Karnataka High Court
Sri. E. Hemendra Gouda vs State Of Karnataka on 14 November, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 101990 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 101990 OF 2022 (482-)
BETWEEN:
SRI. E. HEMENDRA GOUDA
S/O E.V.RAMANA, AGED ABOUT 54 YEARS,
R/O HOUSE NO. 31, NEAR COURT
KHB COLONY, SANDUR, BALLARY - 583119,
NOW R/O. M.P. PRAKASH NAGAR, SAI COLONY,
HOSPET, TQ AND DIST. HOSPET,
PIN- 583203
...PETITIONER
(BY SRI.MAHANTESH R PATIL & SRI. HARAT KUMAR V., ADVOCATES)
AND:
1. STATE OF KARNATAKA
THROUGH RANGE FOREST OFFICER
SANDUR SOUTH RANGE SANDUR, BELLARY
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HON BLE HIGH COURT OF KARNATAKA
DHARWAD BENCH DHARWAD
2. DEPUTY RANGE FOREST OFFICER
SMB SECTION SANDUR SOUTH RANGE
SANDUR, BELLARY-583119
...RESPONDENTS
(BY SRI. V.S.KALASURMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE FIR REGISTERED BY THE RESPONDENT
NO.2 AND BEARING FOC NO.13/2012-2013 REGISTERED FOR THE
ALLEGED OFFENCE U/S 2 OF THE FOREST CONSERVATION ACT,
1980, SECTION 24(a), (d), (f), (g), (gg), 73(d), 80, 82, 82(b) AND
109 OF KARNATAKA FOREST ACT, 1963 (ANNEXURE A) AND QUASH
THE FINAL REPORT DATED 27.11.2020 PREFERRED BY THE
RESPONDENT NO.1 BEFORE THE CIVIL JUDGE AND JMFC, SANDUR,
BELLARY, WHEREIN THE PETITIONER HEREIN HAS BEEN ARRAIGNED
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CRL.P No. 101990 of 2022
AS ACCUSED NO.2 FOR THE ALLEGED OFFENCE U/S 2 OF THE
FOREST CONSERVATION ACT, 1980, SECTION 24(a), (f), (g), (gg),
(h), 73(d), 82(B) AND 109 OF KARNATAKA FOREST ACT, 1963 IN
FOC NO.13/2012-2013 AND NOW RE-NUMBERED AS CC
NO.296/2021 (ANNEXURE B) AND QUASH THE ENTIRE
PROCEEDINGS IN MATTER BEARING FOC NO.13/2012-13
CURRENTLY RE-NUMBERED AS CC NO.296/2021 PENDING ON THE
FILE OF THE CIVIL JUDGE AND JMFC, SANDUR BELLARY, WHEREIN
THE PRESENT PETITIONER IS ARRAIGNED AS ACCUSED NO.2 FOR
THE ALLEGED OFFENCES U/S 2 OF THE FOREST CONSERVATION
ACT, 1980, SECTION 24(a), (f), (g), (gg), (h), 73(d), 82(B) AND 109
OF KARNATAKA FOREST ACT, 1963, (ANNEXURE C). AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
A FIR was registered for the offences punishable under Section 2 of the Forest Conservation Act, 1980, Section 24(a),(d),(f),(g),(gg), 73(d), 80, 82, 82(b) and Section 109 of the Karnataka Forest Act, 1963 alleging that the petitioner is carrying on illegal mining activities in a forest land. The police, after conducting investigation submitted the charge sheet for the aforesaid offences. The learned Magistrate, after accepting the charge sheet, took cognizance of the aforesaid offences and issued summons. Taking exception to the same, the petitioner- accused No.2 is before this Court.
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2. The learned counsel for the petitioner would make the following submissions:
(a) Firstly, the cognizance taken by the learned Magistrate after two years from the date of registration of FIR is barred by limitation as specified under Section 468(2) of the Code of Criminal Procedure, 1973 since the FIR was lodged on 03.10.2012 and the cognizance was taken on 05.08.2021 i.e., after a lapse of more than eight years from the date of registration of the FIR.
