Karnataka High Court
P Nagaraj vs State By Shiralakoppa Police on 12 January, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGA},:OR_E
I)zu:e(I the 12m day of January 2012 I I
:BEFORE: )v-OT
H(.)I\?'BI.E MRJUSTICE fx/,0AGAN.;q7A"IT~«1;2§N '
CRL.R.P.N0.661 ;{ 20000/W A
CRL.R.P.N0s.9f39 / 2005, 775 / 200.5. 1399' / 2004, .1796
950 / 2005, 1509/ 2005..&1584 / 2005* ~ '~
IN CRL.R.P.No.66I/2003:
BETWEEN:
PNAGARAJ. _ 5 ,
MAJOR, s/0 Pm*17'ABAsAvA:AHi; -- _
NO. 172, 5W (7 R( >55. NEHRU .'STRE--T::T,v _
HOSAGUDD/\I:)u\HALLI',""'[I " 1 .
BANGALORE*'5'5€'''025~ '
... PETITIONER
(By Sn' 8 IVIAN!01'§M1\INF'ITIAIT'\ivIg_:AD\I§.)
AND?-_ I _ ' 0.
STATE 53' _SHi'RALAK_O'PPA" POLICE.
SHIRALAK_OI--.'PA.-SHIKARIPURA TALUK.
SHIMOGA D.IS'1"R'lCT'{
BEZTHE STATE PUBLIC PROSECUTOR.
_ A ;;1GH'Cd'uRT'BUILDING.
» 'VV"BA1vQAL0IRi:7;'550 001.
RESPONDENT
s;:«;.S_AiT'I15H R GIRJI, HCGP.) VTHTS CRLRP FILED U/8.401 & 397 CR.P.C PRAYING ASIDIC THE JUDGEMENT DTATED 3.4.2003 PASSED BY THE ADDL.S.J., SHIMOGA, IN CRL.A.NO.29/2000 CONFIRMING THE JUDGEMENT OF THE C.J . (J R. D N) & JMFC, SHIKARIPURA. IN C.C.N0.894/1995 DATED 14.3.2000 SO FAR AS IT RELATES 7 TO THE CONVICTING AND SENTENCING HIM II/S?--97 OF THE KARNATAI<.A FOREST ACT.
IN CRL.R.P.NO.£¥)59/2005:
BETWEEN: "
YELUPACHI MU NAVAR, S/O GHOUSE KHAN.
AGED ABOUT 55 YEARS, HOSUR VILLAG E. CHANNAGIRI TAI.III<,__ DAVANAGERE DISTRICT.
~ . PETITIONER (By Sri G LAKSHMEES}{vRAO,'--AQV:.j '_ AND:
STATE"I3Y:SAN'I*I;:z EH'EN'NuR' 'ROVEIZCE. DAv.ANAGER.: .[)l"STRIC'TV,_ _ ' * I H " ...RESPONDENT (By Sri SAT"ISH R_ I.RLII}"_.»SHCGP.) THIS I-»C_RL'.RR' FILED U/S397 R/W 401 CR.P.C To s'I:"I"'ASIDE THE ORDER OF CONVICTION AND ' ,.V'SENTE'NCAE:"I>ATED 9.9.1998 PASSED AGAINST HIM BY THE . "C.OU'RT'_~v'V.OR~,'TIIIs: C.J (JRDN) & JMFC, CHANNAGIRI, IN C.,_C.1\_I0.L2u343/19937 AND THE ORDER DATED 15.3.2005 PASSED BY THE ADDL. S.J.. FAST TRACK COURTHII.
2 " 'DAVAJNAGEREI IN CRL.A.NO.109/2000. IN CRL.R.P.No.775/2005:
BETWEEN:
JAVEED, S/O MUSASAI3. AGED ABOUT 30 SAGAR, SHIMQGA 1>1STR1c_T._ (By Sri MOHAMMED EAROOQ;
AND:
STATE BY 12_1'{:<f);--._ S ' HONNALI, BA\;A»r\1_A(:3EAR1T, D1STR_1CT'.*~~~~"
(By Sr.1.1..SA*1*1,§§§11*1;:_Q1B;J'1,:11CGPV.V) YEAR$- ' R/O NEAR GANGAPARAMESHWA°RA'1ROAD, A _ ;€1}ET1TToNE12' ... RESPONDENT T1_§11S' 11/S397 CR.P.C PRAYING TO SET AS1D"E.f1'HE <:S>_1'<'15jjjvE.'1:z'"BASS-ED BY THE 1 ADDL. SJ. FAST TRACK 1<"1r,1, 'A.1jA.\..?ANAGERE, 1N cRL.A.No.38/2002. DATED 7.9§'2A<.111<i CONFIRMING THE ORDER PASSED BY AA 1. E HLT 1<:R1S11NA1>13A.
