Himachal Pradesh High Court
Rajinder Pal vs State Of Himachal Pradesh on 11 January, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. 120 of 2007 a/w Cr.R. No. 150 of 2007.
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Reserved on : 05.01.2017.
Decided on: 11.01.2017.
Cr.R. No. 120 of 2007
Rajinder Pal ....Petitioner.
Versus
State of Himachal Pradesh ... Respondent.
of
Cr.R. No. 150 of 2007
Jiwan Kumar ....Petitioner.
Versus
rt
State of Himachal Pradesh ... Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes Cr.R. No. 120 of 2007 For the petitioner : Mr. R.P. Singh, Advocate. For the respondent : Mr. V.S. Chauhan Addl. AG.
Cr.R. No. 150 of 2007For the petitioner : Mr. Rakesh Thakur, Advocate.
For the respondent : Mr. V.S. Chauhan Addl. AG.
Ajay Mohan Goel, Judge.
Both these revision petitions are being disposed of vide common judgment as both cases arise from the common judgment of conviction passed by the court of learned Judicial 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 2Magistrate 1st Class, Una, Camp at Amb, in Criminal Case No. 150-I-99/140-II-99, dated 24.01.2004 and the appeals .
filed by the accused against their conviction were also adjudicated upon by the learned Appellate Court (Learned Additional Sessions Judge, Fast Track Court, Una) by way of common judgment passed in Criminal Appeal No. 3/04, RBT No. 35/05/04, dated 27.08.2007.
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2. Facts necessary for the adjudication of the present case are that as per prosecution on 11.06.1999, at about 3:15 rt a.m., PW13 Sub Inspector Kailash Chand was present at place Churu alongwith PW12 HC Suresh Kumar, Constable Surinder Kumar and Constable Harbans on patrolling duty in a vehicle bearing registration No. HP-19-8200. In the course of patrolling duty, the police party found a Maruti Van bearing registration No. HID-4745 coming from Nandpur side.
The driver of the vehicle did not stop the same despite being signalled to do so by the police party and drove the vehicle towards Una side. In the meanwhile, one Scooter bearing registration No. HP-20-2340 appeared at the spot and its rider informed the police party that in the said Van there were 'Khair' logs. On the receipt of said information, said Maruti Van was chased and stopped. The driver and one of the two ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 3 other companions made an attempt to run away after getting out of the Van but were nabbed whereas one person managed .
to run away. The persons so apprehended disclosed their names as Rajinder Pal and Jiwan Kumar and further disclosed that the other person was Dinesh Kumar. During the search of vehicle, 14 logs of 'Khair' wood were recovered from the same. As accused failed to produce any permit, of accordingly, Rukka Ext. P-A was prepared and sent to the police station, on the basis of which, FIR Ext. PN was rt registered. Site plan of the place of occurrence was prepared.
'Khair' wood logs alongwith Maruti Van and its documents were impounded vide memo Ext. PB. Scooter which was being driven by Jarnail Singh alongwith its pillion rider was also taken into possession. The incriminating articles were taken into custody vide memo Ext. PG. As per prosecution trees were allegedly felled from the private land of Shiv Dev and Ram Dev and accordingly demarcation report Ext. P1 of the place from where trees were allegedly felled was obtained. Site plan Ext. PW13/B of the place of occurrence from where trees were felled was prepared. Statements of witnesses were recorded.
::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 43. After completion of the investigation, challan was filed in the court and as a prima facie case was found against .
the accused, Charge was put to them for commission of offences punishable under Sections 41 and 42 of Indian Forest Act read with Section 379 of Indian Penal Code (for short 'IPC'), to which they pleaded not guilty and claimed trial.
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4. Learned trial Court on the basis of evidence led by the prosecution both ocular as well as documentary, held that rt recovery of 14 logs of 'Khair' wood being transported in Maruti Van bearing No. HID-4745 without any valid pass or permit stood proved by the prosecution and on these bases, it held that prosecution had proved its case under Sections 41 and 42 of the Indian Forest Act against accused Rajinder Pal and Jiwan Kumar. Learned trial Court further held that involvement of the accused persons in commission of offence punishable under Section 379 of the IPC could not be proved by the prosecution as there was not even an iota of evidence on record from which it could be inferred that accused had in fact cut and fell trees in issue. On these bases, learned trial Court acquitted the accused for commission of offence punishable under Section 379 of IPC. Learned trial Court ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 5 sentenced both the petitioners to undergo simple imprisonment for a period of six months and to pay a fine of ` .
1,000/- each for commission of offences punishable under Sections 41 and 42 of the Indian Forest Act.
5. Feeling aggrieved by the judgment so passed by the learned trial Court, independent appeals were filed by both the present petitioners before the learned Appellate of Court.
