Karnataka High Court
Sri.Shrenik N.Baldota S/O Narendra ... vs The State Of Karnataka on 24 February, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD ©. DATED THIS THE24DAY OF PEBRU: ARY "ini ---- BEFORE THE HON'BLE MR. JUSTICE ANAND B YRARE DDY CRIMINAL PETITION.NOS 7887/2009 c/w CRIMINAL PETITION. N. NO. BOA 1/2609 IN CRIMINAL PETITION NOS.7887/2009.- BETWEEN: 1. Shri Shrenik ? NBaldota, S/o Narendra Kumar A. Bal de ta, Aged about 40 years, Manag xing P 'artner, 7 M/s Ramgh ad Minerals and Mining -- 'iP rivate L imited, ; Ba. Ideta E AAC Lay a . Abhérak.Bal dota Road, "Yospet -- 583-202, Bellary. "2, "Shri Medha Venktaiah, : ; S/ Oo Mi Obayya, -Aged about 65 years, Baldota Enc! lave, Enon Pad Abheraj Baldota Road, Hospet -- 583 202, Bellary. 3. Shri K.R.M.Reddy, S/o K.G.Rama Reddy, Aged about 53 vears, oo Baldota Enclave, Abheraj Baldota Road, Hospet -- 583 202 an 7 oe Bellary District. -- » PETI TIONE RS (By Shri M.M.Swamy, Adv.) AND: 1. The State of Karn atuka,. Represented by its State Publ ic Prosect utor, High Court.of Kar ataka, . ve Dharwad. tv The Range Forest Officer: Sandur Range, 5 Bellary District. .. RESPONDENTS (By shri. K. B Ad hyapak, Additional Government Advocate) This ¢ Criminal Petition is filed under section 482 of the _ Code-of Criminal Procedure, praying this court to call for the ., "records in', CC NO.290/2009 on the file of the Civil Judge - ( Jun' or Divi ision) and JMFC, Sandur and ete § IN CRIMINAL PETITION NOS.791 I ae) i 2009 BET ho WEEN: M/S Ramghad Minerals and Mining Company Limited, Baldota Enclave, Abhera] Baldota Road, Hospet -- 583 202, Bellary District Represented by its Deputy General Manager (Mines) Shri Nagesh Shenoy, Aged about 41 years. Shri Tapas 'Chattopadhay,. ~ S/o late HK. C rattopadhay. Aged about 55 years, ~~ Baldota En ne clave... Abhergj Baldota Road, lospet £583 2 202, Bellary y District. .. Shri Nagesh Shenoy, «S/o M.G.Shenoy, Aged about Aly ears, 'Baidota Enel ave, Atheraj Baldota Road, Hospet = 583 202, t "Bellary District "Shri M.Sathyaprakash, S/o H.S.Mohan Rao. Aged about 30 years, Baldota Enclave, Abhera} Bal dota Road, Bellary District. _ PETIT! JONERS a (by Shri M.M.Swamy, Adv.,) oe AND: |. The State of Karnataka, ; 7 Represented by its State Public Prosecutor, High Court of Karnataka, Dharwad. i) The Range Forest Officer, Sandur Range, ee Bellary Djstrtet, ~~ eS ss ..RESPONDENTS (By Shriv RvB. Auhyaj Addi tioria rGovernment Advocate) This . Criminal: ~Petinic or. is filed under section 482 of the Code of Cri rminal Proceduré, praying this court to call for the records in C€_NO, 2960/2009 on the fil eo the Civil Judge - (Junio: Div ision) and JMF C, Sandur and etc., These "petitions having been heard and reserved on 18, 2,201 L coining: 'on for pronouncement of orders this day, the court delivered the following:- ORDER
These petitions were heard together in view 'of the fact». that the same are filed under the.same set of facts and", circumstances and involve the s same iSSUeS:,
2. In the first of these petitions, the petitioners represent M/s Ramghad Mine als and Minin ne Private Limited (Hereinafter referred to as . KMPL "for brevity), a company incorporated tinder the. Companies' Act, 1956. Petitioner no. | isa Dit rector of xe "the co ; Siiipany. Petitioners 2 and 3 are said to be the authorized sign torie ies sof the company in respect of certain specified activites. 'of the" company. It is claimed that 'petitioners 2 2 and 3 3 are not e >mployees of the company. | ~ RMI holds a mining lease under the Government of Karnataka, to-inine iron ore as per lease deed no.ML 2451, in "respe ect of 24.28 hectares of land at Venkatgiri village, Sandur Taluk, Bellary District. The said lease is for a period of 20 oe Lae years, with effect from 30-1-2003. Petitioner no.| asserts that though he is one of the Directors of RMPL., 1s not in charge of the day to day affairs of the mining activity. The s sane is ves tea 7 with the Mines Manager and his statf appointed by Ri nti F 1. It is stated that the Range F orest Orficer, Sendiur Rane, had on 17-11-2006, alleged that the pe stitione s had: dumped waste burden generated byits mines. in the. forest aia, though the same had occurred on é scant of » potion of the dump having, slid due 10 'hawural alse. Tes was also said to have been alleged that the petitioners ad vot 'taaintained the boundary stones, demarcatng th leased area. The petitioners claim that a penalty of, Rs.2 lakh "was promptly paid and the dump
