Partly allowed

H N Premkumar v. the State of Karnataka

Karnataka HC9 Feb 2024CRL.P/10185/2017

Case brief

AI extract

What is this about?

This criminal petition challenged the quashing of a charge sheet under the Karnataka Forest Act and MMDR Act. The Court held that proceedings for forest offences were sustainable given proper compliance with the Karnataka Forest Manual and distinct time periods, but quashed proceedings under the MMDR Act due to lack of a statutory written complaint.

What did the court decide?

The petition is allowed in part; proceedings under the MMDR Act are quashed; proceedings under the Karnataka Forest Act are dismissed.

H N Premkumar Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF FEBRUARY, 2024 BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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CRIMINAL PETITION NO. 10185 OF 2017

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BETWEEN:

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H N PREMKUMAR S/O LATE NANJUNDA SWAMY AGED ABOUT 74 YEARS, OCC: BUSINESS R/O NO. 35, 3^RD CROSS, 3^RD MAIN, RMV 2^ND STAGE BEL ROAD, HIGH COLONY, BENGALURU-560 094.

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...PETITIONER

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(BY SRI.RAJATH, ADVOCATE & SMT.KEERTHANA NAGARAJ, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY THE RANGE FOREST OFFICER, HOSAPTE REGIONAL ZONE, HOSAPETE-583201 REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001.

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…RESPONDENT

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(BY SRI.JAGADISH, ADDL.SPP A/W SRI.VENKATA SATYANARAYANA, HCGP FOR R/STATE)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE CHARGE SHEET IN C.C.NO.946/2017 NOW PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HOSAPETE FOR THE OFFENCES P/U/S 24 (a) (d) (f) (g) (gg) (h), 73(d), 80, 82, 82(B), 109 OF KARNATAKA FOREST ACT 1963 AND UNDER RULE 144,165 OF KARNATAKA FOREST RULE 1969 AND UNDER SEC.4(1), 4(1A), 21 OF MINES AND MINERALS REGULATION DEVELOPMENT ACT 1957.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.01.2024, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed seeking quashing of charge sheet in C.C.No.946/2017 now pending on the file of Principal Civil Judge and JMFC Court, Hosapete, for offences punishable under Sections 24(a), (d), (f), (g), (gg), (h), 73(d), 80, 82, 82(B) and 109 of Karnataka Forest Act, 1963 (for short “Act, 1963”) and under Rule 144, 165 of Karnataka Forest Rule, 1969 (for short “Rules, 1969”) and under Section 4(1), 4(1A) and 21 of The Mines and

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Minerals(Development and Regulation) Act, 1957 (for short “MMDR Act”).

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The case of the prosecution is that on 19.11.2012 the Assistant Conservator of Forest, Hosapete Zonal, registered a case in FOC.No.12/201213 against the petitioner for offences punishable under the aforementioned Sections and Rules. Pursuant to registration of crime, the concerned Officer has laid a charge sheet. The Magistrate has taken cognizance pursuant to laying of charge sheet.

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Learned counsel appearing for petitioner reiterating the grounds urged in the petition would vehemently argue and contend that the second complaint registered in FOC.No.12/2012-13 is hit by principle of double jeopardy. He would contend that the petitioner who is categorized as a B category lease holder has pleaded guilty in FOC.No.11/2009-10 and in terms of Apex Court direction, he has paid fine of

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Rs.2,000/each for offences punishable under Sections 24(a), (g), (gg) of Act, 1963 and Rs.10,000/for offences punishable under Section 73(d) of Act, 1963 and compensation of Rs.3,60,000/-. The second limb of argument is that in absence of sanction, respondent has undertaken spot inspection and a spot mahazar is prepared, pursuant to which crime in FOC No.12/2012-13 is registered against the petitioner. Thereafter, requisition is filed by the Range Forest Officer seeking permission to investigate the case on 13.8.2013, the learned Magistrate has granted permission on 20.8.2013. He would further contend that charge sheet is laid on 13.7.2017 and the learned Magistrate has taken cognizance on 27.9.2017.