S/O THANIA, AGED 32 YEARS.
AGRICU IIIU RIST.
KABBINA1 I.»"\LI.I VILLAGE, HORANADU KASABA HOBLI. MUDIGERE TALUK. CHIKAMA< EALUR DISTRICT.
.THE*C.11"T'111«_12.1:)N1é£ JMFC, HONNALI, 1N c.c.N0.25o/1998. _ 1_)ATE1)a"3C)'.7V.21T11,12. ' . 'INVTCRL i'12.._p*.~1:.'w}.i11B99 /2004:
POST.
fd K UMMAR S/O ABBLFBEARY.
AGED 40 YEARS.
R/O KULLAR VILLAGE, * BAREBETTL; POST. BANTAWALA TALUK;.__ D K DIS'['RlCT.
(By M /s HEODE ASSOCIATES. ADVS2) " 3 AND:
STATE OF KARNATAKA, _ --- _ BY STATE PUBLIC PROBE.CUT%{:)R. 'T HIGH COURT BUILDINGS, ' ~ BANGALORI«:z?;':--s<) 001:' --
» I RESPONDENT (By Sri R i;_1RJ3:j,--;
_.T};I1Sv.. ('j'E5-15;?RP._ Ffi2E'D--.:_[J/S397 R/W 401 CR.P.C PRAYINO s;_T}}:1,i . ORDER OF CONVICTION DATED BY THE P.O., FAST TRACK -- 1, CHIKAMATC/ru,,L':'1--2_. C}RL.A.NO.97/2002 AFFIRMING THE JLJ'DVGBMFZN1"'A_TN:lV2 CONVICTION AWARDED BY THE ADDL.
' _C'..j.(J'R.DN) ea ,jf\/iT%*C, MUDIGERE, DATED 24.10.2002 IN C';C.NO'.T5'2~B:/ 19299. ' ~_ i f96j2005:
Y .AMr.ABDU1,RA1*11M.
, AGED 31 YEARS.
5/"O IBRAHIM BIC/XRY.
R/AT PANCHA;1 HOUSE.
ERA POST. BAI\"WVAL TALUK.
PETITIONER [By Sri P P HIFZGDE. ADV.) ié'ET1TIO'NERs ' T ' " ._ D--AVAI'\IAGzERE*Z I>I"s"'I'RIcT.
AND:
THE STATE BY ix' F O. BALCHONNU R. (By Sri SATISH ix' GIRJI, HCCP...) THIS C'Rl..RP FILED'Q/'5:B97"-ED: 401 CR.P.C PRAYING TC) SIZT AS!-DE THEII UVIDGNIDNT DATED 7.10.2003 PASSED BY 'HITS "z'szffgII\/I»I«fc, N.R.PURA, IN C.C.NO.434/lfimb' W:H.!.CBH~V.lSACONFITU§J1ED BY THE PRL. DIST. & 5,033._§':<II/III§MAc«ALUR';' -:AS.....P7ER ORDER DATED 3O.8.2OOf3"h\'JQR-I;--;:VI§,..NQ--;._1V'16/?D(§.3. I IN CRER.P,.N"I').1§;3:€jO/2305;' ~ ' ' I ABBASALI. _ s/0 ILAIIvI--I+;I:I> AGED 3I3..'Y'E.;\I<:e,;_. I . THIDIRUCHAQEI C}.:1AN1'~JAC}IRl"'!T.Al,U K, PETITIONER _ I,A_I~;:+';I WIEESH RAO. ADV.) ANDI"
BTATE BY 5I\é\"i'E iEBENNUR POLICE. V 'DAVANAGERLC DISTRICT.
