Karnataka High Court
P.B.Pandi S/O. P Veeranan vs The State Of Karnataka By on 22 September, 2022
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CRL.RP No. 2338 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 2338 OF 2013 (397)
BETWEEN:
1. P.B.PANDI S/O. P VEERANAN
AGE: 43 YEARS,
OCC: SITE IN CHARGE, SUZOLN ENERGY LTD
R/O. MELAPUBUR, MADURAI ROAD,
TQ:USILAMBHAT, DIST: MADURAI (T.N)
PIN CODE-625532
2. S.ULAGANATHAN S/O. SHANKERLINGAM
AGE: 4O YEARS, OCC ELECTRIC ENGINEER
SUZLON ENERGY LTD.,
R/O. V K PURAM, TQ PAPANASHINI
DIST: TIRUNNAVELI (T N)
PIN CODE-627425
3. SADANANDA M C S/O. CHANDRAIAH B
AGE: 35 YEARS,
OCC: MANAGER, SUZLON ENERGY LTD
R/O. NO. 190, 4TH CROSS
BASAVESHWAR NILAYA, BASAVANGUDI, SHIMOGGA,
PIN CODE-577201
4. B N S PRAKASH S/O. B K NAGRAJRAO
AGE: 50 YEARS, OCC: MANAGER,
SUZLON ENERGY LTD
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CRL.RP No. 2338 of 2013
R/O. NO. 254, 15TH MAIN ROAD
NAGENDRA BLOCK, BANGALORE
PIN CODE-560058
...PETITIONERS
(BY SRI. BASAVARAJ KAREDDY &
SRI.N.P.VIVEK MEHTA, ADV.)
AND:
1. THE STATE OF KARNATAKA BY
RANGE FOREST OFFICER
KAKAT RANGE AT : KAKATI
TQ: BELGAUM, DIST: BELGAUM
REPRESENTED BY ADDL.SPP,
HIGH COURT OF KARNATAKA,CIRCUIT BENCH
BUILIDING, DHARWAD.
...RESPONDENT
(BY SRI. V M BANAKAR ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W SEC. 401 OF CR.P.C. PRAYING TO ALLOW THIS PETITION
BY SETTING ASIDE THE ORDER OF THE LEARNED IV ADDL.
JMFC., BELGAUM DATED 23.09.2013 IN CC NO.1113/2013
INSOFAR AS THE PETITIOENRS ARE CONCERNED.
THIS PETITION HAVING BEEN HEARD AND RESERVED
ON 05.09.2022 FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
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CRL.RP No. 2338 of 2013
ORDER
This criminal revision petition is filed by the petitioners/ accused under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking to quash the order of the IV Addl. JMFC Court, Belgaum dated 23.09.2013 in CC No.1113/2013 and consequently quash the charge sheet filed by the respondent insofar as petitioners are concerned. Thereafter, at the request of petitioners this petition is converted as revision petition under Section 397 of Cr.P.C.
2. Heard the arguments of learned counsel for the petitioners and the learned Addl. SPP Sri.V.M.Banakar for respondent-State and have perused the records.
3. The parties will be referred to as per their ranks in the trial Court.
4. The brief case of the petitioners is that the respondent has registered the case No.3/2012-13 in Form 17 Rule 65(1) of Karnataka Forest Manual against the -4- CRL.RP No. 2338 of 2013 petitioner for the offence punishable under Section 24(g), (gg) of Karnataka Forest Act(for short hereinafter 'K.F. Act') for the offence punishable under Sections 425, 426 & 427 of IPC and under Section 7, 24, 55(2) & 61(a) of Bio Diversity Act & under Section 17(A), 51, 57 & 58(C) of Wild Life Protection Act (for short hereinafter 'WLP Act') alleging that on 23.03.2013 on his information he and his office came to know that the petitioners herein formed a kaccha road of 785 mtrs length and 7 meters width in Sy.Nos.204 and 168 of Handiganur forest by removing bushes to take their equipments of wind energy to the patta land owned by them for its erection. The respondent has not made out any grounds to proceed with the alleged commission of offence, hence, the impugned order passed by the Trial court is illegal and against the facts and circumstances of the case. The learned Magistrate without the proper application of mind, has mechanically taken the cognizance of offence. There are no eye witnesses to witness the formation of the road, non seizure of any -5- CRL.RP No. 2338 of 2013 material from the petitioners to prove the alleged offence. The ground for framing the charge is only on the oral confession Statement made by the petitioners. The petitioners have another public road to reach their private land for transporting their equipments and thereby using that public road have established the wind energy unit in the private land, and hence the question of trespass to the forest land doesn't arise at all. The petitioners have further alleged that the respondent state has filed the charge sheet with the ulterior -motive. Further, it is alleged that violation under provisions of Wild Life Protection Act would not attract as to the instant case. No notifications of the Central Government specifying the plants and the area, is there as per Section 17(A). So also, it is not the case of the respondent-state that the petitioners are holding illegally acquired property. In addition to the same no seizure is made in this regard. Further, it is alleged that as per Section 61(A) of the Bio Diversity Act, cognizance of the offence cannot be taken accept a complaint made by -6- CRL.RP No. 2338 of 2013 Central Government or any other Officer authorized by it. On all these grounds, sought for allowing this petition and set aside the order passed by the trial Court.