- stabilized." But, thre. Deputy Conservator of Forests is said to "~y shove e issued a Show- Cause Notice dated 23.12.2006, alleging encrodchmerit- of 2.50 hectares of forest area, inspite of the fa "petitioner having paid the penalty and having rectified the mishap. Thereafter, an enquiry was said to have been .conducted by the Assistant Conservator of Forests under J Section 64-A of the Karnataka Forest Act, 1963 (Hereinafter referred to as the "KF Act', for brevity). It was said.ta. have been found as a fact that there was no mining activity *. undertaken in the area comprising 2.50 cotare S, but howe ever, the petitioners were required to -- afforestation: in the said area and to hand over the same to the Range. Forest Officer on such compliance. This is. nite ie prompily carried out by the company at ¢ consider: able e experts It is contended th at the present lea . renewed in the year 2005, oth effect from ine 'year 2003). RMPL was required to enter'idte an aureement in the year 2007 to conduct mining operations in, an area of 26.36 hectares, subject to the _ same: being an demarcated by the authorities. A joint * survey is said 110 hav e been conducted by the Department of Mines' and "Geology and the Department of Forest as on "oe 27.7 .2067 'dnd the e said area duly demarcated. It is asserted that ~ there has been no complaint of encroachment or other illegal .activity since then.
z z On 31.5.2008, however, the Forester, Sandur Rang ige, had registered a case in case bearing no. FOC 45 / 08-09. alleging that RMPL and others, including the petitioners chad encroached an extent of about [4 hectares. of the forest area for'. urposes of its mining activity. | This accord ing to the petitioners, is in the wake of "the L ok Ayukta, ha no. subi ninitted a report to the Government 0 the ef that' there was encroachment by RMPL to the | extent of' 7.32 he: stares, It is the grievance of the peri a . neither 'the report of the Lok Ayukta nor the report of the Forester is on the basis of any survey, "preceding. «the . satite, to the knowledge of the petitioners. © Mt is con tended | that similar allegations had been made "ARE aitist ot he er lessees in the region, which was oh he subject matter of challenge ina series of writ petitions, in the writ jurisdiction ca this. court, in WP 8034/2008, WP 8035/2008 and 91/2008. It transpires that by virtue of an interim order .therein, the authorities had released machinery and vehicles } "atfences punishable under Section 2(7)b(iv), b(1), 24(ay(e)( D(g) seized from the premises of the respective lessees. It is further stated that the conservator of Forests had, by an order dated 28.6.2008 extended the benefit of the said direction ef this court. - to RMPL as well. The said writ petiticns are said to be pending - | disposal as on date. It is further stated tha t + yet another . vert | petition in WP 3812/2009, ern -an identical first information report, was dec cided by | o Division Bench of this court, by an oe dated 13.4 2009, dizecting the Forest Department to conduct ae "suivey and inspection of the alleged encroachment, in che preseice oft e lessees, the Controller of Mines, the tedlan Buren of Bes Bangalore, along with a nominee oft he > Direct tor G enieral . Survey of India and thereafte . to take apbropris é-action as to the alleged encroachment. ~Itis in this.back ground that the Court of the Civil Judge and. JMFC).Sandur, by an order dated 18.5.2009, taken cognizance of allegations against the petitioners and others of petitioners have challenged the maintainability of those proceedings.
