Kewal Ram Chauhan vs Prithipal Singh Bakshi and Others

V.P. Gupta, J.—Aggrieved from the order dated 20-5-1987 passed by Special Judge, Shimla (Sessions Judge, Shimla), the Petitioner has filed this petition under Sections 397/401 read with Section 482 of the Code of Criminal Procedure (hereinafter the Code). The learned Special Judge declined the prayer of the Petitioner for sending his application to police for investigation and registration of a case against the Respondent.

Briefly, the facts are that the Petitioner filed an application on 14-5-1987 u/s 156(3) of the Code read with Section 8-A of the Criminal Law Amendment Act, 1952 (hereinafter the Amendment Act) with a prayer for ordering investigation and registration of a case under Sections 379/420/120-B, I.P.C. read with Sections 41 and 42 of the Indian Forest Act and Rule 12 of the Timber Transit Rules and Section 5(2) of the Prevention of Corruption Act, 1947 against the Respondents. The Petitioner alleged that Respondents No. 2 and 3 entered into an agreement with Respondent No. 1 on 6-6-1970, for sale of walnut and maple trees standing in Jadgi forest area of Sarahan and Kanchi forest (Kulei) area. Some money was paid by Respondent No. 1 to Respondents No. 2 and 3, but before the various procedural formalities could be completed, the ownership of the land (upon which the trees stood) vested in the Government of Himachal Pradesh under the provisions of the Himachal Pradesh Land Ceiling Act, 1973 (hereinafter the Ceiling Act) which came into force from 24-1-1971. The Respondent No. 2, being a Member of Parliament and now being Chief Minister of Himachal Pradesh, exercised political pressure and undue influence upon the D.F.O., Kotgarh (Respondent No. 4) due to which the Respondent No. 4 allowed the conversion of the trees, carriage and transportation of timber by issuing a felling order dated 2-7-1973 without verifying the ownership of the land. The felling older was issued for 308 walnut and maple trees which stood in Khasra Nos. 553/1627, 617/1627, 758/668 and an amount of Rs. 12,870/- as 25% of the royalty chargeable under law, was deposited by Respondent No. 1. The Respondents No. 2 and 3 accepted payment from Respondent No. 1, fraudulently and with malafide intentions knowing fully well that the land under the trees had vested in the Government and only 60 bighas of land of Khasra No. 758/668 had remained in the ownership of Respondent No. 3, while the remaining land upon which the trees stood, had vested in the State.

195 trees of walnut and 113 trees of maple (total 308 trees) were demarcated and certified to be the ownership of Respondents No. 2 and 3 and the same were marked for felling. Respondent No. 1 felled several trees during 1973-74 and three export permits were issued by Respondent No. 4 on 2-3-1974 (for 8 trucks), on 21-2-1977 (for 23 trucks) and on 2-0-5-1978 (for 15 trucks)

and the Respondent No. 1 could carry this timber outside the territories of Himachal Pradesh for sale.

It was alleged that 161 trees remained standing in the disputed land and Respondent No. 1 filed a civil writ petition No. 89 of 1979 in this High Court which was withdrawn by Respondent No. 1 on 30-4-1979. Thereafter, an application u/s 7 of the Ceiling Act was filed by Respondent No. 1 before the Collector, Rampur seeking permission for converting and transporting the trees on the ground that the sale of the trees in his favour was bonafide. This application was also rejected by the Collector and in 1978 the Respondent No. 1 was debarred from converting the standing trees on the grounds that the land had vested in the Government, and Respondents No. 2 and 3 had declared this land as surplus under the Ceiling Act.

It was also alleged that an amount of Rs. 1710.45 was paid to Respondents No. 2 and 3 as compensation of the land by the Government and the Government was the owner of the standing trees, but in spite of all this, by exercising undue influence another felling order was issued on 21-2-1977 which was validated on 12-9-1977 by Respondent No. 4 in favour of M/s Indian Timber Company for 106 walnut and 37 maple trees.

The Respondent No. 4 on 21-3-1978 again ordered that the firm could not work and the land had vested in the Government, but no steps were taken to stop the implementation of the export permit, dated 20-9-1978. A writ petition filed by Respondent No. 1, was withdrawn. The Petitioner alleged that only 16 logs of timber were shown to be lying as balance by Range Officer, Sarahan on 14-2-1978 and the timber which had not been felled, could not be felled or converted by Respondent No. 1 as compensation had already been paid to the owners, but one Durga Singh, purporting himself to be the general attorney and the secretary of Respondent No. 2, allowed the working period of the trees to be extended although the agreement dated 6-6-1970 for sale of trees had become null and void under the Ceiling Act. The D.F.O. also informed Shri Durga Singh that he had no authority or power to grant permission of working of the forest.