5. Having heard the arguments of learned counsel for the parties, and have perused the records.
6. The Learned counsel for petitioners submits that the Deputy Range Forest Officer is not the competent officer to register the case as contemplated under section 62(A) of the Karnataka Forest Act, the said section specifies that the officer not below the rank of Range Forest Officer has the power to investigate the matter. The learned Counsel further submits that, the prosecution has made the employees of Sujalan Company as accused Nos.1 to 4, but the Sujalan Company having not been arraigned as accused, the vicarious liability cannot be fastened on the petitioners and as such, the charge-sheet filed is hit by Sec.82(B) of the Act. In order to substantiate his argument ,the learned counsel has submitted the -7- CRL.RP No. 2338 of 2013 judgment dated 21st march 2022 , rendered by our own co-ordinate Bench in Crl.R.PNo.102326/21 .
7. It is mandatory on the part of the investigating officer to produce the Notification issued by Central Government under Section 17(A) of the Wild Life Protection Act. No such notification is produced by the investigating officer and hence, cognizance taken by the learned Magistrate under the Wild Life Protection Act is not maintainable.
8. It is submitted by the learned Cousnel for petitioners that In regard to the alleged offences under Bio Diversity Act ,it is absolutely not maintainable, as the Section 61A of the Bio Diversity Act mandates that the cognizance of the offence cannot be taken except a complaint lodged by the Central government or any other officer authorized by it and in the instant case no such complaint is registered by any authorized person by the central government. Hence, cognizance taken by the learned Magistrate is not sustainable in law.
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9. It is the contention of the learned Counsel for petitioners that absolutely, there is no evidence to attract the provisions of the Section 24(g) and (gg) of the Karnataka Forest Act, 1963. Though investigating officer has not seized any property he has submitted his seizure report before the Court. With this, he prays to allow the petition.
10. Per contra, learned Addl. SPP vehemently argued that this Revision petition is premature, the alleged offences are serious in nature, punishable with three years of imprisonment. It is a warrant trial, instead of filing necessary application before the jurisdictional Magistrate, the petitioners have filed this criminal revision petition before this court and the same is not sustainable in law. The prosecution has produced sufficient material before the jurisdictional Magistrate to proceed against the accused for the commission of alleged offences. The arguments advanced on behalf of the petitioner may be urged on merits of the case. Further, learned Addl. SPP -9- CRL.RP No. 2338 of 2013 submitted that, at this stage, arguments advanced on behalf of the petitioners counsel cannot be accepted and sought for dismissal of this petition with cost.
11. On perusal of the trial Court records, it is clear that the RFO, Kakathi range, Kakati has submitted the charge sheet before the jurisdictional Magistrate along with the charge sheet he has submitted the enquiry report pertaining to RO No.22/12-13 dated 23.03.2013 prepared by the RFA Kakati and seizure panchnama conducted by the Deputy RFO, Kakati, FIR prepared by the Deputy RFO, Kakati, copy of the arrest notice, remand application, voluntary statement of the accused. The copy of the notification and sketch map showing the illegal road done by the Sujalan company prepared by RFO, Kakati, Seizure report without seizing of any properties, Form No.24 (Rule 72 of Karnataka Forest Manual). On the basis of these documents, the learned Magistrate has passed the order on 23.09.2013 as under:-
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"Register and put up/made over this case to the JMFC-IV Court, Belgaum Court for disposal accordingly to law."
12. On the same day, the trial Court has passed as under:
" Perused the charge sheet, there are sufficient materials to proceed against the accused. Hence cognizance under Section 190(1)(b) of Cr.P.C. is taken against the accused for the offence punishable under section KFA 1963 under section 24(gg), IPC 427, Bio Diversity Act 2002 U/S 7, 24, 55(2), 58, 61A Wild Life Protection Act-1972 U/s 17A, 51, 57, 58C r/w Section 425, 426, 427. Register the case in register NO.III and issue SS to accused. Call on:24.12.2013."