6. rtLearned Appellate Court vide its judgment dated 27.08.2007 while upholding the judgment passed by the learned trial Court dismissed the appeals so filed by the present petitioners. While arriving at the said conclusion, it was held by the learned Appellate Court that on the basis of statements of prosecution witnesses, involvement of appellants in the case stood proved beyond reasonable doubt and there was no scope to disbelieve the prosecution story simply on the ground that only official witnesses had supported its case. Learned Appellate Court also held that learned trial Court had properly appreciated the evidence on record with detailed reasoning and the findings so returned by the learned trial Court were sustainable and there was no reason to interfere with the same.
::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 67. Feeling aggrieved by the said judgment, the petitioners have filed the present revision petitions.
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8. Learned Counsel appearing for the petitioners argued that the judgment of conviction passed against the accused by the learned trial Court and upheld by the learned Appellate Court is perverse and not sustainable in the eyes of law as both the learned Courts below have erred in not of appreciating that there was no proper Charge framed against the accused which went to the core of entire issue and in fact rt rendered the entire trial initiated against the accused as void abinitio and bad in law and the judgments so passed on the basis of said illegal trial as perverse. As per learned counsel for the petitioners, both the learned Courts below erred in not appreciating that in the Charge, which was put to the accused, there was no reference of violation of Rule 20 of Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 framed under Sections 41 and 42 of the Indian Forest Act, which as per learned counsel for the petitioners was necessary especially because Section 42 of the Indian Forest Act is merely an enabling section empowering the State government to prescribe by Rules, penalties of imprisonment or fine or both for contravention of Rules framed under ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 7 Section 41 of the Indian Forest Act. In these circumstances, according to learned counsel for the petitioners, it was .
necessary for the trial Magistrate to state the precise Rules framed under Section 41 of the Indian Forest Act, for the violation of which the accused were required to be punished and therefore, Charge was defective. It was submitted by learned counsel for the petitioners that as the entire of proceedings initiated against the petitioners were defective and as this very important aspect of the matter had not been rt taken into consideration by both the learned Courts below, therefore, on these bases, he argued that the judgment of conviction passed by the learned trial Court and upheld by the learned Appellate Court deserved to be set aside being perverse.
9. Mr. V.S. Chauhan, learned Additional Advocate General, on the other hand, argued that there was no merit in the contention of learned counsel for the petitioners as both the learned Courts below on the basis of material on record had held that the petitioners were guilty of the offences for which they were convicted and as there was no plea available with the petitioners on merit to assail the judgments so passed by the learned Courts below, therefore, in the revision ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 8 petitions, the petitioners had come out with this contention of the proceedings initiated against them being void abinitio, .
which contention of the petitioners, according to Mr. Chauhan was totally incorrect and not sustainable in law.
On these bases, it was prayed by Mr. Chauhan that there was no merit in the present appeals and the same be dismissed.
10. I have heard the learned counsel for the parties of and also gone through the records of the case as well as the judgments passed by both the Courts below.
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11. Before proceeding in the matter, it is relevant to take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction of this Court does not extend to re-appreciation of evidence. It has been held by the Hon'ble Supreme Court that the High Court in exercise of its revisional power can interfere only if the findings of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan Versus ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 9 Dattatray Gulabrao Phalke and Others, (2015) 3 Supreme Court Cases 123, that unmerited and undeserved .
prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon'ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence.
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12. Keeping into consideration the law so declared by the Hon'ble Supreme Court, this Court proceeds to adjudicate rt these revision petitions on merit.
13. Sections 41 and 42 of the Indian Forest Act reads as under:
"41. Power to make rules to regulate transit of forest produce.--(1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest- produce in transit by land or water, is vested in the (State Government), and it may make rules to regulate the transit of all timber and other forest- produce.
(2) In particular and without prejudice to the generality of the foregoing power such rules may--
(a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within (the State);
(b) prohibit the import or export or moving of such timber or other produce without a pass ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 10 from an officer duly authorized to issue the same, or otherwise than in accordance with the conditions of such pass;
(c) provide for the issue, production and .
return of such passes and for the payment of fees therefor;
(d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is reason to believe that any money is of payable to the (Government) on account of the price thereof, or on account of any duty, fee, royalty or Charge due thereon, or, to which it is desirable for the purposes of this rt Act to affix a mark;
(e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in Charge of it for examination, or for the payment of such money, or in order that such marks may be affixed to it, and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots;
(f) prohibit the closing up or obstructing of the channel or banks of any throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed;
(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such prevention or removal from the person whose acts or negligence necessitated the same;
::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 11(h) prohibit absolutely or subject to conditions, within specified local limits, the establishment of saw-pits, the converting, cutting, burning, concealing or making of .
timber, the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or other implements used for marking timber;
(i) regulate the use of property marks for timber, and the registration of such marks;
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prescribe the time for which such
registration shall hold good; limit the
number of such marks that may be
rt registered by any one person, and provide
for the levy of fees for such registration. (3) The (State Government) may direct that any rule made under this section shall not apply to any specified class of timber or other forest-produce or to any specified local area.