RESPONDENT (By Sri SATISH R GIRJI. HCGP.) T THIS (f'N.L.RP FILED U/S397 R/W _4'C1gr_;R.'Rc PRAYING TO S151' AS1DE THE ORDER OF CONE/ICTIONS SENTENCE DA'1ED 9.9.1998 PASSED AGA1N»Sij~111M BY 1j11E S C.J (JRDN) {<1 .1MEc, cHANNAc§1R1,'_' 11-1, C_.c:.'1\1D.1959/1995 7 AND THE ORIHCR DATED 15.3.2O'Q5:'lNA'CRI§;A;NO.«.1O§/'~2C)OQ ON THE F111; 1111' THE A1)D_L.<~--._S.J., 'EAST. TRAC_Ii«-vCQ?{JRT~II;S' DAVANAGERE.
IN CRL.R.P.N<1.1:3O9/2005:
BETWEEN:
1. SR1 SR11\11vASA@ BHA.GAvA1\1, 1 ' S/O MDN1vE1\11§AT1%x1>1>A,"' AGED 1SA1ci;>,_1,r.1:' ZBXEARS; 9 1 R/AT S,{f\T{.J:\PLi»R '"rQW11,..r %A1x1EK~A11'11'ax1_,L1 " " "
SR1 SID 1.::A1.E<'1"1:-1A;11, _ - __ . 'S_/ Q NE 1:: 1<~1,'1 1::A'1f1fI*1\/1LJ1.NIYAPPA. A(:v.ED A1s'<1V.>11"*1i"25 YEARS, R/A1:SA11.1;1x11UR'TowN.
' " ANE1<ALj1';«x1,u1<.
' _____ PETITIONERS Ex) ' ;f1By S1111'<1§"1;1.:;1':11A1)HAR, ADV.) 'AND: S S STATEFOF KARNATAKA.
* BY SARJAP11 R vo1,1cE STATION, . _BA«NGALORI{ 1 >1s"I'RIC'I'.
RESPONDENT 1' (By Sn SATISH 11 GIRJI. HCGP.) THIS <TE\'L.RP FILED U/S397 R/W 401 CR.P.C PRAYING TU }*{i£\1'I*ZRSE AND SET ASIDE THE JUDGMENT, THESE PETITIONS COMINGWON DAY, THE COURT MADE THE Fcg'LLoyv1No_; -I 'A --. ' QRDER2 In all these petition.s"'which"ogre brefefred by the respective accused lcolrivicted by the trial court in resibect .4offences'g«fi)unishable under Sections€~37'9,'VéAtnd_V sections 86 and 87 of the l__{ye1rria.tal{§3yyv eind the conviction and sen1:,ence_'l'irnposlé'd wh.i_ch_v_Jere confirmed by the lower appellate in question and common questionfl"ofV_Vlawarises"in all these matters and therefore i,.are'vbeiné disposed of by this common order. ._ these matters were referred to a Division Ben<:h inflview of the View taken in the case of Ningappa it ,Bhirndppa Gundammanauar and another Vs State of l»l*AQ¢ane ULR IQZBICAR 897) benngin conflKfi:wdfl1the View taken subsequently in the case of Bhanuprakash A. & Another Vs. State by the A.C.F. (2006 Crl.L.J. 4292) by a learned Single ud e of this court and therefore, the Division Bench was asked to clarify the p'osvit.i_oi'*i___ii1v law. " .
3. Consequent to the __referen(_:e to' . L4 the Division Bench to resolve'-._the"position in law' regard to the requirementV_0f_Vestabl,ilshingloeforethe court proof of compliance'.,:of,_SectionB .l62V(§3) of the Karnataka Forest and e_ffe_ict_of non compliance of Section 62(3) an.d,:'_7.1-A "'the'*:VAClt, the Division Bench considered the: 'pQ_ii1ts referred to it by the learned_:-'Single i--n.i-Blftai'1uprakash's case:
criminal trial, the proof i.e., the reporting of if seizure" confiscating authority u / s 71- 'thue seizing authority is not relevant and n:oi':rriaterial bearing upon the connected criniinal prosecution?