13. The charge sheet is submitted by the RFO, Kakati Range, Kakati. The Deputy RFO has not submitted the charge sheet against the accused/petitioners as submitted by the petitioners counsel. But, it is true that the Deputy RFO has registered the case in Crime No.3/2012-13 on 23.03.2013. In this regard, I have gone through the Rule
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CRL.RP No. 2338 of 2013 69 of Chapter 9 of the Karnataka Forest Rules, 1969. On perusal of the provisions of Sections 74, 76 of Karnataka Forest Act, Rule 69 of Chapter IX of Karnataka Forest Rules, 1969 and Chapter VI of Karnataka Forest Manual. The categories of officers mentioned in Column No.1 of the Table are empowered to exercise the powers under this Section. Accordingly, Deputy Range Forest Officer is competent to register the case against the accused concerned. Therefore, that there is no force in the arguments advanced on behalf of the counsel for the revision petitioner.
14. Learned counsel for the petitioners submitted his arguments that absolutely, there are no evidence to proceed against accused for alleged commission of offences under Sections 24(g) and 24(gg) of the Karnataka Forest Act, 1963. The said Sub clause(g) of Section 24 and (gg) reads as under:
"24. Acts prohibited in reserved forests.- Any person who- (a) xxxxxx
(b) xxxxxx
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(c) xxxxxx
(d) xxxxxx
(e) xxxxxx
(f) xxxxxx
(g) clears or breaks up any land for cultivation or any other purpose; or [(gg) unauthorisedly occupies land for any purpose;
or]"
(h) xxxxxx
(i) xxxxxx
(j)xxxxxx or who abets committing of any of the above prohibited acts shall, on conviction, be punishable with imprisonment for a term which may extend to 3 [one year] or with fine which may extend to 3 [two thousand rupees] or with both, and in addition be liable to pay such compensation for the damage done to the forests as the convicting court may direct to be paid."
15. The investigating officer has produced FIR, Mahazar, enquiry report and voluntary statements of the accused with list of witnesses No.1 to 9. At this stage, a perusal of these materials are sufficient to proceed against the accused for the commission of alleged offences punishable
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CRL.RP No. 2338 of 2013 under Section 24(g) and (gg) of Karnataka Forest Act, 1963. At this stage, the arguments advanced on behalf of the petitioners counsel cannot be accepted. Hence, the trial Court has rightly taken cognizance for the commission of alleged offences under Section 24(g) and (gg) of Karnataka Forest Act,1963.
16. Petitioners counsel has submitted his arguments that it is mandatory on the part of the investigating officer to produced a notification issued by the Central Government under Section 17(A) of the Wild Life Protection Act. Sec.17 A reads as under:
"17A. Prohibition of picking, uprooting, etc., of specified plant.--Save as otherwise provided in this Chapter, no person shall--
(a) willfully pick, uproot, damage, destroy, acquire or collect any specified plant from any forest land and any area specified, by notification, by the Central Government;"
No such notification is produced by the investigating officer. Hence, cognizance taken by the trial Court under Section 17A, 51, 57 and 58C of Wild Life Protection Act, 1972 is not maintainable.
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CRL.RP No. 2338 of 2013
17. A careful scrutiny of the prosecution papers, it is clear that the prosecution has not produced the notification issued by the Central Government as contemplated under Section 17(A) of the Wild Life Protection, Act, 1972. Therefore, trial Court ought not to have take cognizance against the accused for the commission of offence punishable under Sections 17A, 51, 57, 58 and 58C of Wild Life Protection Act. In this regard, the order of the trial Court is not sustainable under law.
18. The learned counsel for the petitioners has submitted his arguments that in view of Section 61 of Bio Diversity Act, no court shall take cognizance of any offence under this act except complaint made by the Central Government or any authority or officer authorized in this behalf by Government. In the case on hand, the prosecution has not produced the documents to show that the RFO who has filed the charge sheet against the accused was authorized to file this complaint. The trial Court has not considered the provisions of Section 61 of Bio Diversity
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CRL.RP No. 2338 of 2013 Act. Hence, in this regard, the cognizance taken in respect of the offence punishable under Section 7, 24, 55(2), 68,61A are not maintainable in law.
