By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (the Code) the applicant has challenged the complaint filed by the respondent-State, Through Range Forest Officer, RFW Range (Jamnagar), Bhatiya, Tal. Kalyanpur, which is registered as Criminal Case No.511 of 2012, pending in the Court of Judicial Magistrate, First Class, Kalyanpur, Dist. Jamnagar and the summoning order dated 08.08.2012 passed therein.
It may be noted that the said complaint is filed on 26.07.2012 for the alleged offence under Section 63(c) of the Indian Forest Act, 1972 (the Forest Act).
Heard Mr.A.S.Vakil, learned advocate for the applicant and Mr.Alkesh N. Shah, learned Assistant Public Prosecutor for the respondent-State, original complainant.
The main argument raised by the learned advocate for the applicant is to the effect that Section 63(c) of the Forest Act is punishable with imprisonment for a term which may extend to two years or with fine or with both and, therefore, as per the provisions of Section 468 of the Code, when the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years, the period of limitation would be three years.
In order to examine this issue it would be necessary to note the contents of the impugned complaint. It may be noted that Paragraph No.2 thereof clearly spells out that the alleged incident has taken place somewhere in 2000-01, for which the allegation for the alleged offence under Section 63(c) of the Forest Act is based. That the complaint also recites action taken by the State Government under other relevant provisions of the Forest Act, which was the subject matter of the writ petition as well as Letters Patent Appeal before this Court. That the impugned complaint therefore clearly indicates that the incident, for which the applicant is sought to be prosecuted, relates back to 2000-01, whereas the present complaint is admittedly filed on 26.07.2012. Learned advocate for the applicant has vehemently submitted that in view of the provisions of Section 63(c) of the Forest Act read with Section 468 of the Code, no complaint can be entertained and no cognizance could have been taken, of an offence having been committed in 2000-01, after a period of three years. Relying upon the decisions of the Apex Court in the cases of (I) State of Punjab Vs. Sarwan Singh, AIR 1981 SC 1054; (ii) State of Himachal Pradesh Vs. Tara Dutt & Anr., AIR 2000 SC 297; (iii) Ramesh Chandra Sinha & Ors. Vs. State of Bihar & Ors., AIR 2003 SC 3635; AND
(iv) M/s. Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, it is submitted that the Magistrate has committed an apparent error by taking cognizance and passing the summoning order dated 08.08.2012 in Criminal Case No.511 of 2012.
Per contra, Mr.Alkesh N.
Shah, learned Assistant Public Prosecutor for the respondent-State, original complainant, has taken this Court to the order that was passed by the appellate authority under the relevant provisions of the Forest Act, more particularly order dated 30.06.2012 wherein it is, inter alia, mentioned that the proceedings of compounding of offences may be undertaken by the department. It is submitted that the order impugned is legal and proper and as the proceedings were pending before the appellate authority as well as this Court, the complaint in question is lodged on 26.07.2012, which is within the prescribed limit.
No other or further submissions are made by the learned counsel for the parties.
In order to appreciate the controversy involved in the present application and before reverting to the contentions raised by the parties, it would be necessary to note down the following chronology of events, which can be culled out from the record of the matter.
That the State of Gujarat vide order dated 15.01.1982 sanctioned mining lease for mining bauxite mineral in favour of the applicant for the land situated at old Revenue Survey No.330/part, admeasuring 12.14.05 hectares (approx.), at Village Mevasa, Tal. Kalyanpur, Dist. Jamnagar (for short 'the leased land') and pursuant to order dated 15.01.1982 a lease deed dated 14.02.1983 was executed between the applicant and the State of Gujarat on certain terms and conditions mentioned therein. That the boundaries of the area were described as per the map annexed to the said lease deed dated 14.02.1983. That part of the leased lands were bordering the lands of village Virpur Lusari (Rato Kundo), Tal. Kalyanpur in respect of which, notification dated 30.08.1977 was issued under Section 4 of the Indian Forest Act, 1927. That thereafter pursuant to the aforesaid order dated 15.01.1982, a map was prepared by the District Inspector of Land Record (DILR), which came to be approved by the Assistant Director, Geology and Mining Department, Jamnagar in respect of the leased lands.
