Gauhati High Court
Md. Abdul Kadir Choudhury vs State Of Assam And Anr. on 12 April, 1989
Equivalent citations: 1989CRILJ1888
ORDER B.P. Saraf, J.
1. The petitioner in this case is aggrieved by issue of process by the Chief Judicial Magistrate, Karimganj on the basis of an offence report submitted by the Divisional Forest Officer, Karimganj Division, Karimganj and has filed this petition for quashing of the same on the ground that the allegations made in the offence report do not disclose the ingredients of offences alleged.
2. The petitioner is a partner of a firm M/s. Ameria & Co. (Saw Mill) situated at Fakirbazar, Karimganj. In course of its business, the said Firm procures timber for its saw mill by purchasing logs from the individual contractors as well as the Forest Department and also by taking lease of timber mahals. On 11-6-87, the Divisional Forest Officer, alongwith a number of other officers and a Magistrate visited the mill premises of the petitioner and noticed some discrepancies in the hammer marks on the timber logs covered by 3 transit passes. The logs were seized. Thereafter, a complaint was filed against the petitioner and another charging them with having committed offences under Sections 24, 25, 40 and 41 of the Assam Forest Regulation, 1891 (hereinafter "the Regulation") and Sections 379, 411, 481, 482, 483, 484 and 489 of the Penal Code. The material facts leading to the proceedings as stated in the complaint and the allegations on the basis of which the offence report was filed, briefly stated, are as follows. On 31-3-87, the petitioner brought some log timbers at the millyard of the saw mill of his firm which were covered by transit pass Nos. 90/3052, 91/3052 dated 31-3-87 and 92/3052 dt. 31-3-87 issued by the Range Forest Officer, On receipt of information about the arrival of the aforesaid logs the FRI attached to Forest Protection Squad visited the mill premises and made physical verification of the said logs with the corresponding transit passes. On such verification though some doubts arose as to the genuineness and legality of the timbers on their physical appearance, he could not arrive at any conclusion and accordingly he did not conduct seizure of the said logs. He, however, branded the logs with his seizure hammer number in token of physical verification and as a mark of identification. Nothing thereafter happened till 11-5-87 when the Divisional Forest Officer and the said FRI made joint physical verification of the said timbers. During the joint physical verification, it was found that the said logs were girdled and had been dressed. The officers conducting the verification felt that "the timbers did not look so old as mentioned in the transit passes". For that it was observed that the timbers were "on suspicion to be manipulated". It was suggested that the Range Forest Officer should inspect the same personally. No finding was arrived at by the officers who conducted the joint physical verification of the said timbers. As the Forest Range Officer, i/c, Forest Protection squad found the case complicated, he referred the matter to the Divisional Forest Officer, Karimganj Division, who arranged for deputation of a Magistrate to conduct the formal seizure of the related timbers in presence of the T. P. Issuing Officer T.P. Holder and other officers of the Department. Accordingly, on 11-6-87, the said timbers were seized by the Divisional Forest Officer, Thereafter, the present offence report was filed. The allegations in brief, were that some particular hammer impression mark could not be found on the logs; on physical appearance of the related logs the same did not appear to be as old to admit them as operative timber on 1981-82; the logs were bearing distinction of girdling and dressing; that no remark to the effect of dressing was present on the transit passes. On the basis of these allegations, offence report was filed charging the petitioner and another with having committed offences under Sections 24, 25, 40 and 41 of the Assam Forest Regulation, 1891 and under Section 379, 411, 481, 482, 483, 484 and 489 of the Penal Code. The Chief Judicial Magistrate, on receipt of the offence report, issued summons against the petitioner and another under Section 24, 25, 40 and 41 of the Assam Forest Regulation.