"aS
2. In the second of these petitions, the petitioners. are | 2 RMPL and its managerial staff. The said-petitioners have-alsa questioned the tenability of the very, same'criinina! proceedings.
3. Shri Madhusudhan Naik, Senior Advocate. appearing for the Counsel for the petitioners, would canvas the following contentions : | The basis Vou the proceedings is apparently a report said to have been cubiitted to the Government by the Office of the Lok Ayukta.as. to "alleged "encroachment of forest land by _ several, lessees in the region, including the petitioners, the said a
- report. Is, 'said. to be pending consideration before the Goverment aid therefore could not have been acted upon, nor ° . could the "same inspire the present complaint against the _ petitioners, It is for this reason that the Division Bench of this t court had specifically directed that any further criminal action ought to be preceded by an independent and impartial survey , in the presence of the lessees. That exercise not havi! 1g, been completed the criminal action is not only pre emature 'in { fraught with mala fides, but also an affront to the direc! ction issued | by a Division Bench of this court.
It is further asserted that this Court, having taken note of the above circumstance has,' 1D. SO. fara as step petitioners * area IS concerned, has b by order dated 5: $.2 LO directs ed as follows:
"Heard.
Tre e petitioners, submit that there is no mining in the forest area and. the mining' was carried out only in the leased area. The petitioners have disputed the aireal survey conducted-on the ground that it has been conducted without there being any notice to "them. It is alsu-submitted that there is no illegal "mining. > The respondent authorities to conduct the ground 'Surv 'ev alter issuing notice to the petitioners if not "already: conducted. by the I eput y Conserve ator of Forests. Bellary Division. Bellar y. in the presence of Controller of Mines. Indian Bureau of Mines. Bangalore. and ta submit a report regarding the extent of area leased out and the extent of illegal mining done. if any.
3 The petitioners have to bear the expenses for the conduct of the survey.
A copy of this order be made available to the %.-- learned Addl. SPP for compliance." --
a) oe OD said direction.
It is further alleged that though the omic 3 c of the Lok Ayukta had in its report. itaméd several, fessees 'as having committed illegalities, the. -responden ts have Su ngled out the petitioners in- proceeding past haste - ainst them -- the said action reeks. of "a detherate vendetta by rival competitors, who occupy high positions in the. present political dispensation of the Govern ment.
_Tt is. further contended that insofar as the petitioners In Lg the firsi-of these - petitions are concerned, they are not involved with the day to day management of the mining activity of "RMPL and the allegations would not indicate their direct &> "involvement in the illegal acts complained of and therefore on 1 E . thé principle that even if the allegations in the complaint go ba"
Ncoad unrebutted, no case would be made out against the said petitioners, the proceedings would have to be quashed. as against them.
