Delhi District Court
Salim And Ors vs State on 20 March, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. Rev No.35/2020
CNR No. DLST01-000860-2020
1. Sh. Salim Saifi
S/o Harbans Singh
R/o H. No. 2153, L-1 Gali No. 10,
Sangam Vihar, New Delhi
2. Sh. Shiv Dhar Upadhay
S/o Sh. Ramji Upadhay
R/o H. No. 2089/10, Block C,
L-2, Sangam Vihar, New Delhi
3. Sh. Satender Singh
S/o Vijay Bahadur,
R/o H. No. 2172/10, L-1,
Sangam Vihar, New Delhi
4. Sh. Lalit Singh
S/o Sh. Umesh Singh
R/o H. No. 2174/10, L-1,
Sangam Vihar, New Delhi.
5. Sh. Shiv Prasad
S/o Sh. Sugriv Ram
R/o H. No. 2154/10, L-1,
Sangam Vihar, New Delhi.
6. Sh. Ramkewal Kushwaha
S/o Sh. Madhai Kushwaha
R/o H. No. 2140/10, L-1,
Sangam Vihar, New Delhi
7. Sh. Lal Bahadur Moray
S/o Sh. Sant Ram Moray
R/o H. No. 2186/10 L-1,
Sangam Vihar, New Delhi
8. Sh. Manish Shrivastav
S/o Late Sh. Om Prakash
R/o H. No. 2174A/10, L-1
Sangam Vihar, New Delhi
9. Sh. Sailash Gupta
S/o Sh. Banarsi Lal Gupta
R/o H. No. 2072/10, L-1,
Sangam Vihar, New Delhi
10 Mohd. Farukh Digitally signed
S/o Shabbir Ahmad by
PURSHOTTAM PURSHOTTAM
PATHAK PATHAK
Date: 2024.03.20
17:16:00 +0530
Cr. No. 35/2020 Salim and Ors Vs. State Page No. 1 of 12
R/o H. No. 2183/10, L-1,
Sangam Vihar, New Delhi
11. Sh. Ram Bhajan Prasad
S/o Late Sh. Chanderpal
R/o H. No. 2130/10, L-1,
Sangam Vihar, New Delhi ......... REVISIONIST
VERSUS
STATE N.C.T. OF DELHI ......RESPONDENT
DATE OF INSTITUTION : 25.01.2020
ARGUMENTS HEARD ON : 06.12.2023
DATE OF JUDGMENT : 20.03.2024
JUDGMENT
1. In the instant revision petition, the challenge of revisionist is to order dated 31.01.2019 of Ld. MM-03, South District, Saket, passed for taking cognizance of the offence alleged u/s 8/24 of Delhi Preservation of Tree Act and process against the revisionists.
2. So far as factual scenario of case is concerned, a complaint was made to the forest officer on 02.09.2013, by the complainant stating that on 11.08.2013, the accused persons have cut the mulberry tree, which has been standing in front of her house for about 20 years. Pursuant to which a complaint from Department of Forest and Wild Life was received vide diary no.F64/To(S)/TOC/13- 14/6106 to PS Neb Sarai on 25.02.2014 and on the basis of that complaint FIR no. 373/2015 was registered on 21.03.2015.
3. After investigation charge-sheet was filed on 04.01.2019, upon which cognizance was taken on Digitally signed by Cr. No. 35/2020 Salim and Ors Vs. State Page No. 2 ofPURSHOTTAM PURSHOTTAM 12 PATHAK PATHAK Date: 2024.03.20 17:16:05 +0530 31.01.2019 and summons were issued to the accused/ revisionists.
4. The said impugned order read as follows:-
"Heard. File perused. I have gone through the charge-sheet, annexed documents and the statement of witnesses recorded u/s 161 Cr.P.C. I take the cognizance of the offences.
Issue summons to accused and notice to his surety through concerned IO returnable for 27.03.2019"
5. Being aggrieved by the impugned order dated 31.01.2019 revisionists have preferred this revision petition on following grounds:-
i. Ld. Trial Court has failed to appreciate the fact that according to Delhi Preservation of Tree Act 1994, only Tree/ Forest Officer can conduct enquiry upon this kind of incident which is clearly laid down in the Section 31(d), therefore, taking the cognizance and issuance of summons vide order dated 31.01.2019 to the accused persons/ revisionists is bad in law.
ii. Ld. Trial Court has failed to appreciate the fact that there is a delay of four years in filing the charge sheet by IO, without any explanation or ground of delay, whereas the maximum period stipulated by Cr.P.C. for filing the charge-sheet is 90 days.
iii. Ld. Trial Court had issued summons without taking the cognizance, that there is delay of two years in lodging the FIR.
Digitally signed byPURSHOTTAM PURSHOTTAM Cr. No. 35/2020 Salim and Ors Vs. State PATHAK Page No.PATHAK 3 of 12 Date: 2024.03.20 17:16:09 +0530 iv. Ld. Trial Court has erred in issuing the summons without considering the fact that there is no statement of accused persons under Section 161 Cr.P.C. on record and also there is no rukka or any call details of the complainant in the chargesheet.
v. Ld. Trial Court has failed to appreciate that the investigation was to be done as per the provisions provided under Delhi Preservation of Tree Act, 1994.
vi. that the offence u/s 8 of DPT Act is a non cognizable offence and police has no power to investigate the offence under DPT Act.
vii. that the Tree Officer has been empowered to perform the acts as mentioned in Section 31 of DPT Act which has been callously and deliberately ignored by the Ld. MM.
