PETITIONER: STATE OF J. & K. Vs. RESPONDENT: ROMESH CHANDER & ORS. DATE OF JUDGMENT: 27/11/1996 BENCH: K. RAMASAWAMY, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:
O R D E R
Delay condoned.
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the order of
the High Court of Jammu and Kashmir, made on April 23, 1992
in Criminal Revision No. 6/92. The respondents 5 to 7,
namely, Sudhir Kumar, Sharat Kumar and Davinder Kumar were
granted lease to extract timber from compartment No. 55-56,
Bani Range of Billawar Division. It is not in dispute that
the lease of April 28, 1978 was to be effective upto
December 31, 1986. It is stated by the respondents that for
certain other purposes, it was extended upto December 31,
1987. We need not record any findings in that behalf. It is
only noted as asked for. The Government have passed an order
on February 22, 1985 directing the aforesaid three
contractors to complete the extraction of the timber upto
September 3, 1984 and thereafter unsalvaged timber would
stand vested in the State. Admittedly, this is only an
administrative order. On September 24, 1985, the Jammu and
Kashmir State Nationalisation of Forest Working Act, 1985
was enacted. Thereunder, all timber lying within demarcated
forests stood vested in the State w.e.f. the aforesaid date
notwithstanding any lease or agreement subsisting as on the
date. The Government order dated November 22, 1984 was
stayed by the High Court on March 12, 1984 by an order in
W.P. No. 48 of 1983 and C.M.P. No. 2120/84. When the
respondents filed the Writ Petition No. 968/85 challenging
the validity of the Act, the High Court passed an order as
under:
“The DFO Billawar is appointed as
Commissioner who shall go to the
launching sites in respect of the
compartment No. 55-56 Basohli,
Bani, Range Billawar Division and
shall ensure that on timber is
launched in the nallah after the
passing of this order i.e. 13th of
November 1985 by the petitioner.
The DFO Billawar shall however not
interfere with the timber already
launched in the nallah. The said
timber shall be permitted to be
brought by the petitioner, through
his labour at his own risk and cost
and without prejudice to the rights
of the parties upto the western
bank of river Ravi, opposite to the
collection point Shahpur
Kandilocated on the eastern bank of
river Ravi within the State of J &
K. The petitioner shall have the
timber already launched in the
nallah brought to the western bank
of river Ravi, as noticed above,
under the supervision of
DFO/Billawar or his nominees. The
petitioner shall have no right or
lien over the timber so brought to
the western bank of river Ravi.
Save as may be decided subsequently
by the Court on the disposal of the
writ petition. The timber when
brought to the western bank of
river Ravi shall be stocked there
against proper receipt and shall
remain under the charge and control
of the Forest Department and the
petitioner shall not cause any
interference in that regard. This
may subsequently be varied or
modified in that behalf by either
of the parties after notice to the
opposite party.”
Thereafter, the Act came to be struck down by the High
court on December 13, 1985. The Jammu and Kashmir
Nationalisation of Forest Working Ordinance No. 5 of 1986
was passed on January 31, 1986 with retrospective effect
from September 24, 1985. It would appear that the Ordinance
lapsed and subsequently another Ordinance was issued on
December 16, 1986 which was replaced by the Jammu and
Kashmir Nationalisation of Forest Working Act, 1987 which
came into effect from April 21, 1987 with retrospective
effect from September 24, 1985. Since the Ordinance 5 of
1986 was given effect from September 24, 1985.
Section 3(a) of the Ordinance 5 of 1986 envisages that
“notwithstanding anything to the contrary contained in any
law, rule instrument, agreement or contract or in any
judgment, decree or order of any court or Authority as from
the commencement of this Ordinance, no person shall fell any
tree or convert any timber or carry on the felling of any
tree or conversion or removal of any timber in any
demarcated forest of the State …”. Section 9 prescribes
penalty and states that “any person who contravenes the
provisions of this Ordinance or abets the contravention
thereof, shall be punishable with imprisonment for a term
which may extend to five years but shall not be less than
three years.” The appellant filed an FIR alleging therein
certain accusations against four named officers and also the
respondents lessees. After conducting the investigation the
charge sheet was filed by the police against seven persons
including the aforesaid three lessee-respondents for several
offences and also the four officers for offences including
conspiracy in permitting lessee-respondents to remove the
timber from the demarcated forest etc, the details of which
we are not mentioning for the reason that we are not
disposing of the matter on merits at this stage. The trial
Judge discharged all the accused. On filing of a revision,
the High Court in the impugned order confirmed the same.
Thus, this appeal by special leave.
Shri Manhas, learned counsel appearing for the State,
contends that the trial court and the High Court were not
right in discharging the accused. It is necessary to mention
that D.F.O., Khojaria and Chowdhary Girdhari Lal have died.
Therefore, the prosecution against them stands abated. The
question is: whether prima facie case has been made out
against the respondents? Shri D.D. Thakur, learned senior
counsel appearing for respondents 5 to 7, the lessees,
contends that they did not commit any offence and they do
not come under the provisions of either the Ordinance 5 of
1986 or the Act which was quashed by the High Court or the
Act No. 7 of 1987. Therefore, no case has been made out
against them. As stated earlier, we decline to consider the
matter on merits for the reason that the High Court should
have considered all the relevant provisions of the Act and
offences and the contentions of the parties taking into
consideration the averments made in the charge-sheet. It is
now settled law that the charge-sheet constitutes prima
facie evidence constituting the offence for proceeding
further in the matter. necessarily, therefore, the Court has
to look into the relevant law and the allegations made in
the charge-sheet and then consider whether any of fence has
been committed to frame charges for trial before discharging
the accused. Since the High court has not done that, we
think it proper that the High court should reconsider the
matter and dispose it of in accordance with law. All the
contentions raised by the learned counsel on either side are
left open. it is open to the counsel to argue the matter in
the High Court.
The appeal is accordingly allowed and the case is
remitted to the High Court for disposal. Since it is an old
case, we would request the High Court to dispose it of as
expeditiously as possible within three months from the
receipt of this Order.