Divisional Manager (Sales) vs M.Z.Manhas

By this common order, both the Criminal Revisions shall be disposed of together.

Brief facts leading to the filing of these two petitions, both by the Divisional Manager (Sales) Jammu and Kashmir State Forest Corporation may

be summarised as under:

A complaint purportedly under sections 379 and 120 (B) RPC was filed by the petitioner against as many as eight persons in the court of Chief

Judicial Magistrate, Jammu which was transferred by him to the court of Forest Magistrate Jammu for disposal according to law. In this complaint

it was averred by the complainant that during the course of patrolling and performing his normal duties on 25.10.1991 at about 10 AM he

accosted a Truck bearing No .6616 JKQ on Green Belt Park Road, loaded with 166 Scants of Deodar of various sizes as was shown in the

seizure prepared and filed with the complaint.

On preliminary enquiry from the driver of the Truck namely, Dev Raj, who was cited as accused No. 7 in the complaint, it was revealed that the

timber carried in the Truck was not covered by the legal document. In order to ascertain the legality or otherwise of the Deodar timber, the truck

was seized and escorted to Bachan Depot wherefrom it was disclosed to have been loaded. On preliminary enquiry from Bachan Depot it was

revealed that the timber had been stalthily loaded by accused persons mentioned in the complaint in order to commit theft/Robbery of Government

property after hatching a conspiracy.

The complainant submitted that the matter was investigated by him under relevant sections of Forest Act. According to him accused No.8

mentioned in the complaint had fled away from the scene and was at large. The prayer clause of the complaint is very apparent which may be

reproduced for ready reference :

It is, therefore, prayed that the appropriate warrant may very kindly be issued against the accused mentioned above, so that they cannot

hamper/jeoparadise the process of the investigation. Any further offender revealed during the course of investigation will be booked at the time of

presentation of challan. Further it is prayed that the Truck No. referred above seized by the undersigned be ordered confiscated in favour of the

Government as per relevant provision of Forest Act. Complainant"".

Vide its order dated 6.1.1992, learned Forest Magistrate, Jammu dismissed this complaint on the ground that the offenses were not known to

the Department and that the names of actual accused persons were not mentioned in the complaint. Also that the names of witnesses were not

revealed by the complainant and that the complaint was not filed under any relevant provision of law. Certain other observations were also made

by the learned Magistrate in her order dated 6.1.1992 dismissing the complaint. This is the order which is under challenge in Criminal Revision No.

14/92.

Even while the complaint was pending before the Magistrate, one Vijay Kumar who was cited as accused No.8. in the above referred

complaint filed an application before the Magistrate praying for the release of the timber seized by the complainant which was the subject matter of

the above referred complaint. Vide impugned order dated 25.5.1992 passed by the learned Magistrate, 130 scants of Deodar were ordered to be

released in favour of one Bansi Lal son of Sh. Bashamber Dass C/O Himalayan Timber Traders, Canal Road, Jammu whose name appears to

have been proposed by the applicant Vijay Kumar. Even though the timber was not ordered to be released in favour of applicant Vijay Kumar, the

learned Forest Magistrate at his instance and on his proposal released it in favour of the nominee Bansi Lal on his furnishing an undertaking that he

shall keep the timber intact in safe custody and produce it in the court as and when he was directed. It is this order dated 25.5.1992 which is

subject matter of challenge in Criminal Revision No. 46 of 1992.

Sections 26 and 27 of the Forest Act read as under:

When there is reason to believe that a Forest offence has been committed in respect of any forest produce, such produce, together with all

tools, boats, carts, (motor vehicles) and cattle used in committing any such offence, may be seized by any Forest Officer or Police Officer. Every

officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall as soon as

may be, make a report of such seizure to the (Judicial Magistrate) having jurisdiction to try the offence on account of which the seizure has been

made:

Provided that, when the forest produce with respect to which such offence is believed to have been committed is the property of Government,

and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

Upon the receipt of any such report the (Judicial Magistrate) shall, with all convenient despatch, take such measures as may be necessary for

the arrest and trial of the offender and the disposal of the property according to law"".

A plain reading of the aforesaid two provisions leaves no one in any doubt that it is duty of the Forest Officer to seize any forest produce together

with all tools, boats, carts, motor vehicles and cattle used in committing any such offence, when he has reason to believe that a forest offence has

been committed in respect of such forest produce.