AA pp 2.-...'»lVhether the non--compliance of Section 62(3) and Section 7l--A of the Act would adversely affect the prosecution in the criminal proceedings? E'/ 10 The aforesaid points were answered by the Division Bench at para. 12 as under:
" It is no doubt correct to say proceeding u/s 7l-A of the _Ac.t"_'~--..igs independent proceeding}; proof compliance of reporting 1"uV/62(3)'(a_)' to authorised Officer before the lc;'iminlalj.court is not legally necesvsiary. _uBut;= be warranting for 'the to prove the fact of seizure: ll of the proceeding u/s' " ' 1 . _ the panchanaina relating jhavleto be produced as: ya material to prove the 'Vii-1 other in law it is not Lp1=ov'e__'the submission of report u*/is 62(3)(a)Alaa.d'.initiation of proceedings u/s ' = V-Hgovvever, the prosecution has to prove ijthe xgfactl l'o"f"seizure. In that regard, the of documents relating to Section 7l~A, by the prosecution may be as a corroborative piece of x -.,.evidence. In that view, the said documents relating to proceeding u / s 7l--A may become necessary and relevant."
%.
I I
4. ' li therefore clear from the the Division Bench that, in orders to proV'e"lfactumv of . L' seizure of ciocrtiments. production to 62(3)(a) and 7l~A bV_y~..__the"'-prosec»utfio.n.,_V necessary as a co1'roboratii/le«.V'piece and the documents yelatiiligflfptt) u/s H71-A may become necessary and 'rele\fWlt,
5. 5. position in law, all these. f[_lv&'1f'l'f;":l.'S:>;u}1{l1,1_ be V examined. ft.' '' p /2003 is preferred by A-1 in the.trialfcoui'1..H.' in: C'IC.N0.894/ 95 and the facts of the said icasepbrieflystatied are that, the 013.1. of Shikaripur V _ gettin'gA::'<'1fedible information on 20.10.95 at about " .A5'.=3O.Va.'rfi;_.lp':{;ilie>i)pecl the lorry bearing N0.KA 01-2066 and onppchecltiiig the said lorry, he found 912 kgs of 2 'ls'andalwood worth Rs.9l,200/~ being transported in the lorry along with 200 bags of jaggery. A suomoto ' complaint was filed leading to the case being registered against the tour accused persons. At the trial, the prosecution exa d 11 witnesses and produced 10 \> I2 documents aiong with M.Os.1 to 10. Aftier;"rec'Qr.dirijglof the accused statement and no defenceV__e\>=i.de.ri'ce'_ being placed, the learned trial all if u/s 379 and 411 of IPC pr,/_w sections Karnataka f*'orest Act. Aclciised were sentenced to one year irn-prjisonrnent lwithp_..1§%s.2,000/- fine each 111 respect the};-,l(.)ffe'r1:cev.l'punishable under Section 41 1 wgf and 4 were sentenced i_lt>l};>ii<}r for the" offence punishable under Slectioi;»iV all the accused were sentelncvedfto in respect of the offence punishable 86 and 87 of the Karnataka Forest Atstfxvith. fi"._ielW'olf Rs.5,000/-- each with default 'l'ii'<f"vaxspellate court dismissed the appeal ' ;l'prefe.ifred«viVb5.__the accused. Aggrieved by the conviction * and t:olrii'firli'iiriaii<u)n by the appellate court, this petition is filed by Ali Nt1ga1'&1ja in C.C.No.894/95.
7. t'i*1.R.P.No.959/2005 is preferred by the accused in <fT.C.No.2343/97 and the facts of the said case briefly .~;iated are that, on 10.12.1994 the CPI on /9% receiving Credible information that the accuse'd':.h<ad stored the sandal wood in his house, at CPI along with his staff raided ' 1.