19. With regard to the offence punishable under Section 425, 426 and 427 are concerned, it is submitted that there are no materials proceed against the accused for commission of offence punishable under Section 427 of IPC. Section 425 is not a punishment clause. That in view of Section 78 of Karnataka Forest Act, 1963, operation of other laws not barred to prosecute the accused for any act or omission, which constitutes a forest offence or from being liable under such other law to any higher punishment or penalty than that provided by this act or the rules made thereunder. Accordingly the investigating officer has submitted the charge sheet for the alleged commission of offence punishable under Section 426 and 427 of IPC.
20. For the aforesaid reasons and discussions, it is held that the trial Court ought not to have taken cognizance
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CRL.RP No. 2338 of 2013 against the accused for the alleged commission of offence punishable under Section 7, 24, 55(2), 58 and 61(A) of Bio Diversity Act 2002 and Section 17A, 51, 57, 58(C) of Wild Life Protection Act. Rest of the offences under Section 24(g) and 24(gg) of Karnataka Forest Act, 1963 and Section 426 and 427 are concerned, cognizance taken by the trial Court is in accordance with law.
21. It is relevant to mention here that the alleged offences are punishable under Section 24(g) and (gg) are punishable with imprisonment for a term which may extend to one year or with fine which may extend to Rs.2000/- or both and in addition to liable to pay such compensation for the damage done to the forest, as the convicting court may directed to be paid.
22. Section 426 IPC is punishable with imprisonment for three months or fine or both. Section 427 is punishable with imprisonment for two years or fine or both. Both offences are non-cognizable in nature. But the provisions of Section 74 of Karnataka Forest Act, Any Forest officer or
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CRL.RP No. 2338 of 2013 Police Officer may, without orders from a magistrate and without a warrant, arrest any person reasonably suspected of having been concerned in any forest offence punishable with imprisonment for one month or upwards, if such person refuses to give his name and residence or givens a name or residence which there is reasons to believe to be false, or if there is reason to believe that he will abscond.
23. The word cognizable offence is defined under 2(C) of Code of Criminal Procedure, which contemplates that cognizable offence means an offence for which, and"
cognizable case" means a case in which, a police officer may arrest without warrant.
24. The learned counsel for the petitioners has relied upon the decision dated 21st march 2022, of the Co- ordinate bench of this Court in Crl.P.No.102326/2021 and has also submitted the decision dated 08th May 1990, of Hon'ble High Court of Calcutta in Criminal revision No.157/1985, Bengal Tools Ltd., Vs. Registrar of Companies and others, wherein RFO has not submitted
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CRL.RP No. 2338 of 2013 charge sheet as contemplated under Section 62(A) of Karnataka Forest Act. But, in the Instant case, as already discussed above, RFO has submitted the charge sheet against the accused. Hence, these decisions are not helpful to the petitioners.
25. Learned counsel has further submitted that the company is not arraigned as accused in the charge sheet as specified under Section 82(B) of the Karnataka Forest Act. Hence, in view of the aforesaid decisions, the impugned proceedings have to be quashed.
26. In this regard, a perusal of the charge sheet submitted by the RFO, he has furnished the names and address of the accused as under:
1) P.B.Pande, Site incharge Sujalan
2) S.Ulaganathan, Electrical Engineer, Sujalan
3) Sadananda M.C., Manager of Sujalan land section
4) B.N.S Prakash, Manager Administration, Sujalan
5) Sujalan and Energy limited.
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CRL.RP No. 2338 of 2013
27. This charge sheet reveals that the RFO, Kakati has arraigned Sujalan Wind Energy Ltd. as accused No.5 in this case. Therefore, the investigating officer has complied the provisions of Section 82B of the Karnataka Forest Act. Accordingly, impugned order sheet also reveals that the name of the accused No.5 is shown as Sujalan Wind Energy Ltd. Company and others. Hence, I do not find any illegality in the charge sheet submitted by the investigating officer.
28. For the aforesaid reasons, I proceed to pass the following:
ORDER The Criminal Revision Petition is allowed in part.
The cognizance taken against the
accused for the commission of offence
punishable under Section 7, 24, 55(2), 58,
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61A of Bio Diversity Act, 2002 and Sections 17A, 51, 57, 58(C) of Wild Life Protection Act, 1979, is quashed.
The cognizance taken in respect of the rest of the offences under Section 24(g) and (gg) of Karnataka Forest Act, 1963, Section 426 and 427 of Indian Penal Code, the Petition is dismissed.
Send back the trial Court records along with copy of this order to proceed against the accused for the commission of offence under Section 24(g) and 24(gg) of Karnataka Forest Act, 1963 and Section 426 and 427 of IPC in accordance with law.
Sd/-
JUDGE HMB