The Petitioner then alleged that the Respondent No. 2 became a Chief Minister of Himachal Pradesh on 8-4-1983 and he knew that the area could not be marked, but a letter dated 6-1-1984 was written to the D.F.O., Rampur informing him that he (Respondent No. 2) had received payment from M/s. Indian Timber Company and export permit be issued. Thereafter, in the year 1984, an Act known as Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982 (hereinafter the Act of 1982) was enforced and no timber could be sold to a private party by any person except to the State Government or its agent. The Respondent No. 4, however, issued a permit on 18-9-1984 which permit was illegal and invalid. The letter dated 6-1-1984 was substituted by another letter dated 6-1-1986 because in the meantime a complaint was made by the Petitioner to the Governor seeking permission to prosecute Respondent No. 2.

The Petitioner further alleged that another lot of 502 scants of maple and walnut trees was discovered in the vicinity of M/s. Laxmi Saw Mill and Respondent No. 1 applied for an export permit to carry this timber along with 67 scants lying as balance of earlier permit. The D.F.O., Rampur under pressure of the Forest Minister instructed the Range Officer, Sarahan to expedite the issuance of permit and the recommendation for issuance of a permit was made to the D.F.O., Rampur. Finally this request was disallowed on 25-2-1986 and the export permit was not issued because the matter was made public.

With these allegations the Petitioner alleged that cognizable offences mentioned in the application were committed by the Respondents under political pressure which was exercised by Respondent No. 2.

The summary of the various allegations is given in para 9 of the application in which it is stated that although 161 trees were not felled till 1978 by Respondent No. 1 (as these trees belonged to the State Government) but these were allowed to be felled subsequently. Further the land had vested in the State Government and Respondents No. 1 to 3 had no authority to remove any trees specifically when the Collector had dismissed their application u/s 7 of the Ceiling Act. A false certificate had also been issued that timber did not belong to the Government. Respondent No. 2 after becoming the Chief Minister of Himachal Pradesh issued letters to the D.F.O., Rohru and Chopal asking them not to issue any permit with respect to forests of Rohru and Chopal without his prior permission, but no such instructions were issued for the private forests of Rampur. Respondent No. 4 could not issue permits in favour of Respondent No. 1 under the provisions of Act of 1982 and balance of timber lying on the road side was not shown. As no balance timber was shown, therefore, the presumption was that no timber was lying on the road on 31-3-1983 and no timber could be exploited by an individual contractor from private land, but Respondent No. 4 issued permit for exploitation of timber in 1983. The Himachal Pradesh State Forest Corporation (hereinafter Corporation) was the sole agent of the Government and no permit could be issued by Respondent No. 4 to an individual contractor. The timber converted in 1973 should have been stacked with the Corporation depot and it was to be re-measured size-wise and auction was to be done. The auction was not done and the timber was auctioned with mala fide intentions at lower price. The Petitioner also alleged that timber was carried in trucks in violation of the Timber Transit Rules. The Petitioner had prayed that the matter be entrusted to the police for investigation u/s 156(3) of the Code.

In support of these allegations, the Petitioner produced photostat copies of various documents.

The learned Special Judge, Shimla found that there were no grounds to allow the prayer of the Petitioner and dismissed the application on 20-5-1987.

I have heard the learned Counsel for the Petitioner.

The learned Counsel for the Petitioner contended that 161 trees had not been identified and these trees were allowed to be felled in 1978 when the land along with the trees had already vested in the Government under the Ceiling Act. The Respondents No. 2 and 3 had no right, title or interest in the land and in fact the Government of Himachal Pradesh had become the owner of the land along with the trees. It was contended that it was necessary for the learned Special Judge to have given some findings about the merits of the case on the various allegations before rejecting the prayer of the Petitioner.

The learned Counsel further contended that Section 156(3) of the Code was independent and the learned Special Judge had powers of Section 190 of the Code and was, therefore, competent to order the investigation of the case. There were sufficient grounds to order an investigation by police.

The learned Advocate General was asked to assist this Court for arriving at a proper decision and the learned Advocate General rendered assistance to this Court in the matter.

The learned Advocate General submitted that Section 156(3) of the Code had no applicability in the facts and circumstances of this case and the Petitioner had suppressed very material facts and was not entitled to a discretionary relief. Further from the allegations, the Petitioner had failed to put forward a prima facie case for exercise of the discretionary powers u/s 156(3) of the Code. He contended that similar allegations against the Respondent No. 2 have also been made before the Lokayukta of Himachal Pradesh, which are still pending decision. The Petitioner had also applied to the Governor of Himachal Pradesh for grant of sanction to prosecute Respondent No. 2 on similar allegations but the Governor of Himachal Pradesh rejected his prayer and in these circumstances, the present application was not maintainable. Reference was made to the transfer application (Cr.M.P.(M)No. 194 of 1987 which was filed by the Petitioner in this Court and which was dismissed by this Court on 24-8-1987.