It is contended that in the feee..of the joint. survey' conducted after the renewal o Fthe leasé.in favour of RM ob in the year 2007, with no adverse indie of any encroachment or dispute regarding the boundaries 'ot the leased rea, the allegations of encroac scone the yea 300 |, would prima facie demonstrate tike- wil id allegat ons 61 on the-basis of which the proce eedings doe vines It) s pointedo < ubthat the Koper of the Lok Ayukta and the spot mahazar said wi | nave te ch 'awn up at the time of filing the
- false ease do not tally and ar are diametrically different. The same "cannot, be reconciled at all. The said Mahazar is not even sighed by any indepen ndent witness or any officer of RMPL and 'would hence be unreliable Qa) TASS ON IR NINN INHNNeENAS enn t The learned Senior Advocate would raise further legal contentions, to the effect that the offences alleged agai inst. the 2 petitioners are non-cognizable. Secondly, the Complain iss the Forest Department, through its officers... Avnton'ie dra :
ee » Section 62 A of the KF Act which reads as follows. ~62-A. Powers of Forest Officer in the-matter of Investigation ~ (1) Any. Forest or Picer not below the rank of a Range Forest Oreer and -avithin such specified area as the 'State Government may. by notification, specify. may as regar ds offetices under this Act exergisé powers conlerredl-on an officer in-charge ofa police. station by. the provision of the Code of Criminal Procedure. | 073 -
P rovided that any "such power shall be subject to such esirictions: and 'moiffestions if any as the State Gov ernment may Specify.
- 42)y. aie purpose of Section 156 of the Code of 5 inal Procedure. 1973. the area in regard to which rin "the-rorest Officer is empowered under Sub-section { shall-be deemed to be a police station and such officer 'shall be deemed to be the officer in-charge of such station. 7 Las Cobh It is henee urged that the said section does not indicate that in respect of a non-cognizable offence permissiosy.or.the 6 direction to investigate could be issued to an Officer of the. Forest Department. The same would not be j in consonaince with Section 155 of the Code of Criminal Procedure, 1 973. which contemplates that such inv estiga thon 4S carried Out: bya Police Officer, not withstanding "that for pitposes of Section 156 Cr.P.C, the said Section 62-A "oes, contemplate that any forest officer, not below the rank of the "Range forest Officer may, Oo when empowered, 'act as.th Officer in charge of a police i station. in this regard' reli ane is placed on a decision of this ge court in the ease. of "S. Murr? v. State of Karnataka, 2004 (6 Kar. bi J. F15. Mt is conte sade sd that in view of the approach of "08, atest, Depeaipen in seeking to forge ahead with the 1S criminal procee edings notwithstanding the above circumstances which required the said Department to comply with specific directions - an impartial and unbiased attitude is not forthcoming and therefore, there was a duty cast on the B Magistrate to consider the implication of granting permission to the Range Forest Officer to conduct investigation of the alleged offences, which the very Department is appareatly "under pressure to foist on the petitioners and nail them down to ite It, is hence contended that the Magistre ate | his discretion G ae ght to have ensured a semblance of impartiality by entrusting 'the investigation to some ot! ler, Ww orthy . fo was snot iinpelled by such motivation.
It is further ¢ ¢ 'ontend: ed shat tie lease de ed in favour of the petitioners is governed by the provisions of the Mines and Minerals (Regulation and Develop ment) Act, 1957 (hereinafter referred to as the" MMR» Act for brevity) and the Rules
- framed thereunder». ; The demarcation and handing over of the 7 lease eda area; as already stated, is in accordance thereof. There is no proceed vihereby that entrustment has been annulled or i found te be erroneous. In which event, the respondents are not H "ina pos sition to invoke the provisions of the KF Act and allege cas _that the petitioners have encroached on forest land if the S | i 6 g S wed as ro petitioners continue to be in possession of the leased demarcated under the lease deed. Section 116 of the KF. Act is hence a total bar, which the respondents have transgressed:
Hence, the entire proceedings are vitiated.
4. The learned Government: Advoeate: on the other hand, seeks to justify the pending proceedings, It is contended that the proceedings have been initiated « vrei it wa 28 noticed that the petitioners were excavating iin an area nbajond the leased area.
