Orissa High Court
Ramesh Chandra Sabat And Another vs State Of Orissa And Others on 17 April, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 956 OF 2005
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with 2(b) C.C. Case No.11 of
2004 pending on the file of J.M.F.C., Aska.
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Ramesh Chandra Sabat
and another ......... Petitioners
-Versus-
State of Orissa
and others ......... Opposite parties
For Petitioners: - Miss. Deepali Mohapatra
For Opp. Parties: - Mr. Chitta Ranjan Swain
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 17.04.2017
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S. K. SAHOO, J.Heard Miss Deepali Mohapatra, learned counsel for the petitioners and Mr. Chitta Ranjan Swain, learned Addl. Standing counsel for the State.
The petitioners Ramesh Chandra Sabat and Jivan Chandra Pattanaik have filed this application under section 482 of Cr.P.C. challenging the impugned order dated 04.12.2004 2 passed by the learned J.M.F.C., Aska in 2(b) C.C. Case No.11 of 2004 in taking cognizance of offence under section 14 of the Orissa Saw Mills and Saw Pits (Control) Act, 1991 (hereafter for short '1991 Act').
The sole contention raised by the learned counsel for the petitioners while challenging the impugned order is that as per section 17(1) of the 1991 Act, no Court shall take cognizance of any offence punishable under the 1991 Act except on a report in writing of the facts constituting such offence made by Licensing Officer or any person duly authorized by the State Government or the Licensing Officer in that behalf. If any other person makes a complaint in writing to the Licensing Officer or to any authorized person then as per sub-section (2) of section 17, the Licensing Officer or the authorized person shall conduct an enquiry and finding sufficient reason to believe that an offence has been so committed, shall make a report to the Court within thirty days from the date of receipt of the complaint. It is contended by Miss Mohapatra that the Court cannot take cognizance of any of the offence under 1991 Act except as provided under section 17. She contended that in the present case, the offence was detected on 21.01.2004 and the Forester of Sherogodo Section prepared the prosecution report on 20.05.2004 and then it was placed before the Forest Range 3 Officer, Aska, Ganjam who forwarded the report on 10.06.2004 to the Conservator of Forests who in turn forwarded it to the learned J.M.F.C., Aska on 20.11.2004. According to the learned counsel for the petitioners, both the provisions i.e. sub-section (1) and sub-section (2) of section 17 of the 1991 Act have not been followed in the case and therefore, the prosecution report has no sanctity in the eye of law and the learned J.M.F.C., Aska should not have taken cognizance of offence under section 14 of the 1991 Act on the basis of such prosecution report.
On 20.03.2017 after recording the submissions made by the learned counsel for both the parties, this Court directed the learned counsel for the State to take specific instruction as to whether the State Government or the Licensing Officer has authorized anybody under section 17 of the 1991 Act to submit a report in writing before the Court to take cognizance of offence. The learned counsel for the State, Mr. Swain placed the letter dated 23.03.2017 of the D.F.O., Ghumsur South Division wherein it is indicated that the State Government or Licensing Officer has not authorized anybody under section 17 of the 1991 Act but the D.F.O., Ghumusur South Division has authorized the Forest Range Officer, Deputy Range Officer, Forester and field staff of Ghumusur South Division to participate in the protection 4 of forests and to curb the timber smuggling activities and to conduct raids on illegal saw mill premises etc. In view of sub-section (1) of section 17 of 1991 Act, a Court as enumerated under section 18 of the said Act can take cognizance of any offence punishable under 1991 Act only on the report in writing of the facts constituting of such offence of the following persons:-
(i) Licensing Officer;
(ii) Any person duly authorized by the State
Government;
(iii) Any person authorized by the Licensing Officer. As per section 2(e) of 1991 Act, "Licensing Officer"
means licensing officer appointed under section 3. As per the section 3 of the 1991 Act, any officer not below the rank of the Divisional Forest Officer can be appointed as a Licensing Officer by the State Government by notification.
The other persons, who are not coming under any of the above categories as per section 17(1) of 1991 Act, cannot submit a report to the Court directly for taking cognizance of offence. Such persons have to make a complaint in writing alleging the commission of an offence under 1991 Act either to the Licensing Officer or to the person authorized under sub- 5 section (1) of section 17. Thereafter, the procedure as laid down under sub-section (2) of section 17 has to be followed. The Licensing Officer or the authorized person shall conduct an enquiry and if he finds sufficient reason to believe that an offence has been so committed, he shall make a report to the Court within thirty days from the date of receipt of the complaint. A patently regulatory imposition in the matter of lodging of a report for such offence is discernible assuredly to obviate frivolous and wanton complaints by all and sundry. Therefore, in every circumstance, the report of the Licensing Officer or that of the person duly authorized either by the State Government or the Licensing Officer is necessary for a Court to take cognizance of any offence punishable under 1991 Act.
On the basis of the instruction received by the learned counsel for the State, it is very clear that in view of the authorization by the D.F.O., Ghumsur South Division, though there is no prohibition on the part of the Forest Range Officer or the Forester to conduct raid in the illegal saw mill premises and to participate in the forest protection and to curb the timber smuggling activities but they cannot directly make a report in writing to the Court to take cognizance of offence under the 1991 Act in view of the bar under section 17 of the 1991 Act. 6
The Forester in this case has submitted the prosecution report to the Forest Range Officer who in turn has forwarded it to the Conservator of Forests on 10.06.2004. The prosecution report prepared by the Forester which was forwarded to the Court of learned J.M.F.C., Aska by the Conservator of Forests cannot be said to be a report in writing by the Licensing Officer or by the any person duly authorized by the State Government or the Licensing Officer in that behalf in consonance with sub-section (1) of section 17 of 1991 Act. The Conservator of Forests has not conducted any enquiry after receipt of the report of the Forester to ascertain as to whether there are sufficient reason to believe that an offence under 1991 Act has been committed or not and that to within thirty days from the date of receipt of the prosecution report. It appears that much after the stipulated period of thirty days, only on 20.11.2004 the Conservator of Forests has simply forwarded the prosecution report to the Court of learned J.M.F.C., Aska, Ganjam.
In absence of any enquiry as contemplated under sub-section (2) of section 17 of the 1991 Act and in absence of any finding by the Licensing Officer that there is sufficient reason to believe that an offence has been committed under the 1991 Act, when the prosecution report prepared by the Forester was 7 forwarded to the Court by the Conservator of Forests five months after its receipt from the Forest Range Officer, I am of the view that the prosecution report which has been submitted in this case is not in consonance with the provision under section 17 of the 1991 Act. Therefore, the learned J.M.F.C., Aska has committed illegality in accepting such prosecution report and taking cognizance of the offence basing on such report. When there is a specific bar for taking cognizance, the Court should have been more careful while accepting such prosecution report and should not have mechanically taken cognizance of the offence under section 14 of the 1991 Act.
Therefore, the impugned order suffers from non- application of mind and cannot be sustained in the eye of law and in order to prevent abuse of the process and to secure the ends of justice, invoking the inherent power under section 482 of Cr.P.C., I am inclined to quash the impugned order.
Accordingly, the CRLMC application is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 17th April, 2017/Sisir