I have considered the contentions and have also gone through the records of the case and the transfer application Cr.M.P.(M)No. 194 of 1987 (Kewal Ram Chauhan v. State of H.P. and others) decided on 24-8-1987.

Sections 156 and 190 of the Code read as follows:

Police officer''s power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned.

Cognizance of offences by Magistrates.--(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence:

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

Sections 154 - 176 of the Code are in Chapter XII of the Code and this chapter deals with information to the police and their powers to investigate. Sections 190 - 199 of the Code are in Chapter XIV of the Code which deals with conditions requisite for initiation of proceedings. Chapter XV of the Code deals with complaints to Magistrate and Chapter XVI of the Code deals with commencement of proceedings before the Magistrate.

u/s 154(1) of the Code every information relating to commission of a cognizable offence, if given to an officer incharge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information whether given in writing or reduced to writing as aforesaid, shall be sent by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

u/s 154(3) of the Code any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in Sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.

Section 157 of the Code deals with procedure of investigations by the police and it reads as follows:

Procedure for investigation (I) If, from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

Provided that:

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot,

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in Clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government the fact that he will not investigate the case or cause it to be investigated.

Section 158 of the Code deals with the procedure for submission of a report by the police.

Section 159 of the Code gives a power to hold investigation or preliminary enquiry and the Magistate on receipt of a report, can direct an investigation or if he thinks fit, at once proceed or depute any Magistrate subordinate to him to proceed to hold preliminary enquiry or otherwise to dispose of the case in the manner provided in the Code.

Section 170 of the Code deals with the cases which are to be sent to the Magistrate when evidence after investigation is found to be sufficient by the officer incharge of the police station. Similarly, Section 173 of the Code deals with the report of a police officer on completion of investigation, i.e. that after the investigation is complete, the officer incharge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report in the form prescribed.

According to Chapter XII of the Code, when information is received by the police with respect to the commission of a cognizable offence, then the police officer can proceed with the investigation of a case without the order of a Magistrate, who could have enquired into or tried such cognizable offence under Chapter XIII of the Code.

Section 156(3) of the Code empowers a Magistrate who has the jurisdiction to proceed u/s 190 of the Code, to take an order to the officer in charge of a police station to carry out investigation with respect to the commission of acognizable offence as is provided u/s 156(1) of the Code.

Section 190 of the Code authorises a Magistrate to take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence; (b)upon a police report of such facts; and (c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed.

The learneds Counsel for the parties admit that the Special Judge, Shimla, before whom the Petitioner filed an application u/s 156(3) of the Code, had powers of a Magistrate, u/s 190 of the Code.

Hence the Petitioner u/s 190(1) of the Code could satisfy the Special Judge, Shimla that a cognizable offence had been committed by the Respondents and after receiving such information u/s 190(1)(c) of the Code about the commission of a cognizable offence, the Special Judge could direct the officer incharge of a police station to proceed with the investigation of the case. This provision seems to have been inserted in the public interest, so that if the officer incharge of a police station or the police authorities refuse to investigate the case under Sections 154 and 156 of the Code, then the Magistrate is also authorised to make an order for such a ninvestigation, provided he is satisfied that such a cognizable offence has been comitted. This order of investigation, is at a pre-cognizance stage.

At this stage of making an order for investigation, the Special Judge will not be said to be taking cognizance of the case as is held in AIR 1976 Supreme Court 1672 (Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors.). Para 14 of the judgment reads as follows;

This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190 This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 - 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizence of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when onreceiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police u/s 156(3) he cannot be said to have taken cognizance of any offence.

32A. In para 17 it is again observed as follows:

Section 156(3) occurs in Chapter XII, under the caption; "Information to the police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate" The power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in season of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190(1)(a). But if he once takes such cognizance and embarks upon the procedure emboied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a preemptory reminder or intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or charge-sheet u/s 173.

After investigations u/s 156(3) of the Code, it will be for the police authorities to send a report to the Magistrate concerned for taking congnizance of the offence, if they find that any offence has been committed. The Magistrate ordering investigation u/s 156(3) of the Code cannot make an order for the registration of a case because that will be the function of the police authorities and the function of the police authority is quite distinct from the function of a Court. In AIR 1968 Supreme Court 117 (Abhinandan Jha and Ors. v. Dinesh Mishra) in para 18 it is observed:

(18) We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final steps in the investigation, and that final step is to be taken only by the police and by no other authority.