That on or about 09.03.1983, a rojkam was carried out by Mamlatdar, Kalyanpur and also by Talati-cum-Mantri, Village Mevasa and thereafter possession of the leased lands (after identifying the same, as per the map prepared by the DILR and approved by the Geology and Mining Department) was handed over to the applicant. That boundary pillars indicating the boundaries of the leased lands were erected as per the instructions of the DILR and in accordance with the aforesaid map. That neither the said rojkam nor the map referred to existence of any boundary mark of any forest land, more particularly of the immediately adjoining forest land of Village Virpur Lusari, Tal. Kalyanpur. That the applicant has since then carrying on mining activities on the leased lands of which he was put into possession by the competent authority i.e. the Revenue Officer (since around March 1983). That the applicant has always been in possession of 12.14.05 Hectares of land. That the North-West boundary of the leased lands borders the lands of Village Virpur (Rato Kundo). That though the applicant was put in possession of the leased lands admeasuring 12.14.05 Hectares, out of the said 12.04.05 Hectares, 2 Hectares 18 Ares and 14 Sq.mtrs. of land was actually part of Revenue Survey No.117 (part) of Village Virpur in respect of which notification dated 30.08.1977 under Section 4 of the Act was issued.
That after more than four years from the date of execution of the lease deed dated 14.02.1983, and after being put in possession of the applicant as aforesaid, the State Government in exercise of powers under Section 20 of the Forest Act issued notification dated 18.04.1987 and thereby declared the land being Revenue Survey No.117 (part) of Village Virpur Lusari, Tal. Kalyanpur, Dist. Jamnagar as reserved forest with effect from the date of issuance of the said notification. That so far as the said land is concerned, the Southern boundary thereof is bordering the boundary of Village Mevasa i.e. the boundary of the leased lands of the applicant. Although the boundaries of the aforesaid forest land/reserved forest were demarcated in the notification dated 18.04.1987, the same were not physically demarcated (at site) by the Forest Department even at the time of issuance of the aforesaid notification, in as much as the boundary pillars indicating the boundary of the forest area were not erected by the Forest Department.
That around 16.01.1998, the applicant applied to the appropriate authority for approval of the mining plan for bauxite mineral for operations on the leased lands and pursuant thereto the Ministry of Mines, Government of India, vide letter dated 09.06.1998 approved the same. That on or about 24.03.2001 i.e. after a period of almost 19 years since the applicant commenced the mining operations on the leased lands, and after almost 14 years of passing the aforesaid notification dated 18.04.1987, the Forest Department, for the first time, communicated to the applicant that the mining operations were being undertaken on the forest land (i.e. on the land being Revenue Survey No.117 (part) of Village Virpur Lusari, Tal. Kalyanpur) and thereby called upon the applicant to discontinue the said activities. That in reply thereto, the applicant by letter dated 27.03.2001 forwarded to the Forest Department the lease documents, including the map approved by the District Geologist and stated that the applicant has been carrying out mining operations within the area mentioned in the leased lands, physically demarcated by the DILR and the applicant was put into possession for the same.
That the Forest Department also submitted a report dated 29.03.2001 to Deputy Conservator of Forest, Jamnagar, who, by his letter dated 30.03.2001, responded to the applicant's letter dated 27.03.2001. That the complainant-RFO claims to have submitted a report/letter dated 04.04.2001 to Deputy Conservator of Forest, Jamnagar, who again addressed a letter dated 11.04.2001 to the applicant.
That thereafter the applicant made an application dated 31.01.2002 for renewal of the lease deed dated 14.02.83 for a further period of 20 years, which is pending.
That thereafter by letter dated 21.08.2002 the complainant-RFO called upon the applicant to produce all the documents pertaining to the lease, which came to be produced on 05.09.2002 by the representative of the applicant and it was made known to the complainant that the applicant has been carrying on mining operations within the boundaries as per the aforesaid map approved by the Geologist and physically demarcated by the DILR in 1982-83 and the applicant was put in possession for the said land. That a purported rojkam and joint measurement was carried out on 13.03.2003, which appears that a portion of the leased land, physical possession of which was given to the petitioner was falling within survey No.117/part of Village Virpur-Lusari (i.e. the petitioner was erroneously put in possession of part of survey No.117/part of Village Virpur-Lusari). That at the time of preparation of the said rojkam/ measurement sheet, no boundary pillars indicating the boundaries of the forest land were found erected by the Forest Department. However, on the other hand, the boundary pillars duly erected at the commencement of the lease deed (i.e. 1982-1983), as per the physical demarcation by the DILR were found to be in place. That thereafter various correspondences were exchanged by Deputy Conservator of Forest, Jamnagar.