3. The petitioner has filed the present petition before the Court Under Section 482 of the Code of Criminal Procedure for quashing the order passed by the Chief Judicial Magistrate, Karimganj taking cognizance of the offence on the ground that the allegations made in the offence report even if they are taken on their face value do not constitute any of the offences as alleged. The petitioner has also alleged that the offence report in this case is wholly mala fide and motivated. It is as a result of personal vendetta of the Divisional Forest Officer against the petitioner. The facts alleging mala fide have been categorically stated in paragraph 3 of the petition which reads as follows:
3. That the petitioner begs to state that due to various reasons which are mostly related to undue exaction by the Divisional Forest Officer and the resistance offered by the petitioner in that regard resulted in serious strained relation between the petitioner and the Divisional Forest Officer. The Divisional Forest Officer with an object to punish- and harass the petitioner started misusing his power by fabricating criminal cases one after another against the petitioner. The instant case is one of such cases. He has initiated simultaneously three more criminal cases being case No. 2570, 1393 and 658 of 1987. The petitioner has learnt that he has initiated two/three more cases which is in the offing but not yet registered.
4. From the aforesaid para, it appears that the petitioner has placed sufficient facts alleging motives against the Divisional Forest Officer who submitted the offence report. The said Divisional Forest Officer has also been made a party by name in the present petition as opposite party 2. The said officer has, however, not even denied the allegations. Though two years have passed since the present petition was filed in this Court he has chosen not to come forward with an answer refuting or denying the allegations which, therefore, remain unrebutted.
5. I have heard Mr. B. K. Das, learned Counsel appearing for the petitioner and Mr. C.R. De, learned Counsel for the respondents.
6. It is now settled law that when a prosecution at the initial stage is asked to be quashed, the test to be applied is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court the chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of the case* also quash the proceeding even though it may be at a preliminary stage. Madhav Rao Scindia v. Sambhajirao .
7. The question which, therefore, arises for consideration is whether the allegations set out in the offence report constitute any offence against the petitioner. The offences I charged against the petitioner are under | Sections 24, 25, 40 and 41 of the Assam Forest Regulation, 1891 and Sections 379, 411, 481, 482, 483, 484 and 489 of the Penal Code. Section 24 of the Regulation provides for penalties for trespass or damage in a reserve forest. Regulation 25 specifies acts prohibited in such forest, meaning thereby "reserve forest" and provides for punishment for commission of such offences. The aforesaid two sections deal with acts of trespass or damage and commission of certain other acts in a reserve forest which are prohibited by Section 25. The allegations contained in the offence report manifestly do not constitute an offence under any of the aforesaid two sections. In order to constitute an offence under the aforesaid two sections, a person must commit any of the acts mentioned above in a reserve forest. There is no such allegation. The allegations relate to some discrepancies or invisibility of certain hammer mark on the logs found with the petitioner which were dressed by him in his saw mill. The other allegation relates to non-endorsement of the T.P. by the T.P. holder in favour of the petitioner. None of these allegations contain any ingredient of an offence under the aforesaid two sections, namely Sections 24 and 25. No offence, therefore, can be said to have been committed on the allegations contained in the offence report under Sections 24 and 25 of the Regulation.
8. In the offence report and the process issued by the Court, the petitioner has also been charged with having committed offences under Sections 40 and 41 of the Regulation. Sections 40 and 41 deal with the rule making power of the State Government. Section 40 empowers the State Government to make rules to regulate transit of forest produce. Section 41 confers power on the State Government to attach to the breach of any rules framed under Section 40 punishment provided therein. It is really curious to note that the petitioner in this case has also been charged of having committed offence under these two sections. These sections do not deal with any offence. These are the sections empowering the State Government to frame rules. Charging a person of having committed an offence under these two sections goes to indicate that the complaint was filed most arbitrarily and mechanically without any application of mind whatsoever to the facts of the case and relevant provisions of law on the subject. No care was taken even to have a look at the section under which offences are alleged to have been committed not to speak of essential ingredients thereof.
