Prasanna Kumar Mahapatra @ … vs State Of Jharkhand & Ors. on 15 April, 2009

            In the High Court of Jharkhand at Ranchi

                  W.P.(Cr.) No.286 of 2008

            Prasanna Kumar Mahapatra @ P.K.Mahapatra...Petitioner

                  VERSUS

            State of Jharkhand and others........................ Respondents

            CORAM: HON'BLE MR. JUSTICE R.R.PRASAD

            For the Petitioner  :M/s. Ananda Sen
            For the Respondents: Mr. R.R.Mishra, G.P.II


5.   15 .4.09            This writ application has been filed for quashing the

            entire criminal prosecution including the order dated 14.7.2008

            passed in Complaint case bearing C/1 case no.11 of 2006 whereby

            cognizance of the offence under section 33 of the Indian Forest Act

            and also under section 2 of the Forest Conservation Act has been

            taken against the petitioner.

                  The case of the prosecution is that one Rajendra Sharma, a

            Forest Guard while was patrolling along with another Forest Guard

            Anthrons Soreng in Gurdari Forest, he saw accused Md. Kasim

            Ansari along with other labourers extracting Bauxite by digging

            earth of the forest area but they on being chased, succeeded in

            taking to their heels. When they returned at the site, they found 5

            tonnes of Bauxite lying there and it was suspected that at the

            instance of some persons of M/s Hindalco Industries Limited, Md.

            Kasim Ansari has committed that offence and, accordingly, offence

            report dated 21.6.2006 was sent before the Chief Judicial

            Magistrate, Gumla . On submission of the said offence report

            before the Divisional Forest Officer, (West Lohardaga), Ranchi

            Forest Division, the matter was enquired into by Forester, Netarhat

            and in course of enquiry from the villagers, it came to now that

            said Md. Kasim Ansari at the instance of the petitioner(Manager

            Gurdari Mines) gets Bauxite extracted from the forest area and
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accordingly, prosecution report was submitted on 14.7.2008 and on

that day cognizance of the offence as stated above was taken

against the petitioner.

       Being aggrieved with that order, this writ application has

been filed for quashing the entire criminal proceeding including the

order taking cognizance.

       Learned counsel appearing for the petitioner submits that as

per the offence report dated 21.6.2006 one Md. Kasim Ansari was

seen taking out Bauxite along with other labourers from the forest

area and without there being any reason, it was suspected that he

committed that mischief at the instance of some persons of M/s.

Hindulco Industries Limited and when the matter was enquired into

by Forester, he from the villagers came to know that it was the

petitioner at whose instance said Md. Kasim Ansari used to get

Bauxite extracted from the forest area but the name of the villagers

had not been mentioned, still cognizance of the offence was taken

against the petitioner which is quite bad as prosecution report as

well as offence report is quite vague, so far indulgence of the

petitioner in the alleged offence is concerned.          On the said

prosecution report, the prosecution cannot secure conviction even

if the entire allegation made in the prosecution report remains

uncontroverted and hence, the entire criminal prosecution is fit to

be set aside.

       A counter affidavit has been filed wherein it has been stated

that Forester had submitted prosecution report when he, in course

of investigation, did find the involvement of the petitioner in illegal

mining.   Under this situation, it was submitted on behalf of the

State that when the prosecution report does disclose about the

commission of the cognizable offence, it cannot be quashed on its

threshold and hence, the impugned order needs no interference.
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      Having heard learned counsel appearing for the parties and

on perusal of the record it does appear that the prosecution report

seems to have been submitted after holding enquiry on the

allegation made in the offence report but surprisingly, name of the

villagers, who allegedly disclosed about the involvement of the

petitioner, has not been mentioned either in the body of the

prosecution report or in the witness column, rather in the witness

column name of only three persons,          the informant, a Forest

Guard, another Forest Guard, who had accompanied the informant

to forest at the time of alleged offence and the Forester are there,

who seems to have derived their knowledge about the involvement

of the petitioner in the alleged offence by the villagers whose

names have not been disclosed.

      In that view of the matter, whatever material has been

collected by the prosecution to prosecute the petitioner that does

not appear to be legal. Consequently, the entire prosecution case is

liable to be quashed in view of the ratio laid down by the Hon'ble

Supreme Court in a case of R.P.Kapur vs. State of Punjab (AIR

1960 SC 866) holding therein that High Court in exercise of its

inherent power can quash the proceedings in cases of following

categories:

              (i)     where it manifestly appears that there is a
                      legal bar against the institution or continuance
                      e.g. want of sanction;
              (ii)    where the allegations in the first information
                      report or complaint taken at its face value and
                      accepted in their entirely do not constitute the
                      offence alleged;
              (iii)   where the allegations constitute an offence,
                      but there is no legal evidence adduced or the
                      evidence adduced clearly or manifestly fails to
                      prove the charge.

      For the reason discussed above, this case certainly falls

within the third category as the materials upon which the

prosecution is embarking to prosecute the petitioner is not legal.
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      Under this situation, it would be highly improper to allow the

      petitioner to suffer rigor of the trial as there would be virtually no

      chances of securing conviction of the petitioner even if the entire

      material collected remains uncontroverted.

             Accordingly, the entire prosecution of Complaint case

      bearing C/1 case no.11 of 2006 including the order dated

      14.7.2006

passed by the Sub-divisional Judicial Magistrate, Gumla

is hereby quashed so far petitioner is concerned.

In the result, this application is allowed.

(R.R.Prasad, J.)
ND/