That the Forest Department, through the Round Forester, Village Bhatiya, issued a notice/letter dated 26/27.04.2003 to the applicant and alleged therein that the applicant has been carrying on mining operations on land being Survey No.117 (part) of Village Virpur-Lusari, the applicant has been granted lease in respect of land Survey No.437/part (old Revenue Survey No.330), of Village Mevasa and also referred to therein that the joint measurement taken on 13.03.2003 and alleged that the applicant had caused damage to the government property and committed breach of Section 33(1)(b) of the Act and thereby called upon the applicant to deposit by way of advance, amount equivalent to the damage caused to the property/forest land and also called upon the applicant to submit necessary evidence. That in response thereto the applicant, by letter dated 05.05.2003, stated that the applicant's mining lease has been granted by the State Government and that the applicant has done the mining operations as per the lease deed and that the applicant has done the mining operations within the boundaries specified by the DILR and also requested that the measurement may be taken by the DILR office.
That by letter dated 26.04.2003 the complainant reported the factual position to the Deputy Conservator of Forest, Jamnagar and stated therein that as per the map of the Forest Department, the Virpur (Rato Kundo) area falls under the boundaries of the Forest Department and that the Mining Department has executed the mining lease erroneously on this area and it is stated that Mining Department should be asked to terminate the lease deed.
That thereafter due to harassment of the officials of the Forest Department threatening to initiate action against the applicant for alleged mining activities in the forest area and stopping the trucks of the applicant carrying bauxite, the applicant filed a written complaint on 10.06.2003 to Kalyanpur Police Station narrating the harassment caused by the officials of the Forest Department.
That again a rojkam/ measurement was prepared on 14.07.2003 in absence of the applicant. That the applicant thereafter made an application dated 02.04.2004 to DILR, Jamnagar for measurement of the leased land. Also, an application dated 05.04.2004 was made by the applicant to the Chief Forest Conservator, Gandhinagar. That the Deputy Forest Officer, Jamnagar by letter dated 17.04.2004 informed the applicant that on scrutinizing the map of the land bearing old survey No.330/part, on which the mining lease was granted by the State Government, the same includes the area of reserved forest known as Rato kundo of Village Vipur of Survey No.117/part. That the applicant was further informed that if any measurement was carried out by DILR, Jamnagar, pursuant to the applicant's application dated 02.04.2004 the Forest Department may be informed in advance in order to depute a responsible officer.
That pursuant to the application of the applicant dated 02.04.2004, a survey was carried out and ultimately a new map dated 25.05.2004 was prepared by the office of the DILR, which made it clear that possession of of the leased land is converted under the Forest Land vide the aforesaid notification dated 18.04.1987. That on being made aware of the aforesaid fact, the applicant handed over possession of the said reserved forest land forming part of Survey No.117/part of Village Virpur-Lusari to the Forest Department on or about 25.05.2004 and thereafter the Forest Department, for the first time put up kachcha pillar, demarcating the boundary lines of the forest land.
That the applicant has never carried out any mining activities on the said reserved forest land, which fact is also confirmed in letter dated 14.08.2006 of the complainant and in notice / communication dated 23.07.2008 of the complainant.
That in lieu of the aforesaid forest land surrendered by the applicant another land was allotted by the DILR.
That on or about 17.05.2006, information was sought for by one Shri A.D. Joshi under the Right to Information Act, 2005 regarding the alleged illegal mining carried out by the applicant on the reserved forest land. That in response thereto, the complainant addressed a communication dated dated 14.08.2006 to the Office of the Deputy Conservator of Forest and stated that the alleged illegal mining carried out by the applicant was in the area adjoining the approved mining lease, where boundary pillars of the Forest Department were not affixed, that possession of the reserved forest land has been taken and that the applicant has thereafter not carried out any mining activities on the said forest land.
That after more than 23 years of the mining lease deed dated 14.02.1983 was executed, after more than 19 years of issuance of notification dated 18.04.1987 and after more than 5 years of conveying (in March 2001) the applicant by the Forest Department that the applicant is carrying out mining operations on the forest land, an offence under the Forest Act came to be registered in the register maintained by the complainant-RFO, being Forest Case No.3/2006-07 dated 08.09.2006 for the purpose of Section 72 of the Forest Act. The same refers to Sections 26(1)(g) and 63(c) of the Forest Act.