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Learned counsel for the petitioner would further bring to the notice of this Court that the respondent-State registered a FIR for offences punishable under Sections 24(a), (d), (f), (g), (gg),

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(h), 73(d), 81, 82, 82(B) of the Act, 1963. Referring to these offences, he would point out that the offence being non-cognizable, the respondent-State could not have registered the crime. He would further point out that subsequently on 13.8.2013, a PCR is filed and investigation is undertaken for offences punishable under MMDR Act. Therefore, he would contend that the procedure is illegal and barred by law. Reliance is placed on judgment rendered by the Apex Court in the case of Lalita Kumari .vs. Govt. of U.P.¹ He would further contend that charge sheet is filed without registration of FIR and therefore, contends that the entire proceedings stand vitiated. He would also point out that there is no sanction for offence punishable under the MMDR Act. Referring to Section 22 of MMDR Act, he would point out that only an authorized officer under the Act can lodge a complaint before the Magistrate.

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1 AIR 2012 SC 1515

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Countering the arguments of respondent-

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State, he would point out that the provisions of Criminal Procedure Code are applicable to the present case on hand since the respondent-State has filed PCR under Section 156(3) of Cr.P.C. Referring to the principles laid down in Lalita Kumari’s case, he would contend that the Investigating Officer has undertaken investigation and conducted spot mahazar without securing prior sanction and therefore, the action of the Investigating Officer being violative of the principles laid down in the above cited judgment would vitiate the entire proceedings.

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He would further vehemently argue and contend that the learned Magistrate had not applied his mind while taking cognizance. He would contend that the cognizance taken by the Magistrate for off ences punishable under Forest Act and for offences under the MMDR Act is illegal. To buttress his

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arguments, he has placed reliance on the following judgments:

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“1. State Through Superintendent of Police, CBI/SIT Vs. Nalini & Others – 1999 5 SCC 253.

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2. T.P.Gopalakrishnan Vs. State of Kerala – 2022 SCC Online SC 1768.

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3. Samaj Parivartana Samudaya & Others Vs. State of Karnataka And Others – (2013) 8 SCC 154.

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4. Sri.Vivek Vs. The State of Karnataka – Crl.P.No.6279/2017.

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5. K.Madhusudan Vs. State of Karnataka – Crl.P.No.101295/2019.

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6. Sri.Trivenu Vs. The State by Station House Office – Crl.P.No.5930/2021.

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7. Sri.Srinivas Vs. State of Karnataka – Crl.P No.5289/2022.

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8. M/S Chowgule & Company Private Limited Vs. The State of Karnataka – Crl.P.No.103606/2022.

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9. Sri.E.Hemendra Gouda Vs. State of Karnataka – Crl.P.No.101990/2022.”

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Per contra, the learned Additional SPP Sri. Jagadish, countering the arguments of the learned counsel for the petitioner would point out that the arguments canvassed are misconceived. Referring to the material on record, he would contend that the crime is registered by the competent forest official by having recourse to Rule 65 of the Karnataka Forest Manual. Referring to Chapter 6 of Karnataka Forest Manual (for short “Manual”), he would contend that Rule 65 of the Manual would contemplate registration of FIR, Rule 69 of the Manual confers authority on the forest official to investigate into the matter and under Rules 71 and 75 of the Manual, the concerned Forest Official is bound to submit a report/charge sheet. It is in this background, he would contend that the FIR filed in FOC.No.12/2012-13 is under Rule 65 in Form No.17 and therefore, he would contend that since Rule 65 does not differentiate between cognizable and non-

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cognizable offences as indicated in Section 154 & 155 Cr.P.C and therefore, there is no infraction of procedure. He would contend that Karnataka Forest Act is a special legislation and Sections 4 and 5 of Cr.P.C. enable the Forest Officials to initiate action under Karnataka Forest Manual. Therefore, he would contend that obtaining permission from the Magistrate for registration of FIR is not necessary.

