Jharkhand High Court
Prasanna Kumar Mahapatra @ ... vs State Of Jharkhand & Ors on 4 February, 2010
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
W.P (Cr.) No.297 of 2009
Prasanna Kumar Mahapatra
@ P.K.Mahapatra @ P.K.Patra...............Petitioner
VERSUS
State of Jharkhand and others.............Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Ananda Sen
For the Respondents : Mr.R.K.Singh, G.P.IV
Reserved on 30.1.2010 Pronounced on 4 .2.2010
9. 4.2.10. This writ application has been filed for quashing of the entire criminal proceeding of complaint case bearing C-1 no.8 of 2007 including the order dated 20.7.2009 whereby and whereunder cognizance of the offence under section 33 of the Indian Forest Act has been taken against the petitioner and other accused persons.
The case of the prosecution is that one Rajendra Sharma, a Forest Guard in course of patrolling along with others came to Gurdari Forest on 21.5.2007 where he heard sound of felling of trees as well as sound of digging Bauxite. Upon it, he along with other Forest Guard proceeded towards that direction and saw accused persons, who had indulged themselves in doing the said illegal act, fleeing away. Of them, he could identify one of the persons including Mines Manager of M/s. Hindulco Industries Limited, who happens to be the petitioner but his name was not disclosed. When they reached at the place of occurrence, they found extracted Bauxite and also some of the trees which had been felled down. On the said allegation offence report was drawn and was sent before the court of Chief Judicial Magistrate, Gumla on 22.5.2007. At the same time, when offence report was submitted before the Divisional Forest Officer, Lohardaga, Ranchi Forest Division, the matter was enquired into by the Forester, 2 Netarhat. On completion of the enquiry, prosecution report was submitted before the court on 4.2.2007, upon which cognizance of the offence under Section 33 of the Indian Forest Act was taken on 20.7.2009 against the petitioner and others.
Being aggrieved with that order, this writ application has been preferred for quashing the entire criminal prosecution including the order taking cognizance.
Mr. Ananda Sen, learned counsel appearing for the petitioner submits that officials of the Forest Department are bent upon to prosecute the petitioner falsely and in that pursuit, they are lodging case after case on almost similar kind of allegation and as such, the instant prosecution is nothing but a malicious prosecution.
Learned counsel in this respect further submits that the fact of this case itself discloses about the falsity of the case as it is a case of the prosecution that Rajendra Sharma, Forest Guard did find extracted Bauxite and also some of the trees which are said to have been felled down by the accused persons but the prosecution has not come forward with the seizure of either the extracted Bauxite or of the felling trees and as such, no seizure list was produced before the Court.
Learned counsel further submits that this fact had been pleaded in the main writ application itself and subsequently, in the supplementary affidavit but the same has not been denied and as such, it gets established that the prosecution has not seized any of the materials from the place of occurrence and once the seizure has not been effected, the prosecution would never succeed in establishing its case and in that event, even if the prosecution would laid their evidences that would never be sufficient for holding the petitioner guilty and as such, the instant proceeding is fit to be 3 quashed, in view of the ratio laid down by the Hon'ble Supreme Court in a case of R.P. Kapur vs. State of Punjab (AIR 1960 SC 866).
A counter affidavit has been filed on behalf of respondent no.2 stating therein that offence report was submitted wherein allegation was put in that this petitioner and other accused had indulged themselves in extracting Bauxite and felling trees which matter was enquired into by the Forester and the allegation was found to be true and hence, prosecution report was submitted and as such, the prosecution does not suffer from any illegality and therefore, the instant application is fit to be dismissed.
No doubt it is true that allegation has been levelled in the offence report and also in the prosecution report that the petitioner and other accused persons had indulged themselves in extracting Bauxite and felling trees which is the offences under the Indian Forest Act but at the same time, in view of the assertion made on behalf of the petitioner which has not been denied that seizure of the incriminating articles had never been effected, the question would be as to whether sufficient evidences are there to prove the guilt of the petitioner ?
It has been clearly asserted in the main writ application at paragraph 23 that though the assertion is there of carrying out illegal mining but no materials had been seized. Again this fact was reiterated in the supplementary affidavit but the respondent no.2 has not denied the said fact. Thus, this vital evidence which could have been very material for proving the charge is lacking and in that event, even accepting the case of the prosecution, the prosecution would not be able to prove the charges and in that event, it would be abuse of the process of law, if the petitioner is allowed to be prosecuted, in view of the ratio laid down by the 4 Hon'ble Supreme Court in the case of R.P. Kapur vs. State of Punjab (supra) holding therein that High Court in exercise of its inherent power can quash the proceedings in cases of following categories.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirely do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
That apart, I do find that the petitioner is being prosecuted again and again on the similar nature of allegation. One of such case was complaint case bearing C/1 case no.19 of 2006 which has been quashed by this Court in W.P.(Cr.) No.207 of 2008 on the ground that there was no legal evidence to prosecute that case.
Almost similar is the instant case where if the evidence would be adduced that would not be sufficient to prove the charge.
For the reason discussed above, I do find that the instant case would be coming within one of the categories of the case referred to above and under this situation, it would be highly improper to allow the petitioner to suffer rigor of the trial as there would be virtually no chances of securing conviction of the petitioner even if the entire material collected remains uncontroverted.
Accordingly, the entire proceeding of Complaint case bearing C-1 case no.8 of 2007 including the order dated 20.7.2009 passed by the Chief Judicial Magistrate, Gumla is hereby quashed so far the petitioner is concerned.
In the result, this application is allowed.
( R.R.Prasad, J.) ND/