42. Penalty for breach of rules made under section 41.--(1) The (State Government) may by such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to six months, or fine which may extend to five hundred rupees, or both. (2) Such rules may provide that penalties which are double of those mentioned in sub-section (1) may be inflicted in cases where the offence is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or where the offender has been previously convicted of a like offence."
14. The Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 have been framed under Section ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 12 41 of the Indian Forest Act. Rule 11 provides pass for transportation of forest produce. Rule 20 provides .
imprisonment or fine or both for contravention of Rules. The proviso to Rule 20 provides penalty double in case offence committed after sunset or before sun-rise or after resistance to the lawful authority or where the offender has been previously convicted or like offence. Therefore reference of of Rule 20 in the Charge is necessary where there is allegation of violation of rules. However, a perusal of the records of the rt present case reveal that there is no reference of violation of Rule 20 framed under Sections 41 and 42 of Indian Forest Act by the Government of Himachal Pradesh in the Charge which has been put to the petitioners. In other words, though the petitioners have been convicted and imposed penalty for breach of Rules as contemplated under Section 42 of the Indian Forest Act, however, there is no mention of the Rules which were so framed by the Government of Himachal Pradesh as provided in Sections 41 and 42 of the Indian Forest Act and accordingly, there is nothing on record as to which Rule so framed by the State of Himachal Pradesh has been violated by the petitioners, thus, causing prejudice to them of not being provided an opportunity to put up their ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 13 defence qua violation of the Rules in issue for which they have been convicted under Sections 41 and 42 of the Indian .
15. Thus, there is merit in the contention of learned counsel for the petitioners that the Charge put to the accused was defective as no reference of violation of Rules framed under Sections 41 and 42 of the Indian Forest Act has been of stated in the Charge so put to the accused. A perusal of the judgment passed by the learned trial Court demonstrates that rt the accused have been convicted under Sections 41 and 42 of Indian Forest Act whereas conviction if any ought to have been under Rule 20 of Himachal Pradesh Forest Produce Transit (Land Routes) Rules 1978 framed under Sections 41 and 42 of the Indian Forest Act, if breach thereof was otherwise proved.
16. There in fact is no reference of violation of any Rule framed under Sections 41 and 42 of the Indian Forest Act put to the present petitioners.
17. This Court in State of Himachal Pradesh versus Nagnu Ram and others, Criminal Appeal No. 293 of 2004 while relying upon the judgment passed in Shiv Narain Bhasin v. State of Himachal Pradesh 1985 SLC 274 has held that Section 42 of Indian Forest Act is merely an enabling ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 14 Section empowering the State government to prescribe by Rules, penalties of imprisonment or fine or both for .
contravention of Rules framed under Section 41 of the Indian Forest Act and it was necessary for the trial Magistrate to state the precise Rules framed under Section 41 of the Indian Forest Act for the violation of which the accused was required to be punished and therefore, notice of accusation was held to of be defective. This Court further held that non-reference of Rule 20 framed under Sections 41 and 42 of the Indian Forest rt Act by the State Government in the notice of accusation which was put to the accused who were not given an opportunity to project their defence to the accusation of violation of Rules framed under Section 41 and 42 of the Indian Forest Act caused prejudice to the accused/ respondents. This legal position has been reiterated by this Court in Criminal Revision No. 116 of 2008, Fateh Singh and Ors. Versus State of H.P., decided on 30.11.2016.
18. Accordingly, in my view, as there was no reference of Rule 20 framed under Sections 41 and 42 of the Indian Forest Act by the State Government in the Charge which was put to the accused, the same was defective as per law laid down by this Court, keeping in view the fact that substantive ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP 15 violation in the present case is in fact of Rule 20 of Himachal Pradesh Forest Produce Transit (Land Routes) Rules 1978 as .
has been framed under Sections 41 and 42 of the Indian Forest Act, whereas the petitioners have not been tried for the violation of these rules.
19. Therefore, in view of the above discussion, these revision petitions are allowed and the judgment of conviction of passed against the petitioners and the sentence imposed upon them by the learned trial Court in Criminal Case No. rt 150-I-99/140-II-99, dated 24.01.2005 is set aside and judgment passed by the learned Appellate Court in Criminal Appeal No. 3/04 RBT 35/05/04, dated 27.08.2007, vide which it affirmed the judgment passed by the learned trial Court is also set aside. The petitioners are acquitted of the offences for which they were tried and convicted by the learned trial Court. Fine amount, if any, deposited by the accused/petitioners is ordered to be refunded to them in accordance with law. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge 11th January, 2017.
(narender) ::: Downloaded on - 15/04/2017 21:53:38 :::HCHP