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He would further point out that the contention of the petitioner that the second complaint is on same set of facts and the same amounts to double jeopardy is totally misconceived. He would contend that the first crime was registered based on Lokayuktha report for illegal mining and the investigation relates to the offences committed for the period 1.9.2009 to 7.10.2009, while in the second FIR, the offences relate to the period 19.11.2012 to 18.10.2016. He would further contend that the

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second FIR was registered on 19.11.2012 and is based on the report of the Supreme Court Appointed Committee for illegal mining in subsequent illegal mining activities.

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While countering the petitioner’s contention on Magistrate taking cognizance beyond three years under Section 468 of Cr.P.C., he would contend that the charge sheet was filed only on 13.7.2017 and the Court has taken cognizance on 27.9.2017. To buttress his arguments, he has placed reliance on the judgment rendered by the Apex Court in the case of

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Sarah Mathew .Vs. Institute of Cardio Vascular

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Diseases and others (2014) 2 SCC 62. Referring to Para 51 of the said judgment, he would contend that Apex Court held that for purpose of computing the period of limitation under Section 468 of Cr.P.C, the relevant date is the date of filing of the complaint or date of institution of prosecution and not the date on

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which the Magistrate takes cognizance. Referring to the above said principles, he would point out that the reporting of the offence in the present case on hand was well within limitation.

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Referring to the Karnataka Forest Manual,

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he would point out that the complaint is lodged by the competent Forest Official under Rule 65 of the Manual and investigation is done under Rule 69 of the Manual and charge sheet is submitted under Rules 71 and 75 of the Manual and therefore, the embargo contemplated under Section 155 of Cr.P.C. requiring the Magistrate to accord permission for investigation has no application to the present case. Before concluding, he has brought to the notice of this Court that even otherwise permission was sought for investigation of the crime and charge sheet is laid and in absence of their being any infraction of procedure, the proceedings cannot be quashed.

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Heard the learned counsel for the petitioner

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and the learned Additional SPP.

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The procedure relating to detecting of offences punishable under Karnataka Forest Act and the procedure required to be followed by the Forest Officials:

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It would be useful to refer to Rule 65(1) of Karnataka Forest Manual, which reads as under:

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“65. First Information report:1). The Forest Officer detecting an offence should send forthwith the First Information Report in Form 17 to the Divisional Forest Officer, the Range Forest Officer and to the Magistrate having jurisdiction. The form shall be in quadruplicate, the quadruplicate being sent to the Magistrate having jurisdiction, the triplicate to the Divisional Forest Officer, the duplicate to the Range Forest Officer and the original being retained by the Officer detecting the offence.”

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The petitioner claims that in absence of sanction, respondent has undertaken spot inspection

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and has conducted a spot mahazar pursuant to which a crime is registered in FOC 12/2012-13. Now let me examine the spot mahazar dated 19.11.2012, which is placed on record. The petitioner claims that the respondent has taken up investigation without seeking permission from the jurisdictional Magistrate. The spot mahazar/inspection is pursuant to directions issued by the Supreme Court. Rule 65 of the Manual, which is culled out supra clearly authorizes a forest officer detecting an offence to forthwith send the First Information Report in Form No.17 to the Divisional Forest officer, Range Forest officer and the jurisdictional Magistrate having jurisdiction.

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The First Information report is issued in

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Form No.17 and the same is communicated in compliance of Rule 65 of the Manual. Rule 65 of the Manual clearly does not make any distinction between cognizable and non-cognizable offence. The

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petitioner’s claim that investigation is done without securing sanction from the magistrate is also found to be misconceived. The registration of crime in FOC.12/2012-13 is preceded by spot inspection on the same day. This cannot be termed as an investigation. It was only on spot inspection on 19.11.2012, the Forest officer has detected the offence and therefore, a crime is registered under Rule 65(1) of the Manual and the FIR is communicated by way of Form No.17 to the higher officials as well as to the jurisdictional Magistrate. Perusal of the final report reveals that the same is issued under Rule 71 of the Manual, which is preceded by an investigation under Rule 69 of the Manual. Before commencing with investigation under Rule 69 of the Manual, the concerned official has communicated a letter on 13.08.2013 and the jurisdictional Magistrate has granted permission on 20.8.2013.

