Himachal Pradesh High Court
Fateh Singh And Others vs State Of H.P on 30 November, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. : 116 of 2008.
Reserved on: 17.11.2016.
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Decided on: 30.11.2016.
Fateh Singh and others ....Petitioners.
Versus
State of H.P. ... Respondent.
__________________________________________________________________ Coram of The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes _____________________________________________________________ rt For the petitioners : Mr. G.R. Palsra, Advocate.
For the respondent : Mr. Vikram Thakur and Ms. Parul Negi, Dy. Advocate Generals.
Ajay Mohan Goel, Judge By way this revision petition, petitioners have challenged the judgment passed by the Court of learned Additional Sessions Judge, Mandi, District Mandi, in Criminal Appeal No. 3 of 2005, dated 23.05.2008, vide which learned Appellate Court, while dismissing the appeal filed by the present petitioners, affirmed the judgment of conviction and sentence imposed upon the present petitioners by the Court of learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi, in Police Challan No. 257-I/2001 (2000), dated 12.01.2005, whereby learned trial Court while 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 2convicting the present petitioners for commission of offences punishable under Sections 41 and 42 of the I.F. Act (hereinafter referred to as 'I.F. Act' ) and Rule 20 of Himachal .
Pradesh Forest Produce Transit (Land Routes) Rules, 1978 framed under the said Sections, sentenced each of the petitioners (hereinafter referred to as 'accused' for short) to undergo simple imprisonment for a period of six months and of to pay a fine of ` 1,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month.
2.
rt
The case of the prosecution was that on
25.02.2000 at 1:30 p.m. Head Constable Paras Ram
alongwith LHC Prem Singh while patrolling at Chel Chowk intercepted one Eicher truck bearing registration No. HP-32- 0909 which came from Gohar side and was proceeding towards Mandi. This truck was intercepted for routine checking and three persons were sitting in the same who revealed their names as Fateh Singh S/o Shri Dharam Singh, driver of the truck, Fateh Singh s/o Shri Devi Singh, owner of the truck and Begam Singh s/o Shri Karam Singh. When the truck was checked, the same was found loaded with bories containing maize. These bories of maize were removed on one side with the help of labourers namely Bhimu and Nagnu, which revealed frames wrapped with Jute mat concealed ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 3 underneath the bories. On this, photographers Pankaj Kumar and Tapender Singh and Forest Guard Bassa were called on the spot. Bories containing maize were got unloaded with the .
assistance of labourers. Besides sixty six bories of maize, three bundles of wooden frames wrapped with jute mat were found in the truck. On counting, 37 wooden frames of different sizes were recovered. Photographs of the truck and of wooden frames were taken and the owner of the truck was enquired about the transportation of the same who told that rt the frames were from his timber of T.D. He however could not produce any permit qua transportation of recovered wooden frames. In these circumstances, truck as well as the wooden frames were taken into possession and further investigation was carried out. After completion of the investigation, challan was filed in the court and as a prima facie case was found against the accused, notice of accusation was put to them for commission of offences punishable under Sections 41 and 42 of I.F. Act, to which they pleaded not guilty and claimed trial.
3. On the basis of evidence led by the prosecution both ocular as well as documentary, learned trial Court found the accused guilty of having committed offences punishable under Sections 41 and 42 of the I.F. Act and Rule 20 of Himachal Pradesh Forest Produce Transit (Land Routes) ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 4 Rules 1978 and sentenced each of them to undergo six months' simple imprisonment and to pay a fine of ` 1000/-.
4. In appeal, the judgment of conviction and .
sentence so imposed upon the accused by the learned trial Court was upheld by the learned Appellate Court.
5. Feelings aggrieved by the said judgments, the petitioners have filed the present revision petition.
of
6. Mr. G.R. Palsra, learned Counsel appearing for the petitioners argued that the judgment of conviction passed rt 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. Mr. Palsra argued that police are debarred from investigating cases under Sections 41 and 42 of the I.F. Act in view of the provisions of Sub Section (2) of Section 155 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short). Mr. Palsra further argued that in the notice of accusation put to the accused, no reference of violation of Rules under Section 41 and 42 of the I.F. Act was stated, which as per him was necessary especially because Section 42 of the I.F 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 Section 41 of the I.F. Act. In these ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 5 circumstances, according to Mr. Palsra, it was necessary for the trial Magistrate to state the precise Rules framed under Section 41 of the I.F. Act, for the violation of which the .
accused was required to be punished and therefore, notice of accusation was defective. It was submitted by Mr. Palsra that as the entire proceedings initiated against the petitioners were defective and as this very important aspect of the matter of had not been taken into consideration by both the learned Courts below, therefore, on these bases, he argued that the rt judgment of conviction passed by the learned trial Court and upheld by the learned Appellate Court deserved to be set aside.
