Karnataka High Court
Anil H Lad S/O Late. Heeroji Lad vs State Of Karnataka on 24 September, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRL.P. NO.10430/2011
BETWEEN:
1. ANIL H.LAD
AGED 37 YEARS, S/O LATE HEEROJI LAD
DIRECTOR, M/s VSL MINING COMPANY
PVT.LTD., HOUSE OF LADS, SANDUR
TALUK, BELLARY DIST.
2. RAJANI A.LAD
AGED 39 YEARS, C/O LATE ASHOK H.LAD,
M/s VSL MINING COMPANY
PVT.LTD., HOUSE OF LADS, SANDUR
TALUK, BELLARY DIST.
3. M/s VSL MINING COMPANY PVT.LTD.,
REP. BY ITS DIRECTOR, ANIL H.LAD,
HOUSE OF LADS, SANDUR TALUK,
BELLARY DIST.
... PETITIONERS
(BY SRI L.M.CHIDANANDAYYA, ADV.)
AND:
THE STATE OF KARNATAKA,
REP. BY RANGE FOREST OFFICER,
SANDUR RANGE, SANDUR TALUK
BELLARY DIST.
RESPONDENT
(BY SRI P.H.GOTKHINDI, AGA)
2
THIS CRIMINAL PETITION IS FILED U/S.482 OF
CR.P.C. SEEKING TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS INITIATED AGAINST THE PETITIONER ON
THE FILE OF THE RESPONDENTS IN FOC.40/2008-09
PENDING ON THE FILE OF THE CIVIL JUDGE (JR.DN.) &
JMFC COURT, SANDUR.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING
ORDER
Petitioners seek quashing of proceedings in FOC.40/2008-09 which is under investigation on the file of JMFC, Sandur, Bellary, for offences punishable under Sections 6, 24(a), (b), (c), (i)(e), (f) (gg), (h) (i), (j) 64, 64A, 81B, 73(d) of the Karnataka Forest Act.
2. The main ground of challenge by the petitioners is, 1st petitioner and his brother were granted land in R.S. Nos.35 and 35/P1 measuring 9.95 acres situate at Ramghad village, Sandur Taluk, Bellary District, by the revenue authorities and the same has been entered in the records. They are shown to be in occupation from the date of grant till the filing of the petition. Petitioners contend, they have also obtained mining leases by entering into an agreement 3 with the South Western Railways for transportation of iron ore through Ramghad station. They are required to complete loading within three hours. Petitioners were using the said properties for stocking iron ore temporarily for the purpose of transporting it to the railway station. They further contend, respondents, without authority of law, has registered FOC.40/2008-09 for the offences indicated above which do not even constitute the offences under the provisions of the Forest Act.
3. According to the petitioners, filing of complaint without disclosing omissions or commissions alleged to have been committed by them, is illegal, without authority of law and unsustainable. They have mentioned the chronology of events beginning from 10.10.1989 about the property in question. It reveals, Forest Department officers had seized iron ore, minerals and machinery from the properties mentioned above and have filed Form No.20 before the magistrate regarding seizure.
4. Petitioners have again referred to the application filed by them on 2.12.2009 under Section 482,Cr.P.C. for release 4 of ore, and the order passed by the magistrate on the same day directing release of the ore seized. On these facts, they seek quashing of proceedings.
5. Learned counsel appearing for them would reiterate the same contentions. In short, he contends petitioners are grantees of the land in question and it is a private land by virtue of Saguvali Chit issued. He submits, there were some proceedings initiated before the revenue authorities in which an order has been passed in their favour declaring them to be grantees of land. It was questioned by the Forest Department before the Tribunal, but they withdrew the action. On this ground, he submits no offence could have been committed by the petitioners, punishable under Section 24 of the Act, as it would apply only when the offence is committed on land which is reserved forest area.
