IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Cr. M.P. No. 735 of 2006
...
1. Beni Madho Singh
2. Krishna Prasad
3. Nageshwar Pandey
4. Rajendra Sao
5. Ramdhani Kumhar
6. Panchu Yadav
7. Musafir Singh ...
Petitioners
-V e r s u s-
The State of Jharkhand & another ... Opposite Parties
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioners : - Mr. P.C.Tripathy, Sr. Advocate
For the State : - A.P.P.
...
8/29.06.2010
Despite valid service of notice upon the Opposite Party No. 2, he has
failed to appear either in person or through lawyer. The counsel for the State
however is present.
2. Heard counsel for the petitioners and counsel for the State.
3. The petitioners, who are the forest officials have filed the instant
application praying for quashing the order of cognizance as also the entire
criminal prosecution which has been initiated against them following the
impugned order of cognizance, for the offence under Sections 384, 420, 424,
426, 427, 120-B and 149 of the Indian Penal Code.
4. The brief facts of the case are as follows :-
The Opposite Party No. 2 filed a complaint petition before the court
below on 02.07.2005 against the present petitioners on the allegations that the
accused persons, being the forest officials, had illegally restrained the Tractor
belonging to the complainant and the witnesses while the Khair wood
obtained from the trees which were standing within the personal lands of the
complainant and the witnesses, was being transported.
Allegations of illegal detention of the vehicle of the complainant and
the witnesses and of extortion were made against the accused persons by the
complainant.
On the basis of the averments contained in the complaint petition as
also the statements of the complainant and the witnesses recorded on solemn
affirmation, the learned Magistrate took cognizance for the aforementioned
offence against the accused persons namely the present petitioners by his
order dated 03.12.2005.
5. Assailing the order of cognizance and the very initiation and
continuation of the criminal prosecution against the petitioners, learned
counsel for the petitioners raises the following grounds :-
(i) That false allegations have been made in the complaint petition
deliberately with an intent to harass the petitioners by way of
malicious prosecution and by way of revengeful motive and by
suppressing material facts before the court below and thereby
abusing the process of court.
Learned counsel for the petitioners explains that the Tractor carrying
Khair wood was intercepted within the protected forest area and it was found
by the forest officials that the Khair wood was illegally transported on the
vehicle by the complainant and the said witnesses without any prior
permission. Such acts being acts of offence punishable under the provisions of
the Indian Forest Act, the Tractor along with the Khair wood was detained and
a case was registered against the owner of the Tractor and others, including the
complainant of the present case on 16.06.2005.
Subsequently, on 19.07.2005, the accused persons of the
aforementioned case, namely the present complainant and his witnesses had
pleaded guilty to the charges and had deposited the amount of fine as imposed
against them on 19.07.2005 itself. Yet, by suppressing these facts, the
Opposite Party No. 2 had filed the complaint petition before the court below
on 02.07.2005 not only suppressing the material facts in the complaint petition
but also suppressing the same in his statement recorded on solemn affirmation
in course of enquiry conducted by the learned Magistrate.
Learned counsel argues that the aforesaid facts would amply
demonstrate that the criminal prosecution initiated against the present
petitioners, is totally malicious and intended to harass the petitioners. It is
further argued that the petitioners happen to be public servants and the alleged
acts of offence as levelled against them by the complainant in the complaint
petition, do apparently suggest acts performed in discharge of their official
duties and for prosecuting the petitioners for such alleged offences, prior
sanction under the provisions of Section 197 Cr.P.C. ought to have been taken.
The order of cognizance without obtaining the sanction order under the
provisions of Section 197 Cr.P.C., for prosecuting the petitioners, is therefore
bad in law.
6. Learned counsel for the State submits, on the other hand, that from
verification of the records it does transpire that prior to the registration of the
complaint case filed by the Opposite Party No. 2, a case was already
registered against the complainant and other accused persons on 16.06.2005
for the offences under the provisions of the Indian Forest Act and the accused
persons of the said case, on their pleading guilty, were fined and they had
deposited the amount of fine on 19.07.2005 itself.
7. Upon hearing the learned counsel for the petitioners and learned
counsel for the State and on going through the materials available on record
including the impugned order of cognizance, I find that the complainant has
suppressed the fact that a case for the offence under the Indian Forest Act was
registered against him and the witnesses, by the forest officials on 16.06.2005
when a Tractor carrying Khair wood was intercepted and detained in the forest
area. The complainant and his witnesses appear also to have suppressed the
fact that in the case instituted against them for the offences under the Indian
Forest Act, they had pleaded guilty and consequently they were directed to
pay fine and they had deposited the amount of fine whereafter the case
registered against them was dropped. Furthermore, it appears that the act of
detaining the Tractor and seizing the vehicle along with Khair wood loaded on
it, was done in discharge of the official duties of the petitioners all of whom
happen to be the forest officials and they being public servant, are therefore
entitled to the protection as envisaged under the provisions of Section 197 of
the Cr.P.C.
8. From the perusal of the impugned order of cognizance, I find that the
court below has passed the order of cognizance on the basis of the allegations
contained in the complaint petition and the statement of the complainant and
the witnesses. However, the fact remains that the order of cognizance has been
obtained by the complainant against the petitioners by suppressing the
material facts before the court below. The learned court below also appears to
have ignored the fact that the allegations against the petitioners have been
made in respect of certain acts which admittedly was purportedly committed
in discharge of their official duties and the petitioners being public servants,
the sanction as per the provisions of Section 197 Cr.P.C. for their prosecution,
was necessary and yet, the same was not obtained.
9. I am satisfied from the facts of the case that the criminal prosecution
initiated against the petitioners is certainly malicious and abuse of the process
of the court and cannot be allowed to continue against the petitioners.
10. There being merit in this application, the same is allowed. The
impugned order of cognizance and the entire criminal prosecution initiated
and pending against the petitioners before the court below following the
impugned order of cognizance is hereby quashed.
(D.G.R. Patnaik, J.)
Birendra/