7. Mr. Vikram Thakur, learned Deputy Advocate General, on the other hand, argued that there was no merit in the contention of Mr. Palsra 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 petition, 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. Thakur was ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 6 totally incorrect and not sustainable in law. On these bases, it was prayed by Mr. Thakur that there was no merit in the present appeal and the same be dismissed.
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8. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the Courts below.
9. Before proceeding in the matter, it is relevant to of take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction rt 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 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 ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 7 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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10. Keeping in view the consideration of law so declared by the Hon'ble Supreme Court, this Court proceeds to adjudicate the revision petition on merit.
11. Sub Section 2 of Section 155 of Cr.P.C provides of that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such rt case or commit the case for trial. The exception carved out in Sub Section 4 of said Section is that where a case relates to two or more offences, out of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
12. Admittedly in the present case, the case made out by the prosecution against the accused was for non-
cognizable offence. However, rather than following the procedure provided in Sub Section (2) of Section 155 of the Cr.P.C, the police officer carried on with the investigation of the non-cognizable case without there being any order of the Magistrate having power to try such case. This is further evident from the fact that FIR registered in this regard Ext.
PW9/A, dated 20.06.2002, nowhere contains that the same ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 8 has been registered on the basis of directions issued by the concerned Magistrate to carry out investigation in the case.
Therefore, there is merit in the contention of Mr. Palsra that .
the police could not have investigated the non-cognizable offence without the prior permission of the Magistrate and information should have been referred to the Magistrate concerned. This Court in State of H.P. versus Satpal Singh of @ Satta and another and the connected matter, Latest HLJ 2009 (HP) 732 has held that offences under Sections 41 rt and 42 of the Indian Forest Act are non cognizable as per Schedule II of the Criminal Procedure Code and if the police are not permitted by the Magistrate to investigate the case for such offences, the investigation carried out would vitiate entire proceedings being illegal. Accordingly, in view of the statutory provisions as well as law laid down by this Court (supra), in my considered view, the judgment and conviction passed against the accused by the learned trial Court and upheld by the learned Appellate Court are perverse and liable to be set aside. Both the learned Courts below have failed to appreciate that police officer could not have had investigated the case against the accused in the absence of order of Magistrate as contemplated under Sub Section (2) of Section 155 of the Cr.P.C and in the absence of any such order by the ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 9 Magistrate, the entire proceedings initiated against the petitioners were vitiated.
13. Similarly, there is also merit in the contention of .
Mr. G .R. Palsra, Advocate that the notice of accusation put to the accused was defective as no reference of violation of Rules framed under Sections 41 and 42 of the I.F. Act has been stated in the notice of accusation so put to the respondents. A of perusal of the judgment passed by the learned trial Court demonstrates that the accused have been convicted under rt Rule 20 of Himachal Pradesh Forest Produce Transit (Land Routes) Rules 1978, framed under Sections 41 and 42 of I.F Act. A perusal of the notice of accusation put to the accused demonstrates that there was no reference of violation of any Rule framed under Section 41 and 42 of the I.F Act put to the present petitioners. 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 Pradeswh 1985 SLC 274 has held that Section 42 of I.F 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 Section 41 of the I. F. Act and it was necessary for the trial Magistrate to state the ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 10 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 be .
defective. This Court further held that where there was allegation of violation of Rules, reference of Rule was necessary and absence of reference of Rules, more particularly, Rule 20 framed under Sections 41 and 42 of the of I.F. Act by the State Government in the notice of accusation which was put to the accused who were not given an rt 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. Accordingly, in my view, as there was no reference of Rule 20 framed under Sections 41 and 42 of the I.F. Act by the State Government in the notice of accusation which was put to the accused, the same was defective as per law laid down by this Court.
14. Therefore, in view of the above discussion, the judgment of conviction passed against the petitioners and the sentence imposed upon them by the learned trial Court in Police Challan No. 257-I/2001(2000) dated 12.01.2005 is set aside and judgment passed by the learned Appellate Court in Criminal Appeal No. 3 of 2005 dated 23.05.2008 vide which it ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP 11 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 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. This petition stands disposed of accordingly. Pending miscellaneous application(s), if any, also stand disposed of.
of (Ajay Mohan Goel) Judge rt 30th November, 2016.
(narender) ::: Downloaded on - 15/04/2017 21:38:53 :::HCHP