6. Per contra, learned Additional Government Advocate, Sri P.H.Gotkhindi has referred to the acts of omission and commission of the petitioners which include their alleged sinister design to usurp forest land by concocting 5 documents. He assertively submits they have indulged in fabricating documents while giving the survey number which does not exist in the said village. He submits issue, as it appears, is not simple. Petitioners are guilty of creating revenue records like Saguvali Chit. He submits thorough investigation is necessary, and the forest officer has based his report on the records relating to forest land which shows the land in question is a forest land and not private land as claimed by the petitioners. He submits apart from the act of contravention of the provisions of the Forest Act, they are guilty of other offences and therefore, report is lodged which requires dispassionate investigation.
7. Keeping in mind what is urged, I have perused the report of the I.O. It is seen complainant has described the land as forest land and has based his report on the fact- finding on the relevant date. What he discovered is recorded in the FIR. Investigation had to proceed further but for the order of stay granted by this court. It is further noticed FOC.40/2008-09 was registered in 2008. If what Mr.Gotkhindi submits is found later to be correct, then apart 6 from the offences punishable under the Karnataka Forest Act, petitioners would be exposed to penal action under Indian Penal Code also. Therefore, it cannot be said investigation which has commenced is without any basis.
8. Learned counsel submits the decision of the apex court in the case of STATE OF WEST BENGAL & OTHERS .vs. SWAPAN KUMAR GUHA & OTHERS reported in 1982(1) SCC 651 = AIR 1982 SC 949 rendered by the Constitution Bench has laid down the following law:
'10. The question is as to whether the First Information Report prima facie discloses an offence under Sec.4 read with Sec.3 of the Act has to be decided in the light of these requirements of Sec.2 (c) of the Act. I have already reproduced in extenso the FIR lodged by the Commercial Tax Officer, Bureau of Investigation. Analyzing it carefully, and even liberally, it makes the following allegations against the firm 'Sanchaita Investments'. And its 3 partners:
1..
2.
3..
While considering the facts in that case, the apex court found no material was placed and therefore, that was the opinion formed. The discussion is with reference to Section 482, Cr.P.C. The apex court has also spelled out when the 7 High Court could interfere under Article 226 of the Constitution, taking note of the power conferred in writ jurisdiction, and has observed thus:
'If an offence is disclosed, the High Court under Article 226 of the Constitution will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be prevented by the court at the stage of investigation.'
9. From the foregoing discussion, a clear legal proposition emerges, and that is, the Hon'ble Supreme Court or High Court will not normally interfere with the process of investigation. It will allow investigation to reach a logical end unless circumstances are so compelling to prevent investigation being done. In fact, this decision 8 actually helps the prosecution in this case. Besides, the decision was rendered in exercise of writ jurisdiction under Article 136 of the Constitution. Presently we are dealing with a petition not under writ jurisdiction, but under Section 482,Cr.P.C.
10. Dealing with such power of the High Court under Section 482, Cr.P.C., the apex court has laid down certain norms which could be found in the judgment in the case of STATE OF MAHARASHTRA .vs. ISHWAR PIRAJI KALPATRI & OTHERS ([1996] 1 SCC 542) wherein the apex court has held thus:
'If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist, then the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides would be no ground for quashing the 9 prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not.'
11. The same view has been reiterated by the apex court in its subsequent decision in the case of STATE OF M.P. .vs. AWADH KISHORE GUPTA AND OTHERS ([2004] 1 SCC 691) wherein the apex court observed this:
'Exercise of inherent powers under S.482, when justified-Held: inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution-May be exercised
(i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice-to be exercised ex debito justitiae- to do real and substantial justice for the administration of which alone courts exist-Thus, without going into the question of conviction or acquittal, where on consideration of allegations in the light of the statement made on oath of the complainant it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, Held: the proceedings cannot be quashed-But, where it appears to the 10 contrary, Held: interference by High Court would be justified-High Court to refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy-more so, when the evidence has not been collected and produced before the court and the issues involved are of magnitude and cannot be seen in their true perspective without sufficient material-yet no hared-and-fast rule can be laid down for exercise of this extraordinary jurisdiction.' Again it held:
'...No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist).' ...
Applying the said principle, power has to be exercised only sparingly and cautiously.11
12. In this view, I find no merit in the petition. It is rejected. However, if petitioners have any legal remedy to seek discharge, they may do so at the appropriate stage.
Sd/-
JUDGE vgh*