Accordingly 'the. secaind ees had by a letter dated "4 / a 2008. réported the-.matter tothe Deputy conservator of Forest. It-was also eles ar from, th ye said letter that all such illegal activity, was stepped under ie lease deed of the petitioners. It 'is. contended™that the State Government had embarked on 'et pre evention" f large scale encroachment even since the year 2005" a.iask-force was constituted to check illegal mining and fe ow x a! yt ~~ to review 'action take the officials of the Department of a Mi nes sand ¢ Geology and the Department of Forest. 3 In a continuing effort, the Government by an order dated 10.2006 directed a Joint Survey of all mining leases in Hospet, Sandur and Bellary regions by a spee cial | 'jeans, consisting of the Conservator of Forest, the Joint. Ditecior, . Department of Survey Settlement and Land Rec sors 4 Joint Director, Department of Mines ait Gcdlogy, Eniermven Officer, Karnataka State Po lution Coie tro! Board, ete. It is contended that the State. goverriment., by its order dated 12.3.2007 and 9.9.2008, that alb eases of encroachment relating to the aforesaid, areas be handed ovet to the Lok Ayukta. Ite is s conte nde od "that it' we jas pursuant to the report of the Task force and a pieatiag report of the Lok Ayukta team, the ., Cons sivator of Forest decided to initiate proceedings against : the erring entities including the petitioners. Lis pointed out that reliance sought to be placed on the "directions igsued by a Division Bench of this court in its order 'dated 13.4.2009 in WP 3812/2009, is misplaced for the reason that the petitioners were not parties to the same. Further, it has 2B fo been specifically observed that the report of the Lok Ayukta and the sketches attached thereto be the basis for prose om the FIR. Hence, the contention that the criminal processing are in violation of the said order is incorrect, and misle: ading. The charge--sheet is said to have a eer fil led & Su bs qu cee the report of the task force which stain ds merged with the report of the Lok Ayukta. The reports vo hah mci - the assistance of highly _ professionals, using hi-tech state- of-the art equipsnenit, <ind 'Is aiiirely. fool-proof It is hence contended thai the proceedings are preceded by clear findings of the commission of offences alleged by the petitioners, who were in charge of ihe afiaits of | the company at the relevant al of ume ;
"ti is | further contended that in so far as the reliance sought oh ple acec od "an 'he reported decision in Murari's case supra, e Forest Officer to OG » with reference > to the competence of the Rang investigate and submit a report on the basis of which cognizance is taken, the learned Government Advocate would 20 contend that the judgment is silent as regards the scope of Section 62 A of the KF Act. Attention is drawn to the.relévant portion, which reads as follows :
"At this stage. it is also necessary 10. mention thet statutory provisions of Section 62-Al I. of "the Karnataka Forest Act lay 8 down phat a-Range: 2 "Ores! Officer shall be deemed to bé ad "Police Officer. for "ine - purpose of Section | 20 of the < PC In the case-on hand, this Court has. hee ah cose. ire statutory sprovisions of Section J 155. oj "the Cr. "PC. Sach being the case, the State, in this: regurd, cannot take shelter under Section 62- A ort the Kuarnatal. a Forest Act to wriggle out 6 "che situition™ emphasis supplied) The. le -arned 'Gove ernment: Advocate also brings to the attention of the court. 'not 'fication dated 1.7.2010, issued by ihe Govettimeént of Karnataka which reads as follows - "NOTIFICATION "
The Government of Karnataka hereby notifies the areas "under the territorial jurisdiction of the Range Forest *, Officers of Karnataka Forest Department including wildlife to be the specified areas under Section 62-A of the Karnataka Forest Act 1963 for the purpose of offences under this Act to rw) exercise powers conferred on an officer in-charge of a police i] station by the provision of the Code of Criminal Procedure.- 1973.