That thereafter the applicant received a notice dated 16.11.2006 from the office of the complainant stating that the applicant had carried out mining activities in the forest area of Village Virpur, reference was made to the joint measurements carried out on 14.07.2003 and 25.05.2004 and it was thereby alleged that the applicant had illegally entered upon the reserved forest land and illegally done mining activities and thereby caused damage to the reserved forest land and accordingly it was stated that compensation for damage was liable to be paid by the applicant. Also, it was stated that a case under Section 26(1)(g) of the Forest Act i.e. Forest Case No.3/2006-07 is registered and the applicant was called upon to give his statement on 27.11.2006.
That thereafter the Geologist, Jamnagar issued show cause notice dated 04.04.2007 to the applicant wherein a reference was made to communication dated 17.01.2007 of the Forest Department, Jamnagar on the basis of which it was stated that the applicant had done illegal mining of bauxite and it was alleged that there has been theft of Rs.3,52,93,170/-. That the applicant was called upon to give his clarification within three days. A reply was given by the applicant stating therein the correct facts that the applicant has carried out mining activities only on the land which was allotted/handed over to him by the revenue authority by way of a lease in the year 1983, after preparation of map and demarcation of boundaries by the DILR.
That thereafter the complainant issued a notice/communication dated 23.07.2008 to the applicant asking to pay the aforesaid amount of Rs.3,52,93,170/- within 10 days and also called upon the applicant to show cause why further steps / proceedings under the Forest Act should not be taken within 10 days. That in response thereto, a reply was given by the applicant dated 30.07.2008 and stated therein that it was on account of the Forest Department not putting the boundary pillars that the aforesaid situation had arisen, which was also replied to by the complainant vide letter dated 21.08.2008.
That the complainant passed order dated 23.09.2008 in the aforesaid Forest Case No.3/2006-07, (which was in fact not supplied to the applicant), whereby it is observed that sum of Rs.3,52,93,170/- should be recovered from the applicant by way of compensation within three days and the applicant should be proceeded against legally. That the said act is done in exercise of powers under Section 72 of the Act. That the complainant also addressed a communication dated 23.09.2008 to the Deputy Conservator of Forest, Jamnagar wherein some of the aforesaid facts are stated and the complainant has also stated therein that the applicant has committed offence under Sections 26(1)(g) and 63(c) of the Forest Act.
That consequent upon the aforesaid order dated 23.09.2008, the complainant issued a demand notice dated 17.11.2008 (wherein there is no mention of the aforesaid order) and stated therein that in view of final outcome of Bhatiya Round Criminal Case No.3/2006-07, the applicant to make payment of the aforesaid sum of Rs.3,52,93,170/- within seven days, failing which further action will be taken. That the complainant again sent reminder letter dated 06.12.2008 whereby called upon the applicant to deposit the said amount.
That against the aforesaid demand notice dated 17.11.2008, the applicant moved a writ petition before this Court being Special Civil Application No.883 of 2009, which came to be disposed of to the effect that this Court cannot decide the question of area. Against which Letters Patent Appeal No.1137 of 2009 along with Civil Application No.9988 of 2009 were moved by the applicant before Division Bench of this Court, which came to be dismissed vide order dated 29.10.2010.
That pending the aforesaid Letters Patent Appeal the applicant addressed a letter dated 29.04.2010 to the Geologist requesting to provide all information on the basis of which the aforesaid amount of Rs.3,52,93,170/- was calculated.
That thereafter the applicant filed a review application seeking review and recall of the aforesaid judgment and order dated dated 29.10.2010 passed in Letters Patent Appeal No.1737 of 2009. That pending the aforesaid review application, the complainant issued summons dated 06.12.2010 purporting to be under Section 72(1)(b) of the Forest Act read with Section 61 of the Code of Criminal Procedure, 1973 directing the applicant to remain present and submit relevant documents.
That thereafter the applicant deposited the aforesaid sum of Rs.3,52,93,170/- (which was demanded under notice dated 17.11.2008), under protest and without prejudice to all rights of the applicant.
That after having paid the aforesaid amount on 06.01.2011, the applicant preferred an application under Section 68 of the Forest Act before the complainant-RFO for compounding, which application is moved without prejudice to the right of the applicant to challenge the legality and validity of the impugned notice dated 17.11.2008, which came to be rejected vide order dated 06.01.2011.