9. In the offence report, Sections 379, 411, 481, 482, 483, 484 and 489 of the Penal Code have been mentioned and the petitioner has been charged of commission of offence under those sections. It is difficult to comprehend as to how the allegations contained in the complaint can be said to constitute an offence under the said sections. Section 379 deals with punishment for theft. Admittedly, it is not a case of theft. Section 411 deals with dishonestly receiving stolen property. Section 481 makes using a false property mark an offence. Section 482 simply provides for punishment for an offence committed under Section 481. Section 483 deals with counterfeiting a property mark used by another. Section 484 makes counterfeiting a mark used by a public servant an offence. Under Section 489 tampering with property mark with intent to cause injury has been made an offence. The allegations contained in the offence report manifestly do not constitute an offence under any of the aforesaid sections. The Chief Judicial Magistrate, however, issued process only under Sections 24, 25, 40 and 41 of the Regulation and not under any of the aforesaid sections of the Penal Code.
10. The officers holding positions of power are expected to act in a responsible manner. Prosecuting a person for commission of certain offence is a serious matter and has far-reaching implications for the persons against whom the process is set in motion. Such power should not be exercised lightly and mechanically. It should be exercised only where the facts of the case so demand The least that can be expected of an officer filing complaints in a court for prosecution of a person under certain provisions of law is that he will have a look at the relevant provisions of the law to acquaint himself with the essential ingredients of the offence and to satisfy himself that the basic ingredients of such offence exist. It is the solemn duty of Court, thereafter, before issuing any process to apply its judicial mind to the allegations made in the offence report or complaint and to satisfy itself that from facts stated at least a prima facie case is made out. The Court should not issue process mechanically on a complaint or report even from public servant. The proviso to Section 200 of the Cr. P.C. only provides that when a complaint is made by a public servant in discharge of his official duties, the Magistrate may not examine the complainant and the witnesses, but that does not mean that the Magistrate without the requisite satisfaction that there is sufficient ground, can issue the process. If the Court finds that there is no sufficient ground for proceeding against the accused, it should refuse to issue any process. The word "sufficient ground" means that a prima facie case has been made out for proceeding against the accused person. "Issue of process" is a judicial act and has to be performed by the Court judiciously. Issue of process without judicious application of mind to the facts of the case would vitiate the proceeding. In the instant case, it is evident that the Court did not at all apply its mind to the facts of the case and the offences alleged while issuing the process. It was a result of such unmindful act that process was issued for offences under the provisions which do not even deal with any offence. It may also be appropriate to observe that the very fact that the public servants who make a complaint to Magistrate have been given special treatment in the matter of examination upon oath Under Section 200 of the Cr. P.C. indicates the confidence the legislature has reposed i n t he public servants. The public servant should justify the confidence reposed in them. They should take due care while filing complaints and making allegations against any person. It must be remembered that the power to initiate prosecution against any person vested in public servants also carries with a solemn duty to exercise it judiciously only in cases where the facts and circumstances of the case so warrant. Arbitrary and capricious exercise of such power to set the machinery of criminal law in motion results in uncalled for encroachment on the life and liberty of a person and cause irreparable damage and hardship. A public servant vested with such power should also bear in mind that any arbitrary or mala fide exercise of such power is fraught with serious consequences even for one who exercises it in such a manner. This power, therefore, should never be exercised for an oblique purpose.
11. On careful consideration of the facts as above, I am satisfied that the allegations made in the complaint, even taken at their face value, do not disclose the essential ingredients of any of the offences alleged against the petitioner. It is evident that there was no application of mind whatsoever by the Divisional Forest Officer to the facts of the case vis-a-vis the offences alleged. The Chief Judicial Magistrate also issued process without applying his mind to the fact - Whether the basic ingredients of the offences alleged were spelt out from the allegations made in the offence report. Issue of process by the Chief Judicial Magistrate, in the instant case under such circumstances, cannot be allowed to continue. Accordingly, impugned criminal proceedings instituted against the petitioner in CR. Case No. 2286/87 pending before the Chief Judicial Magistrate, Karimganj in C.R. Case No. 2286/87 are quashed.