at Hosur \"lll;lg€ and on search, CPI Afounidfg-andal wood pieces weighing about 216» Kgs iii: lS£._bags--ViworL'hi' Rs.2l,600/--» and the accuyseldshadp no'p«errniti§or licence for the sarm: :--ulCl the same and a case was .ifegist§§red,:fAtV--. 'the prosecution examinedfiv 6 documents along with recording of the accused stat:eme1it"T:uitl hr) .gd"efent:e-- evidence being placed, the learned trial' the accused u/s 379 and 41,1. of i';~t.t5' slections 86 and 87 of the Karnataka Forest Act. A'(:'(:;u-sed was sentenced to undergo R.l. for a'*per.iod"'oil"-niiltie months in respect of the offences .8 under Sections 379 and 411 of IPC and was sentenced to undergo R1. for 3 years and to pay a fine of 2 'lRsp.l(V)s,OOO/ vacli for the offences punishable under Sections and 87 of the Karnataka Forest Act with default semcnce The appellate court partly allowed the appeal p1'ei<*i'n:(l by the accused. Aggrieved by the 26 conviction and confirmation by the appeliate_ co 'art, ,this petition is filed by the accused inc» C.C.No.2343/97. _ _ _
8. Crl.R.P.No.775/é0.Q:p5,__is 'pr-e_ferred by the accused in __facts of the said case briefly stated 1.30 a.m. the accused wfa4s"'A;found._ in ll kgs of sandal wood by committing theft of ll a case was registered for the under Section 87 of the Karnatlalga Section 379 of the IPC. At the trial, the.p__1fQsecution examined 5 witnesses and documents along with M.Os.l and 2. After ._ V"lrecording'~l:o'f'.. the accused statement and no defence Sevidencefbeing placed, the learned trial judge convicted .. ed the "accused for the offence punishable under Section of the K.F.Act r/W Section 379 of the IPC and was i sentenced to 3 years 81. and to pay a fine of Rs.5,000/-- with default sentence. The appellate court dismissed the appeal preferredgy/the accused. Aggrieved by the appellate court, this petitilon is filed by th_eV.V_a-ccused Krishnappa and Umrnar in C.C.No.526/99, « Q :,
10. cr1.R.P.No.1796/2oo'5id1sy_ prelfefited db; thef7. it accused in C.C.No.434/98 of.
case briefly stated are lv.9y7iv-v:at:..:abou:t 5.00l pm. the Range Forest Balehonnurpvvialong with his staff checked No.KA 19 4926 which was driven with another near the in Sy.No.43 of Magundi road, and found san:d_alwooVdf'--",bill'ets'Laiad- stumps which were 13 in numbers 170 kgs. The accused were carrying sandalwood billets without any pass, orvlicence for the same and a case was registered V accused. At the trial, the prosecution exarnined' 3 Witnesses and produced 5 documents along AA to 40. After recording of the accused 'i..stfatement and no defence evidence being placed, the learned trial judge convicted the accused for the offence punishable under Section 87 of the Karnataka Forest >r Act r/w section 379 of the IPC and the_.--accusj'edy sentenced to three years imprisonment.a:nd"--a finefof Rs.5,000/- fine with defaultiziplsenitencei 1* court dismissed the appeal preferred the 1 a¢:;1ised~._ Aggrieved by the convictionpilpllland by 'the appellate court, petiltlis-nllu.:l:i.efifi.led the accused Abdul Rahim in c.c.fNo;4a4 ll: preferred by the the facts of the said case' on 10.12.1994 the CPI on receiying that the accused had stored the .sa1'1Vdal\.ivoold in his house, at 7.00 a.m., the alorig Vhislvstaff raided the house of the accused I and on search, the CPI found sandal ' 1'.wdod_'j§i:'ie¢1es weighing about 216 Kgs in 5 bags worth Rls..2ll1;;6hC)4O/-- and the accused had no permit or licence 2 if 'for the same and as such, the CPI seized the same and lajcase was registered. At the trial, the prosecution I examined 4 witnesses and produced 6 documents along with M.Os.1 to 7. After recording of the accused Z statement and no defence ev=i:dence.av being place.d,'vt.:;tlie learned trial judge convi.c'te.d theA.accuse.d'll'l'1'i/s_.3719 411 of IPC r/W sections Shetland 8f7'-offt'helVKarnataka Forest Act. Accused was sente_n'c.ed to '''undergo R1. for a period of nine of the offences punishable under Sectioiisv of IPC and was sentenced for Bvfyears and to pay a fine of Rs. offences punishable under ti' 3 F 'th liep0z£.ptg1e§ll2{fe1rc1c§11E%f,(£}i)arfl1y€§$lloA'\2§ed"t]lie appeal, accused. Aggrieved by the conviction and confirrnation by the appellate court, this _Vp'etitEione~i_s by the accused Abbas Ali in ~ 1050/95.