(b) Secondly, the FIR was registered on the basis of the report submitted by the Joint Team constituted by the Hon'ble Supreme Court by order dated 06.05.2011 regarding demarcation of mining leases in Ballari District, and the said report does not indicate that the petitioner has illegally carried out mining activity in the forest land.
(c) Thirdly, the offences alleged against the petitioner are non-cognizable offences and, in the absence of prior permission granted by the learned Magistrate, as specified under Section 155(2) of Cr.P.C., the registration -4- CRL.P No. 101990 of 2022 of the FIR culminating in filing of the charge sheet stands vitiated.
(d) In the absence of company not having been arraigned as an accused, the petitioner cannot be held vicariously guilty for the offences committed by the company as specified under Section 82(b) of the Act.
3. On the other hand, the learned High Court Government Pleader appearing for the respondent-State submits that cognizance was taken within two years from the date the charge sheet was submitted by the police before the learned Magistrate. Hence, he submits that cognizance taken by the learned Magistrate is not barred as specified under Section 468(2) of Cr.P.C. In support of his contention, he places reliance on the Constitutional Bench decision of the Hon'ble Supreme Court in the case of Sarah Mathew Vs. Institute of Cardio Vascular Diseases By its Director Dr. K.M.Cherian and Others1. He further submits that the report submitted by the Joint Team constituted by the Hon'ble Supreme Court clearly indicates that the petitioner was carrying 1 (2014)2 SCC 62 -5- CRL.P No. 101990 of 2022 on illegal mining activity in the forest land and as such the cognizance taken by the learned Magistrate does not warrant interference and sought for dismissal of the petition. He further submits that the Company of which the petitioner-accused No.2 is arrayed as an accused in the FIR, however, the company is also arrayed as an accused in the charge sheet and hence, the submission of the learned counsel for the petitioner that the proceedings is hit by Section 82(b) of the Karnataka Forest Act is not tenable.
4. I have examined the submissions made by the learned counsel for the parties.
5. The FIR was registered on 03.10.2012. The Police, after investigation, submitted the charge sheet on 27.11.2020. The learned Magistrate took cognizance of the aforesaid offences on 05.08.2021. The Hon'ble Supreme Court in the case of Sara Mathew (supra), while examining the issue Whether for the purposes of computing the period of limitation under Section 468 Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether relevant date is the date on which a Magistrate takes -6- CRL.P No. 101990 of 2022 cognizance of the offence, at paragraphs 17, 18 & 39, has held as follows:
"17. It is true that in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] and Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] this Court has referred to two important legal maxims. We may add that in Vanka Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 :
1993 SCC (Cri) 571] , to which our attention has been drawn by the counsel, it is stated that the general rule of limitation is based on the Latin maxim vigilantibus et non dormientibus, jura subveniunt, which means the vigilant and not the sleepy, are assisted by laws. We are, however, unable to accept the submission that reliance placed on legal maxims was improper. We are mindful of the fact that legal maxims are not mandatory rules but their importance as guiding principles can hardly be underestimated.
18. Herbert Broom in the Preface to the first edition of his classical work Legal Maxims (as seen in Broom's Legal th Maxims, 10 Edn., 1939) stated:
"In the Legal Science, perhaps more frequently than in any other, reference must be made to the first principles. Indeed, a very limited acquaintance with the earlier reports will show the importance which was attached to the acknowledged maxims of the law, in periods when civilisation and refinement had made comparatively little progress. In the ruder ages, without doubt, the great majority of questions respecting the rights, remedies, and liabilities of private individuals were determined by an immediate reference to such maxims, many of which -7- CRL.P No. 101990 of 2022 obtained in the Roman law, and are so manifestly founded in reason, public convenience, and necessity, as to find a place in the code of every civilised nation. In more modern times, the increase of commerce, and of national and social intercourse, has occasioned a corresponding increase in the sources of litigation, and has introduced many subtleties and nice distinctions, both in legal reasoning and in the application of legal principles, which were formerly unknown. This change, however, so far from diminishing the value of simple fundamental rules, has rendered an accurate acquaintance with them the more necessary, in order that they may be either directly applied, or qualified, or limited, according to the exigencies of the particular case, and the novelty of the circumstances which present themselves."