This order is deemed to have come into eft ech froite. the date of issue of amendment to this. Secti ion 1 the Nel 20° of 2000 Le. 04/10/2000.~ It is therefore contended that there-is no infirmity in so far as the proceedings are concerned ¢s the conterment of power on the Range forest Officer is-in respect.c Of & 'all 6 offences under the Act and not metely:c cognizable, offences. It is hence submitted that the petitions be' er ismissed with osts. a] de Oat 1¢ abo 'e. rival. contentions, the points that arise for consid eration' by thi s court are the following :
the petitioners can draw sustenance from the me ogo md OO, re i wel Cy im ot order-dated: 13-4-.2009 passed by a Division Bench of this court "in WP 38/2 (009, to contend that the criminal proceedings are Dremauire without compliance with the requirement of a co omprehensive survey as directed in that proceeding? Q9 iL. Whether the said criminal proceedings could recommence without compliance with the direction issued 7 these petitions, by an order dated 5.8.2010, to coi a suivey of the leased area and the disputed area, in te rms. s there reol Sf and without the survey and demarcation of the le ase area. the 7 year 2007, by the competent authorities? iil. Whether a prima' fac le case owas made out against the petitioners in Criminal Petition 7887/2009 in order that process Q could be issued against them.? ~ iv. Whet hee the. leartied Magistrate could have granted permission to the Range" Fore est. Officer to conduct an : investigation and submit the final report, or the Charge Sheet, Sin terms of. Section 62-A of the Karnataka Forest Act, 1963 read with Section 155 of the Code of Criminal Procedure, i od In so far as the first point is concerned, it is not in dispute that the petitioner in WP 3812/2009 was one of the entities, apart from the petitioner company, against whom there was'en"
adverse finding in the Report submitted by the Lok Ayukia, : dated 18.12.2008. on a reference made. by. the Government by soy its orders dated 12.3.2007 and 9,5.2008 oa rhe: allegations against the petitioner therein were almost identical, as against the present petitioners -- the First Information: Report and a seizure order were "under 'challenge. 'The points that arose for consideration betore the Division Bench were : © "(1) Whether the report of the Lokayukta can be the. basis for the impugned FIR. dated 3.2.200¢ and the order of seizure dated 2.2009 Cbd ~ (ID. Whether it is proper for this Court © exercise the power of judicial review under Article 226 of the Constitution of India to quash the First Information report dated 3.2.2009?
"s, Genducted.in the joint presence o (if) Whether the second respondent -- is empowered to seize the machinery.:
equipment. tron ore and vehicles * | belonging to the petitioner. by an' order dated 3.2.2009. for having coimimiited. illegal mining operation, in the forest." area? a | (IV) Yo what relief (He. petitioner is entitled ~ .
to?"
The answers. were, that t he Lok Ayukta's Report and the satellite sketch. coli be the basis er nM ing the FIR and to pass the order of Seizure This ; conclt sion was in the light of the learnec Ady sia ¢ General having stated that the appropriate authorities were yet to vondue a further investigation, which . would be, completed 'ym-due course. And his further statement i that wh le deciding _the extent of encroachment, the petitioner therein wouldbe placed on notice and inspection would be pep, * the petitioner therein and ~.other-named, independent authorities. Next it was held that there was no warrant to quash the First Information Report, when the State intended to cerry.out further investigation as to the illegal mining and ther satel 40 proceed in accordance with law. a Further, the petitioner therein was held entitl ed ina conditional return of the seized ar icles and { machinery, pending a joint survey and further r praceedin ngs:
The respondetits were further directed as follows "DeputyeC onservater of Forests. Bellary Division. at. shall inspect and survey the "tothe petitioner. in' the presence of the petidorer?the' Controller of Mines. Indian Bureau of Mines. Bangalore. along with the nomince not "Felow the rank of theDeputy Director by the Director vey of India. and take appropriate decision as encroachment by the petitioner with reference.*to the survey records and other relevant material available and documents produced in this regard. If amy encroachment of forest land is found. the respondents are at li >ss the damages caused on | i account of such illegal mining outside the leased out mining area and recover the same from the petitioner." 26