6. I have heard the rival submissions advanced by counsels for both the parties. Perused the record.
7. Ld. Counsel for the revisionists argued that Section 8 of DPT Act is an non-cognizable offence and police has no power to investigate the offence under DPT Act. He argued that forest officer was not involved in the investigation as stipulated by DPT Act, which shows that Tree Officers has been empowered to perform the functions mentioned in Section 31 of DPT Act. He further argued that the Ld. MM failed to apply his judicial mind with regard to violation of Section 22 of DPT Act, as in the Cr. No. 35/2020 Salim and Ors Vs. State Digitally Page No. 4 of 12 signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.03.20 17:16:14 +0530 present case no Forest Official was involved for investigation. He further argued that there is unexplained delay in filing of complaint, FIR and the chargesheet.
8. On the other hand, Ld. counsel appearing for respondents and Ld APP refuted the said contentions by arguing that the present criminal revision has been filed in order to delay the proceedings. They further argued that there is no infirmity in the impugned order as the same has been passed keeping in view the facts and materials available on record and therefore, the instant revision petition is liable to be dismissed.
9. Delay in invoking revisionisary jurisdiction has already been condoned after hearing both the parties on 13.09.2023.
10. I have considered the rival arguments advanced by both the sides and have carefully considered the Trial Court record.
11. The first and foremost contention of Ld. Counsel for the revisionists is that the offence under Section 8 of DPT Act is a non cognizable offence and the police has no power to investigate the offence under DPT Act.
12. Section 18 of DPT Act provides Power to arrest without warrant. Section 18 of DPT Act reads as:
Power to arrest without warrant: (1) Any Tree Officer or a Forest officer not below the rank of a Forest Ranger or a Police Officer not below the rank of a Sub- Inspector may, without a warrant, arrest any person reasonably suspected of having been concerned in any offence under this Act, and such person refuses to give his name or address or gives a name or address which the concerned officer has reason to Digitally signed Cr. No. 35/2020 Salim and Ors Vs. State Page No.by 5 of 12 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.03.20 17:16:18 +0530 believe to be false or if he has reason to believe that the person will abscond.
(2) Any person arrested under sub-section(1) shall be informed, as soon as may be, of the grounds for such arrest and shall be produced before the nearest Magistrate having jurisdiction in the case within twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate.
13. As per Section 18 of the DPT Act, the police officer not below the rank of a Sub-Inspector has been given power to arrest any person reasonably suspected of having been concerned in any offence under this Act.
14. Section 2(c) of Cr.P.C. defines cognizable offence as :
(c)"cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
15. Hence, as per Section 2(c) of Cr.P.C., in case a Police Officer has been empowered to arrest any person without warrant in any special enactment, the said offence of the special enactment shall be treated as a cognizable offence.
16. In view of provision of Section 18 of DPT Act and Section 2(c) of Cr.P.C., there is no force in the contention of revisionists that offences under the DPT Act are non cognizable.
17. Another contention of revisionists is that as per Section 31 of DPT Act , only Tree Officer has power to investigate the offences under DPT Act and police has no power to investigate the offence under the DPT Act.
Cr. No. 35/2020 Salim and Ors Vs. State Page No.Digitally
6 of 12 signed
by
PURSHOTTAM PURSHOTTAM
PATHAK PATHAK
Date: 2024.03.20
17:16:24 +0530
18. Section 31 of DPT Act reads as :
Investing Trees Officer with certain powers.-(1) The Government may, by notifiation, invest the Tree Officers and other officers with all or any of the following powers, namely:-
(a) power to enter upon any land arid to survey, demarcate make a map of the same;
(b) powers of a civil court to compel the attendance of witness and the production of documents and material objects;
(c) power to issue a search warrant under the Code of Criminal Procedure, 1973(Central Act 2 of 1974);
(d) power to hold enquiries into offence under the, Act and in the course of such inquiry to receive and record evidence;
(e) power to take possession of property under the Act.
(f) power to direct release of property or withdrawal of charges; and
(g) power to require any person to plant tree or trees of suitable species in adequate numbers on any land owned or occupied by him.
19. A plain reading of Section 31 of DPT Act shows that a Tree Officer has been empowered to perform the acts as mentioned in Section 31 of DPT Act. There is no provision in DPT Act which specifically prohibits only police officer from conducting investigation in respect of offences committed under the DPT Act. If the intention of the legislature was that only Tree Officer shall be conducting the investigation in respect of offences as mentioned in the said Act, then a specific provision would have been incorporated thereby debarring the police officer from conducting investigation in respect of offences committed under DPT Act.