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Investigation is done under Rule 69 of the Manual and the final report is submitted to the jurisdictional magistrate in Form No.75 of the Manual. Charge sheet is submitted on 12.4.2017. If these significant details are taken into consideration, this Court would find that the concerned Forest Official has detected the offence and the said crime is reported by invoking Rule 65 of the Karnataka Forest Manual. Though Karnataka Forest Manual does not mandate that official has to seek permission to investigate under Rule 69 of the Manual, the official however has sought permission and permission is granted, which is indicated in the final report. The spot inspection done by the forest official which led to the detecting of an offence on 19.11.2012 cannot be termed as an investigation. The forest official on an visit and spot inspection has detected an offence and has accordingly acted in terms of Rule 65 of the Manual by

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registering a crime. The charge sheet is laid only after securing sanction from the jurisdictional Magistrate which is also forthcoming from the charge sheet.

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Therefore, the contention of the petitioner

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that the forest officials have commenced with investigation and have later secured permission cannot be acceded to. In the light of my findings recorded in the preceding paragraphs, the petitioner’s

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claim that the proceedings have stood vitiated for want of sanction from the jurisdictional Magistrate is misconceived and cannot be entertained.

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My findings on the claim that the registration of second FIR in FOC.No.12/2012-13 amounts to double jeopardy:

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As rightly pointed out by the additional SPP, the first FIR which was registered in FOC.11/2009-10 is in respect of incidents relating to period between

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1.9.2009 to 7.10.2009 while the second crime is registered based on incidents relating to period between 19.11.2012 to 18.10.2016. This fact can be gathered from column (8) of enquiry report. Therefore, the two crimes registered relate to two different incidents and therefore, even if petitioner has pleaded guilty in earlier criminal proceedings, he cannot be permitted to claim that second FIR is based on same set of facts. Therefore, the judgment cited by the learned counsel for the petitioner in the case of

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Samaj Parivartana Samudaya and others .vs. State of Karnataka and others² has no application to the present case on hand.

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My findings on cognizance being barred under Section 468 of Cr.P.C.:

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The said issue is dealt by the Hon’ble Apex Court

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in the case of Sarah Mathew .vs. Institute of

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2 (2013) 8 SCC 154

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Cardio Vascular Diseases and others( supra ) . Para 51 of the said judgment is culled out in the synopsis filed by additional SPP. It would be useful for this Court to cull out Para 51, which reads as under:

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“51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 Cr.PC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 Cr.PC.”

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The Apex Court in the above cited

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judgment has held that for the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant period is the date of filing of complaint or date of institution of prosecution. Therefore, it is immaterial as to when the cognizance was taken by

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the learned Magistrate. Therefore, I am not inclined to accede to the said argument.

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Whether the offences covered under the

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MMDR Act could have been included while laying a charge sheet:

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While registering a crime by the forest official under Rule 65 of the Manual, there is no reference to the offences covered under the MMDR Act. The learned Magistrate has not granted permission to hold investigation for the offences covered under the provisions of MMDR Act. Therefore, the final report/charge sheet laid by the forest official even in respect of the offences covered under the MMDR Act is not sustainable. In absence of written complaint to the learned Magistrate as contemplated under Section 22 of the MMDR Act, the charge sheet is liable to be quashed insofar as the offences covered under the provisions of MMDR Act. However, the

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officials are at liberty to follow the proper procedure before initiating proceedings under the provisions of the MMDR Act.

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For the reasons stated supra, I pass the following:

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ORDER

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(i) The petition is allowed in part. (ii) The proceedings relating to offences under the provisions of Sections 4(1), 4(1A) and 21 of the MMDR Act are hereby quashed. (iii) However, liberty is reserved to the respondent-officials to lodge a complaint in compliance of Section 22 of the MMDR Act.

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(iv) The petition seeking quashing of proceedings for the offences punishable under Sections 24(a), (d), (f), (g), (gg), (h), 73(d), 80, 82, 82(B) and 109 of the Act, 1963 and under Rule 144, 165 of Rules, 1969 is hereby dismissed.

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*alb/-

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Sd/JUDGE

H N Premkumar v. the State of Karnataka

Case brief

What is this about?

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H N Premkumar v. the State of Karnataka

Case brief

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