As soon as he therefore, seizes such property, he is required to make a report of such seizure to the Judicial Magistrate having jurisdiction to try

the offence. This all is provided in Section 26 as noticed above. Section 27 contemplates that upon receipt of such report, Judicial Magistrate shall

with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property

according to law. There is no doubt that the complaint purported to have been styled u/s 379 and 120 (B) of RPC was in fact a report by the

Forest Officer namely Divisional Manager (Sales) of Jammu and Kashmir State Forest Corporation informing about the seizure and the occurrence

of the offences and requesting her to take measures and issue directions which might be necessary for the arrest and trial of the offenders at that

time. Had the Magistrate cared to have gone through these two provisions of the Forest Act and had she bothered to look into the contents of the

complaint closely, I am quite sure she would have found out that it was not the criminal complaint in the normal sense of expression and that it was

only a report made to her by the concerned Forest Officer seeking her directions and initiation of appropriate action in terms of sections 26 and 27

of the Act. It was without any reasoning, therefore, that the learned Magistrate dismissed this complaint treating it as a complaint in ordinary

parlance seeking to initiate prosecution against the persons mentioned therein. I would not like to add anything more than this because I propose to

remand the matter to the Magistrate for fresh enquiry/investigation and for issuing further directions which would be necessary for meeting the ends

of Justice.

The complaint thus having been dismissed on 6.1.1992, the petitioner approached this court by filing Criminal Revision NO. 14/92 and vide

order dated 9.3.1992, this court issued notices to respondents to show cause as to why the petition be not admitted to hearing. Record of the trial

Magistrate was also sent for. Consequent upon the aforesaid directions for summoning the record from the trial Magistrate vide despatch No.

246F dated 16.3.1994, learned Forest Magistrate sent the record of the above referred criminal complaint to this court.

Even while Criminal Revision No. 14/92 was pending in this court wherein the act of the Magistrate in dismissing the complaint was under

Judicial scrutiny and even while the Magistrate was aware of the pendency of the petition in this court, she dealt with the application of Vijay

Kumar, one of the respondents in Criminal Revision No. 14/92 (who was one of the accused named in the criminal complaint) for release of timber

in his favour. It is no doubt true that the application for release of timber was filed on 4.11.1991, but then final order on this application came to be

passed by the learned Magistrate on 25.5.1992 i.e. more than two months after she had sent the record to this court when she was fully aware of

the pendency of criminal revision in this court and she was conscious of the fact of her earlier order dismissing the complaint was under challenge in

the aforesaid criminal revision pending in this court.

The property which was the subject matter of criminal Revision pending in this court, viz, 130 scants of Deodar (some more scants having

allegedly disappeared in the meantime) was also the subject matter of criminal complaint filed by the Corporation in which investigation had been

initiated and in which allegations were levelled against some persons who were thought to have been associated with the theft etc. of the forest

produce and against whom warrants of arrest were prayed for by the complainant before the Magistrate. The entire matter was pending judicial

scrutiny by this court and yet, throwing all canons of propriety to wind and little caring for the fact that this court was seized of the matter, totally

unmindful of the anticipated result of judicial scrutiny and in utter derogation to the authority of this court the Magistrate, in sheer disregard of all

judicial principles ordered the release of timber in favour of the person mentioned above, namely Bansi Lai who in fact was the nominee of one of

the accused persons. I need not go into the merits of the order, viz, whether the timber ought to have actually been released in favour of one party

or the other or as to whether it ought to have in fact been kept on the superdnama of the Forest Corporation itself, or dealt with in any other

manner as was thought or would have been thought appropriate and prudent by the Magistrate concerned. The merits of such an order would have

come up for judicial scrutiny in normal circumstances. Here was a case where a Magistrate who is subordinate to this court and who is subject to

this court's revisional jurisdiction and its overall general superintendence and control, committed an act of impropriety by resorting to such uncalled

for exercise of jurisdiction which was nothing, but sheer abuse of power and authority vested in her under law. The minimum that was required and

expected of the Magistrate was that she should have waited for the conclusion of proceedings in the pending criminal revision in this court and then

to have dealt with the matter of releasing of timber in the light of the result and directions, if any, in the said criminal revision. For this reason, alone

the order impugned passed on 25.5.1992 deserves to be setaside.

Both the petitions accordingly are allowed and both the orders dated 6.1.1992 and 25.5.1992 are setaside. The matter is remanded to the

Forest magistrate for taking recourse to proceedings afresh under law and for issuing such directions as are warranted on the merits of the case.

The parties through their learned counsel are directed to appear before the Forest Magistrate on Oct. 26, 1994.

Two copies of this judgment shall immediately be transmitted by the Additional Registrar to the Registrar. The Registrar shall put up one copy

before the Hon'ble Chief Justice so that the matter is dealt with appropriately on the administrative side. The other copy shall be placed on the

personal file of the officer namely Miss Sudesh Wariku, Munsiff Judicial Magistrate, presently posted in Hiranagar who had passed the orders

impugned in this petition.