Digitally signed by PURSHOTTAMPURSHOTTAM PATHAK PATHAK Date:
2024.03.20 17:16:28 +0530 Cr. No. 35/2020 Salim and Ors Vs. State Page No. 7 of 12
20. As per Section 18 of DPT Act a police officer not below the rank of Sub Inspector has been empowered to arrest any person reasonably suspected of having been concerned in any offence under the DPT Act without a warrant which shows that there was no intention on the part of legislature to exclude the police officers from conducting investigation in respect of offences as mentioned in the DPT Act.
21. Another contention of Ld. counsel is that the chargesheet has been filed beyond the period of limitation and the Ld. MM has taken cognizance on a time barred chargesheet.
22. Section 468 of Criminal Procedure Code provides that:
Bar to taking cognizance after lapse of the period of limitation (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of the offence of the category specified in subsection (2), after the expiry of period of limitation.
(2) The period of limitation shall be:
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;Digitally signed by PURSHOTTAM
PURSHOTTAM PATHAK PATHAK Date: 2024.03.20 17:16:34 +0530 Cr. No. 35/2020 Salim and Ors Vs. State Page No. 8 of 12
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be the most severe punishment.]
23. Therefore, under clause (b) of section 468 Cr.PC, the period of limitation is one year, if the offence is punishable with imprisonment for a term not exceeding one year. The offence u/s 8 DPT Act is punishable with imprisonment which may extend to one year and therefore, the period of limitation shall be one year from the date of commission of offence. As per section 469 of Cr.PC, the period of limitation in relation to an offender shall commence on the date of the offence. The date of offence is not disputed which is 11.08.2013. The challan was filed on 04.01.2019 i.e after more than 5 years and thereafter, cognizance of offence u/s 8 DPT Act was clearly barred by section 468 Cr.PC.
24. Having once come to the conclusion that the offence which the petitioner can be accused of or tried is punishable under section 24 DPT ACT, there was no option open to the Magistrate than to resort to the provisions of section 468 Cr.P.C. As sub-clause (b) of Sub- Section (2) provides that the period of limitation shall be 1 Digitally signed Cr. No. 35/2020 Salim and Ors Vs. State Page No. by9 of 12 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.03.20 17:16:38 +0530 years, if the offence is punishable with imprisonment for a term of one year but not exceeding 1 years.
25. Under section 473 the delay can be condoned and this section confers power on every competent court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. The expression `in the interest of justice' does not mean in the interest of prosecution. What the Court has to see is `interest of justice'. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. The court has also to see the nature of offence committed and the reasons of delay. There is no application on behalf of the prosecution to condone the delay in this case. The accused is facing this case for last several years for felling tree which is an offence of u/s 8 of Delhi Preservation of Trees Act 1994, for which, in case, accused is convicted, the maximum punishment shall extend to one year. Reliance is placed on the decision of this Court in Surinder Mohan Vikas Vs. Ascharaj Lal Chopra,1978 AIR 986, where, while dealing with the provisions of section 468 of the Code of Criminal Procedure, Hon'ble Court observed that :-
" it is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar Cr. No. 35/2020 Salim and Ors Vs. State Page No. 10 of 12 signed Digitally by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.03.20 17:16:44 +0530 to the taking of cognizance has been prescribed under section 468 of the Code of Criminal Procedure and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case."
26. Guidance may also be taken from the judgment of Srinivasa Gopal vs Union Territory Of Arunachal 1988 AIR SC 1729, where the Hon'ble Court refused to condone the delay in an accident case observing that:
"Having regard to the nature of offence there is enormous delay in proceeding with the criminal prosecution by the respondent-91/2 years for a trial for rash and negligent driving, is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person in suspended animation for 91/2 years without any cause at all- and none was indicated before the learned Magistrate or before the High Court or before us, cannot be with the spirit of the procedure established by law..
27. It was held by the Punjab and Haryana High Court in the case of Ghansham Dass v. Sham Sundar Lal, [1982] Crl. L.J. 1717 that cognizance taken by the Magistrate without deciding the point in limitation was beyond his jurisdiction.
28. In the instant case, undisputedly, the FIR no.
373/2015 u/s 8/24 of Delhi Preservation of Tree Act was registered on 21.03.2015, whereas, the complaint of such offence in form of chargesheet was made before the Magistrate on 04.01.2019. Thus, for the chargesheet having been filed beyond the period of limitation prescribed u/s 468 Cr.P.C., the cognizance of charge sheet was liable to be declined. In view thereof, I feel no hesitation in holding that impugned order suffers from, illegality, infirmity and cognizance taken by Ld. Magistrate is bad in law. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.03.20 17:17:13 +0530 Cr. No. 35/2020 Salim and Ors Vs. State Page No. 11 of 12
29. Accordingly, revision is allowed. The impugned order dated 31.01.2019 is set-aside.
30. TCR alongwith a copy of this judgment be sent to the Ld. Trial Court.
31. A copy of this judgment be supplied to Ld. Counsels forthwith.
32. The revision file be consigned to the Record Room after due compliance. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.03.20 17:17:19 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 20th DAY OF MARCH, 2024 SAKET COURTS: N.D (This judgment contains total 12 signed pages) Cr. No. 35/2020 Salim and Ors Vs. State Page No. 12 of 12