V___v'l2;a?'fCrl.R.P.No.l5O9/2005 is preferred by the up aagasea in C.C.No.l12/2001 and the facts of the said " ycase briefly stated are that, on 7.2.2000 at about 7.30 a.m., by the side of land of one Thimmareddy, the accused persons were cutting sandalwood and when the sub inspector of pg? on getting credible information, 19 visited the spot, the accused tried to run away from the spot and A--3 was caught sandalwood pieces weighing 34 kgs valued at Rs. 1,700/-- were seized registered. At the trial, the prosecution.__:'e):arninfed$_"i witnesses and produced 2 docurnents 'alongv:M'th'M.OV;'.1. 7 After recording of the accused statement pa"nd"no Cl4efen'c'--ep evidence being placed, the"'le:arned trial* the' accused U/S' offence punishable under the K.F'.Act r/w Section dwere sentenced to undergo. years and to pay a fine of sentence. The appellate preferred by the accused.
Aggrieveda byythe 'conviction and confirmation by the this petition is filed by the accused in X _ 1200 1.
.. Cr1.R.P.No.l584/2006 is preferred by the .V:ac"Acused in C.C.No.575/O2 and the facts of the said case briefly stated are that, on 2.6.92 the RFC along with his staff were on duty near Koppa Bus stand and }r 20 they saw two persons standing in the Koppa bus stand with air bags. On seeing the forest squad, theaccused persons tried to run away. The forest officials them and caught hold of them and on exainxinationll; found 36 sandalwood billets"'weightl.ng.g'lV2f«._Kgs:;: lhefft if accused had no permit or licen.ce':f_or same 'arid has such, the RFO seized was registered. At the 'itrial, efcamined 4 witnesses and produce'dAV_fi/if with M.Os.l and 2. After' statement and no defence "the learned trial judge of the Cr.P.C. for the Sections 84, 86 and 87 of the Karnatalra A-.vEA'o1*est.l'.Aczt r/w 379 of IPC and A-1 was .Vsientienced«_.to undergo imprisonment for a period of two 1 pay a fine of Rs.l0,000/-- with default s"ente'nc'e';° The appellate court dismissed the appeal "V is preferred by the accused. Aggrieved by the conviction and confirmation by the appellate court, this petition is 'A filed by the accused in C.C.No.575/2002. 21
14. I have heard the learned counsel petitioners and the learned Government respondent-State and perused records' case: " =
15. In View of the opinion ren_dered~ Division Bench in respect ithe 'Sections 63 and 71-A of the Ezoresti'Acti',:'x2vhether the judgment of conviction and sentenced' u fcan. be held to be sustainable islthe point for .conscideration.
161. counsel Sri. Leeladhar app,earing* thelpetitioners argued that, in viewlhof 'the by the Division Bench, the prosecutlion_:Vwi1l'-- haveto prove the factum of seizure and itis notnecessary to produce the proceedings or V the learned Magistrate in View of Section .' 62(3) K.F.Act, yet as has been held by the Division the documents relating to proceedings under 2 'Section 62(3)(a) and 7l--A become necessary and relevant and in the cases before hand, no such l corroborative piece of evidence was placed to prove the factum of seizure. Although mahazar has been marked 35 22 as one of the exhibits, that would not serve the requirement of section 62(3)(a) and 7 l~A of the : Act more so when the forest property seized tovfépbe sandalwood. Apart from the aforesaid. mahazar witnesses have turned hosf17.ile,in. is-ornle-.."of:.;;t}1e cases and in some cases' V'vtritnes'sAes..Vwer3e also not examined and from: Bieven the investigating officer any corroborative piece of evidence of seizure in accordancei. 7l--A of the Forest Act. the seizure having not been' with law, the judgment of conviction passed cannot be sustained arldvhfence petitvions be allowed. hvyfliearned counsel appearing for the other p«etiti_oI1ersA also adopted the very same arguments ., Vssubrnitted by Sri. Leeladhar.
18. On the other hand, learned Government 'A Pleader Sri. Satish R. Girji argued that, in all these cases the mahazar has been marked in evidence and the k 4