That this Court by judgment and order dated 13.01.2011 recalled the earlier judgment and order dated 29.10.2010 passed in the aforesaid Letters Patent Appeal whereby the applicant was allowed to prefer appeal against the demand notice in question. It was further observed therein that S.O. to far as the criminal proceeding under the Forest Act is concerned, as earlier no finding having been given by this Court, the Court is not inclined to give any finding now and it will be open to the applicant to bring to the notice of the authority that the applicant intends to prefer an appeal and has already deposited the amount. That thereafter the applicant filed appeal on 07.02.2011 against the aforesaid notice dated 17.11.2008 before the Chief Conservator of Forest, Junagadh, which came to be dismissed vide order dated 30.06.2012. Various developments took place pending the said appeal.
That thereafter the applicant received communication dated 15.07.2012 from Deputy Conservator of Forest, Jamnagar purporting to amend the order dated 23.09.2008 passed in Forest Case No.3/2006-07 wherein it was observed to proceed against the applicant under Section 63(c) of the Forest Act before the court and further observing / directing recovery of interest (in terms of the appellate order dated 30.06.2012).
That thereafter the complainant-RFO filed Criminal Case No.511 of 2012 before Court of Judicial Magistrate, First Class, Kalyanpur, Dist. Jamnagar against the applicant for the offence under Section 63(c) of the Forest Act wherein summoning order to the applicant dated 08.08.2012 is passed. Hence, the present petition.
Relevant Section 63 of the Indian Forest Act, 1927, reads as under:
63. Penalty for counterfeiting or defacing marks on trees and timber and for altering boundary marks. Whoever, with intent to cause damage or injury to the public or to any person, or to cause wrongful gain as defined in the Indian Penal Code
(a) knowingly counterfeits upon any timber or standing tree a mark used by Forest-officers to indicate that such timber or three is the property of the Government or of some person, or that it may lawfully be cut or removed by some person; or
(b) alters, defaces or obliterates any such mark placed on a tree or on timber by or under the authority of a Forest-Officer, or
(c) alters, moves, destroys or defaces any boundary-mark of any forest or waste-land to which the provisions of this Act are applied, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
Section 468(2)(c) of the Code, which is relevant for the present is reproduced as under:
468(2) the period of limitation shall be:
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
On comparison of the chronology of events as narrated hereinabove, it is an admitted position that the factum of the complaint was known to the respondent way back in the year 2000-01. Learned Assistant Public Prosecutor for the respondent-State, original complainant, has not been able to show that there is any stay granted by any competent court, not to file a complaint as envisaged under Section 63(c) of the Forest Act.
The Apex Court in the case of M/s. Zandu Pharmaceutical Works Ltd. & Ors. (supra), while considering the similar fact situation has observed thus at Paragraph Nos.14-15:
14. Section 468 of the Code deals with delay in taking cognizance after lapse of the period of limitation. It reads as follows:
"468.
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 an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
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;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
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."
15. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468 (2) (c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5-12-2001 was in response to the letter of complainant dated 24-11-2001. The factual position clearly shows that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singh's case (supra), thereby rendering the judgment indefensible. The judgment of the High Court is set aside, the proceedings initiated by the complaint lodged are quashed. The appeal is allowed.
On bare reading of the provisions of Section 468 of the Code therefore in view of the fact that the offence under Section 63(c) of the Forest Act is punishable with imprisonment for a term which may extend to two years, the limitation as prescribed under Section 468 of the Code would be three years. The facts of this matter clearly reveal that there was no other eventuality which would in any manner lead to a situation when a period, which is consumed in other litigation, can be taken into consideration as provided under the relevant provisions of the Code of Criminal Procedure, 1973, to save the limitation as prescribed under Section 468 of the Code.
In view of what has been stated hereinabove, the impugned complaint would amount to abuse of process of law and hence, this is a fit case to exercise inherent powers under Section 482 of the Code and quash the impugned complaint as well as all other proceedings arising out of the said complaint.
For the reasons stated hereinabove, the present application is allowed. Criminal Case No.511 of 2012 pending in the Court of Judicial Magistrate, First Class, Kalyanpur, Dist. Jamnagar and the summoning order dated 08.08.2012 passed therein are hereby quashed and set aside.
Rule is made absolute to the aforesaid extent.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 25 of 25