It is, therefore, clear that in the opinion of the Division i IES Bench, though the proceedings before the criminal col vecould be continued, it was subject to further investivation 'and . inspection by the competent authorities 5, as _ directed." | 'Though the Division Bench did not choese to issue any direction to ihe Court of the Magistrate, in Ww hich the | "ri imine il proceedings were pending, the effect of the eivections rd that the State be enabled to vorrect couse of action, if indeed there was an infraction of the law by! the petitioner therein. As. the Sone case on hand have sought to raise a primary centonta thet, no survey of the leased area or _the di isin uted area, has been conducted, in the presence of and . with novice t-te petitioners at any point of time after the ~_ onduct 'ed in the year 2007 when the competent uthoritic es demarcated the leased area, on renewal of the lease in favotr of the petitioner company, and as this position is not dispute sd, there is no reason why the petitioner ought not to be given the benefit of the above order of the division bench. Further, this court having directed that the respondents, to conduct a ground survey of the leased and disputed, in terins-oF 7 the order dated 5.8.2010 and the ame, nd having "been :
questioned by the respondents would preciude the zespondans from taking any further steps i : make fa ace OF a serious lacuna, which would render the prosecution afittility. ena 0 ie) In so. far as the Second point for. consideration concerned, whe need: for compli ance is necessary not only because the- petiti sioners sand oit-the same footing as the petitioner in the aforesaid W P "ee but also in view of a glaring admission as to the Serious doubt on the very basis of ZY ihe complaint' This i: is evident from the followi ing averments in oF the Statement cf-abjections filed on behalf of the Range Forest It is no doubt true that the mining lease me 0) ranted in favour of the first petitioner company was renewed in the year 2005 and an agreement with the E company was executed on 26.06.2007. followed by issuance of work order by the Deputy Conservator of:
Forest on 18.07.2007. The work order was subject to ~ the condition that mining operation shall take place ~~. only after surveyed and demarcated by the authority. = Accordingly. survey and demarcation was condueted.» on 27.07.2007. However it is pertinent to sebmit that during the course of the survey,.survey téam ~~ of the forest department wa: mislead: by the officials of the petitrener company -by wrongly including the encroached area 'inte the lease area. Thus the _ petitioners Yaanaged to get their encroacked area included in the iease area." area in terms.of the-survey of the year 2007 has been set at naught..in order that-the respondents could proceed on the basis ot.such ctker-survey conducted either by the Lok Ayukta's team. or "by.
_ knowledgé of the petitioners.
W such.other authorities as asserted, without the 29 It is also to be kept in view that it is inexplicable that the Forest Department should take the view that the joint 'SUPVEY conducted by the very Department of Fo orest' and 2 the Department of Mines and Geology jirthe. year ete demarcating and handing over possession 'of the leased area was erroneous and hence could no longer be relevant. "This was apparently pursuant to the, lease | deed and an "agreement executed by the State Gov er ninent in terins of th ee MMRD Act and the Minor Miner a |. Coicestion Rules, 1960. The measurements ad dencaton have not been annulled or found to be incottéctin any further enquiry or proceedings. In which ev ent: the findings sat 'any survey conducted by the Lok Ayukta or the "Task FF Force" cannot be the basis for the Forest . Depart, ment" wo invoke the provisions of the KF Act, to pr "os ocite the x -titioners in the face of Section 116 of the KF _ Act, w hi ch teads as follows:-
"Nothing in this Act shall be deemed to affect the operation of the Minerals (Regulation -- and Development) Act. 1957 and the rules. made thereunder. and the provisions of this Act shall be in addition to and not in derogation of the provisions of: the said Mines and Minerals (Regulation ahd». Development) Act, 194577
6. In the light of the above, it: cannot' be said-witht any certainty that the allegations in "he compiaint ees a prima facie case made out as to the commission of the alleged offences by the petitioie espec ally ; the petitioners in Criminal Petition Nio.7887/2009. in the light-of Section 305 of the Code of Criminal 'Procedure: I 973: . But, however, the Court of the Magistra te isn not privy to these additional tacts which are highlighted before tis court Ta that extent, it cannot be said that the Magisivate -has, on the face of it, committed any sireguie rity" in the absence of any contra material being on rec 0 rd. | -
im é answ: ering the fourth point, it is necessary to keep in 'view the iSilowing :
OS In case of a non-cognizable offence, generally speakin a police officer cannot arrest without a warrant, and sceohdly, such officer has neither the duty nor the power to invest igate into such an offence without the authority given by' a Judicial Magistrate. Exceptions apart, the waheebiacineo considered more in the nature of private rent ie the collection of evidence and the proseeui tion of the ffender are left to the initiative, and efforts of private citizens. However, if a ride icial | Magistrate considers it desirable that a non- -cognizabie cas | Should be investigated i into by the police, he can onde hep lice to do so. In that case the police officer will have alf- the pow ers. ie "in Respect of investigation (except the _ Power 10 arrest witout warrant) as he would have exercised if the case were & cogni uzable one.
