Rajasthan High Court - Jodhpur
Bharat Bhai vs State on 13 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3434 / 2016
Bharat Bhai S/o Shri Jassa Ji, Aged About 25 Years, Village
Ratangarh, Tehsil Wav, District Banaskantha, Gujrat.
----Petitioner
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. R.J. Punia
For Respondent(s) : Mr. V.S. Rajpurohit, PP
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 13/09/2017
1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of FIR No.34/2015 dated 23.05.2015 of P.S. Sarwana, District Jalore and other consequential proceedings, which has been registered for the offence under Section 41/42 of Rajasthan Forest Act (hereinafter referred to as the Act).
2. The brief facts as noticed by this Court are that on 22.05.2016, the police party has conducted road block and on the next day i.e. 23.05.2015, the pickup jeep was stopped and it was found loaded with wooden articles of Rohida tree (tecomella undulata). The wooden articles were seized and a case under Section 41, 42/77 of the Act was registered. The investigating authority has submitted charge sheet under Section 41, 42/77 of the Act and Section 3/181 of Motor Vehicles Act before the learned (2 of 4) [CRLMP-3434/2016] court below and the learned court below took cognizance vide order dated 04.08.2015. The charges have been framed on 27.05.2016 and the learned court below has put up the case for evidence of prosecution and the same is pending in evidence.
3. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Mohan Ram @ Manaram Vs. State of Rajasthan, reported in 2016(3) Cr.L.R. (Raj.) 1144, wherein the following order had been passed:-
"This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with a prayer for quashing the proceedings of Criminal Case No.1811/2015 pending in the Court of Judicial Magistrate, Balotra, District Barmer (hereinafter referred to as 'the trial court') against the petitioner.
In the present case, the trial court vide order dated 19.11.2015 took cognizance against the petitioner for the offences punishable under Sections 41, 42/77 of Rajasthan Forest Act, 1953 (hereinafter referred to as 'the Act of 1953'). Learned counsel for the petitioner has argued that the FIR was lodged against the petitioner for the offences punishable under Sections 41 and 42/77 of the Act of 1953 by the Head Constable Sujan Singh of the Police Station Sindhari, District Barmer on 11.10.2015. It is contended that the offence punishable under Sections 41 and 42/77 of the Act of 1953 are non- cognizable offence and as per the provisions of Sub- Section (2) of Section 155 of the Code of Criminal Procedure, no police officer shall investigate into non- cognizable case without order of Magistrate having power to try such case or commit the case for trial. It is argued that the FIR in the present case, could not have been registered because there was no order from the Magistrate having power to try such case or commit the case for trial. It is further argued that the trial court, without taking into consideration the above position of law, has illegally proceeded against the petitioner and has taken cognizance against him for the offences punishable under Sections 41, 42/77 of the Act of 1953 vide order dated 19.11.2015.
(3 of 4) [CRLMP-3434/2016] In support of above contentions, learned counsel for the petitioner has placed reliance upon the judgments of this Court in the case of Pintu Dey Vs. State of Rajasthan & Anr. decided on 9.4.2015 and Pappu Ram Vs. State of Rajasthan reported in 2015 (1) Cr.L.R. (Raj.) 304.
Learned Public Prosecutor has opposed the criminal misc. petition and has argued that as per the provisions of Section 64 of the the Act of 1953, any Police Officer has power to arrest any person without warrant against whom a reasonable suspicion exists of his having been involved in any forest offence punishable with imprisonment for one month or upwords and, therefore, the police officer is also competent to register and investigate any FIR against any person in which the complaint is made for commission of offences under Sections 41 and 42 of the Act of 1953.
However, learned Public Prosecutor has fairly conceded that the punishment provided under Sections 42 and 77 of the Act of 1953 are less than 3 years, therefore, the offences punishable under Sections 42 and 77 of the Act of 1953 are non-cognizable offences.
Heard learned counsel for the petitioner and perused the impugned order.
Sub-section (2) of section 155 of CrPC reads as under:
"(2) No police officer shall investigate a noncognizable case without the order of a Magistrate having power to try such case or commit the case for trial."
Part-II of Schedule-I of CrPC reads as under:
"II - CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or Non- Bailable or Non- By what Court triable Cognizable Bailable 1 2 3 4 If punishment with Cognizable Non-bailable Court of Session death, imprisonment for life, or imprisonment for more than 7 years, If punishable with Cognizable Non-bailable Magistrate of the first imprisonment for 3 class years and upwards but (4 of 4) [CRLMP-3434/2016] not more than 7 years.
If punishable with Non-cognizable Bailable Any Magistrate imprisonment for less than 3 years or with fine only. As held by the Andhra Pradesh High Court The punishment provided in Sections 42 and 77 of the Act of 1953 is upto 6 months or fine or both and one month or fine or both respectively and, therefore, as per Part II of Schedule-I of Cr.P.C, the said offences are noncognizable offences and as per Sub-Section (2) of Section 155 Cr.P.C., no Police Officer shall investigate a non-cognizable case without an order of Magistrate.
Admittedly, the FIR No.152/2015 was lodged at Police Station Sindhari, District Barmer against the petitioner without there being any order of Magistrate having power to try such case or commit the case for trial.
In view of above discussions, the action of registration of impugned FIR against the petitioner without there being any order of Magistrate having power to try such case or commit the case for trial, is violative of Sub Section (2) of Section 55 of Cr.P.C. and the consequent order of the trial court taking cognizance against the petitioner for the offences punishable under Sections 41 and 42/77 of the Act of 1953 is also bad in the eye of law.
Resultantly this criminal misc. petition is allowed. The order of taking cognizance by the learned Judicial Magistrate by order dated 19.11.2015 in Criminal Case No.1811/2015 is quashed. The impugned FIR No.152/2015 of Police Station Sindhari, District Barmer is also quashed. The stay petition also stands dismissed."
4. In light of the aforequoted precedent law, the present misc. petition is allowed in the same terms and FIR No.34/2015 dated 23.05.2015 registered at Police Station Sarwana, District Jalore and all the consequential proceedings are hereby quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. zeeshan/