1 SCC 42 : 1995 SCC (Cri) 16] this Court held: (SCC p. 44, para 5) “5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a ‘supplementary charge-sheet’ on the basis of an ‘incomplete charge-sheet’ and quashed the order of the CJM dated 21-11-1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous.” (Emphasis supplied) 8. Now coming to the facts of the case, without any doubt admittedly, the prosecution report was submitted after the limitation period but undisputedly, a petition for condonation of 5 Cr.M.P. No.2142 of 2022 delay was submitted along with prosecution report but the learned Magistrate neither issued any notice in the matter of limitation to the accused persons of the case including the petitioner nor passed any express order regarding condonation of delay before passing the order of taking cognizance. 9. Under such circumstances, this Court has no hesitation in holding that the said order dated 29.08.2019 is not sustainable in law hence, the same is liable to be quashed and set aside. 10. Accordingly, the order passed later on dated 29.08.2019 passed by the learned Judicial Magistrate 1st Class, Bokaro in C.P. (Forest) Case No.662 of 2018 is quashed and the case is remanded to the learned Judicial Magistrate 1st Class, Bokaro to pass a fresh order in respect of condonation of delay in filing the prosecution report and taking cognizance; after issuing notice to the petitioner of this case as well as the other accused persons. 11. 12.
Decision
Accordingly, this criminal miscellaneous petition is disposed of. In view of the disposal of this criminal miscellaneous petition, the interim order, if any, is vacated. High Court of Jharkhand, Ranchi Dated the 11th July, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)