le wil | be seen that the Code has not given any test or criterion to determine whether any particular offence is oo cogaizable or non-cognizable. _ It all depends upon whethe ae a shown as cognizable or non-cognizable in the First Schedule of the Code. That schedule refers to all the offences under the Indian Penal Code and puts them into cogn sizable and. noi cognizable categories. The analysis of the relevant prov ions oF the schedule would show that the basis of thd categor sation rests on diverse considerations. (1) Geral speaking all serious offences are considere od as ; cogniz 7 rable. The seriousness of the offence depends upon the Sinton punishment provided for the offence. By and' large "ofl@nces punishable with imprisonment for. "not le les sah thiee years are taken as serious offences' and we ma we cout sable. In case of serious offences like murder eth cae ng coins etc., prompt police
- action for the e arrest of the offender and the investigation into the case is, hight by neces sary for successful prosecution; therefore it is advisable to treat these offences as cognizable offences. (2) ye
-.... However, certain offences, though serious according to the o> abovesaid criterion, have been considered as non-cognizable only. (3) As a broad proposition it can be said that offences E 'ed ae which are not serious and are punishable with less than three years' imprisonment are treated as non-cognizable offences. These offences are mostly in the nature of private: wrongs es ordinary cases of assault, intentional insalt, sinmiple nu, defamation ete., (4) As it is not possible to list all si ces, under all the laws other than tie" Penal Code because some offences would be created ty enacting new laws and it might be difficult to amend the schedule 'every time such new law is First Schedule takes 3 'veneral rule whereby all offences punishable. with impr sonment for three years or more have been 1 made cognizable aid cthers non-cognizable. The pritary.rule "is that no police officer shall "niwvestigate an non-cognizable case without the order of a nagistrate ie av in iW ower to try such case or commit the case for trial, '5.155(2)]. The Code does not expressly give power "to 2 magistrate to order investigation into a non-cognizable case. Such a power, however, can be implied from the wording aN 'ad an of s.155(2). The Code does not give any direction or guidance to the magistrates as to how and in what circumstance 2S. ae power to order investigation 1s to be exercised. CeHtainiyethe-. power is not to be exercised arbitrarily or "capriciously. Probably the magistrate is to consi he tality of the circumstances and consider whe! ther it woitl id not-b be: j , ust and proper to ask the police invest a noi cogniaibié case. (See: R.V.Kelkar's Criminal Procedure: Third Edition) In the, Jnstant, ease, given. the. 'circumstances that are brought to the attentic on ot "this court t( though not to the attention of the Magist rate), itis elearly.a case which ought not to have been entrusted to. the Range Forest Officer for investigation, "seven. iF it could be said that if Section 62-A empowers the "Range Forest O fficer to investigate a cognizable offence -- by implication he' would be competent to investigate a non- _-- cognizable offence as well -- when acting in the capacity of an
-. officer in charge of a police station ~ and his forest division "being his police station. But the discretion to permit that 4 ya ost investigation is with the Magistrate. This court is of the opinion that the present is an ideal case where "™.the "investigation" ought not to have been permitted fet-more-then *. one reason, to be carried out by the Range Forest Officer. -- For the above reasons, the-petitions are allowed. The proceedings pending before the Court.of the.. Civil Jud (Junior Divisi on) and J MEC, Sandar inc C.No.290/2009 are hereby quashed.