In our opinion, therefore, use of legal maxims as guiding principles in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] and Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] is perfectly justified.
39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] , Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] and Vanka Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] . The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin -8- CRL.P No. 101990 of 2022 maxim vigilantibus et non dormientibus, jura subveniunt. Chapter XXXVI CrPC which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles."
6. In view of the ratio enunciated by the Hon'ble Supreme Court in Sara Mathew's case (supra), I am of the view that cognizance of the offence was taken by the learned Magistrate within two years, as specified in Section 468(2) of Cr.P.C., from the date the charge sheet was submitted by the Police.
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7. The charge sheet is filed for the aforesaid offences against the petitioner-accused No.2 primarily on the basis of the report submitted by the Joint Team constituted by the Hon'ble Supreme Court. A perusal of the report submitted by the Joint Team does not disclose that the petitioner has carried illegal mining activity in the forest land. Paragraph 11 of the said Report pertaining to the company in question, read as follows:
"11. About 8 Ha of forest land outside the sanctioned lease area of M/s Mysore Minerals Ltd. (ML No. 2629) has been used for dumping the overburden. While dealing with the case of M/s Mysore Minerals Ltd., the said dump was earlier considered to be belonging to the mining lease of M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. (ML No. 2559) as it falls within the sanctioned mining lease boundary of the latter. Accordingly, the said dump was considered to be a legal dump falling within the lease area of M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. and M/s Mysore Minerals Ltd. was cleared by the Joint Team in its proceedings dated 28.7.2011. However, while fixing the sanctioned lease sketch of M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. (ML No. 2559) it is seen that the mining lease was sanctioned only in the year 2009. The satellite imagery of October 2003, shows that the said overburden dump was already in existence. It therefore cannot belong to M/s Karthikeyas Manganese and Iron
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ore Pvt. Ltd. (ML No. 2559) but actually belongs to M/s Mysore Minerals Ltd: (ML No. 2629). In view of the above, the Joint Team has come to the conclusion that M/s Mysore Minerals Ltd. (ML No. 2629) has been involved in illegal mining by way of illegal dumping of overburden outside the lease area. The Joint Team has also received a representation that the iron ore, which was earlier not considered to be salable and dumped as overburden, is now being illegally removed and sold. This aspect also urgently requires further investigation and a time bound follow up action."
Hence, in the absence of any material that the petitioner- accused No.2, has carried out illegal mining activity in the forest land, the registration of the FIR culminating in initiation of criminal proceedings is impermissible.
8. The offences alleged are non-cognizable offences and the Police before registering the FIR were required to obtain prior permission as required under Section 155(2) of Cr.P.C. Obtaining of prior permission being mandatory, the registration of the FIR is without authority of law and subsequent filing of charge sheet stands vitiated.
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CRL.P No. 101990 of 2022
9. Section 82(b) of the Karnataka Forest Act specifies that if the person committing an offence under this Act is a Company, the company as well as every person in charge of, and responsible to the company for the conduct of its business at the time of the commission of the offence shall be liable to be proceeded against and punished accordingly. In the instant case, the allegation is that the company in question of which the petitioner- accused No.2 was carrying out illegal mining activity in the Forest Land. The company having been arrayed as an accused, the contention of the learned counsel for the petitioner that in the absence of company being arraigned as an accused, the petitioner cannot be held vicariously guilty is not acceptable.
10. In view of the preceding analysis, I am of the considered view that continuation of criminal proceedings against the petitioner-accused No.2 will be an abuse of process of law since the probability of conviction of the
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CRL.P No. 101990 of 2022 petitioner-accused No.2 is remote and bleak. Accordingly, I pass the following:
ORDER The criminal petition is allowed. The impugned criminal proceedings in C.C. No.296/2021 pending on the file of the Civil Judge and JMFC, Sandur, insofar as it relates to petitioner-accused No.2 is hereby quashed.
Sd/-
JUDGE KMS List No.: 1 Sl No.: 5