In paras 19 and 20 of the judgment it is observed as follows:

(19) The question can also be considered from another point of view. Supposing the police sends a report, viz., a charge-sheet, u/s 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit a final report, u/s 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action according to law, he cannot certainly infringe (sic.) impinge? upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

(20) Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report u/s 169 of the Code, that there is no case made out for sending up an accused for trial.

In the present case, the allegations in the application filed by the Petitioner before the learned Special Judge are mainly against Respondent No. 2, who is presently the Chief Minister of Himachal Pradesh and it is alleged that he misused his official position as a Member of Parliament and as a Chief Minister and exercised undue influence in getting felling orders, export permits etc. The allegations are that previously Respondent No. 2 was a Member of Parliament and from 8-4-1983 he became the Chief Minister of Himachal Pradesh and the permits etc. were got issued by his intervention and at his instance in the years 1984 and 1986 although the sale of the trees had taken place by an agreement dated 6-6-1970. The Ceiling Act was enforced from 24-1-1971, but felling orders were obtained in 1973 and export permits were issued in 1974, 1977 and 1978 although compensation for the land upon which the trees were situate, was received by Respondents No. 2 and 3, whose land was declared surplus.

The allegations by the Petitioner are that all the Respondents entered into a criminal conspiracy and thus committed the offences under the Indian Penal Code, Indian Forest Act, Timber Transit Rules and the Prevention of Corruption Act. It was one single transaction for which all the Respondents were liable for having committed the various offences.

The main contention of the Petitioner''s counsel was that 161 trees had remained unidentified but they were allowed to be felled and removed after 1978, although the land under the trees has vested in the Government and that all this was done at the instance of Respondent No. 2(who became the Chief Minister of Himachal Pradesh) by misuse of the public office/high position. In fact, Respondent No. 2 manipulated to get the various orders for the felling and removal of timber from the forests by exercising undue influence.

According to the Petitioner, Respondent No. 2 is the principal offender under whose directions and undue influence and official pressure, everything was done and the various offences were committed.

The learned Counsel for the Petitioner frankly and rightly conceded that a complaint was made to the Governor of Himachal Pradesh about the commission of the aforesaid offences with a view that action be taken against Respondent No. 2, who happened to be the Chief Minister. This fact, that a complaint was presented to the Governor of Himachal Pradesh seeking permission to prosecute Respondent No. 2, finds mention in para 7 of the application filed before the learned Special Judge, Shimla. It was brought to my notice that this sanction was refused by the Governor of Himachal Pradesh, but this fact is not mentioned in the application filed before the learned Special Judge, Shimla, or in the petition filed in this Court. The learned Counsel for the Petitioner, however, frankly conceded that the sanction to prosecute Respondent No. 2 was not accorded and the prayer of the Petitioner seeking permission to prosecute Respondent No. 2 was refused by the Governor of Himachal Pradesh. The learned Special Judge in his order dated 20-5-87 has mentioned about this fact and in order to verify the factual position, the file of transfer application (Cr.M.P.(M) No. 194 of 1987), which was dismissed as withdrawn by this Court on 24-8-1987, was summoned. In para 17 of the transfer application it is stated that the Petitioner made a complaint to the Governor of Himachal Pradesh seeking sanction u/s 197 of the Code to prosecute Respondent No. 2, but the Petitioner was not given the sanction and his application was rejected out rightly without assigning any reason whatsoever. With this transfer application the Petitioner had also annexed the copy of the complaint dated 16-8-1986 (Annexure PD) filed before the Governor of Himachal Pradesh. It is thus proved that the Petitioner had approached the Governor of Himachal Pradesh for seeking permission to prosecute Respondent No. 2 for the various offences, for which the Petitioner now seeks the aid of Section 156(3) of the Code.

Thus, the police will have to seek the sanction of the Governor of Himachal Pradesh to prosecute Respondent No. 2 before submitting a charge-sheet to the Magistrate after completion of the investigation and finding that there are sufficient grounds to proceed in the matter.

It was also brought to my notice by the learned Advocate General that a similar complaint has been filed before the Lokayukta of Himachal Pradesh against Respondent No. 2 by one Shri R.L. Suri containing similar allegations about the violation of Ceiling Act, evasion of registration fee, gift tax and some other taxes, irregular grant of permits for felling and transportation of timber, violation of normal rules and procedure for grant of work order, misuse of public funds for various development works in Rampur and Sarahan in Shimla district, acquisition of land for construction of bus-stand in Rampur.

The institution of a Lokayukta was introduced in Himachal Pradesh by the Himachal Pradesh Lokayukta Act, 1983 (Act 17 of 1983) and the office of the Lokayukta is presently held by a retired Chief Justice of High Court. This complaint against Respondent No. 2 is still not disposed of by the Lokayukta and is pending decision as is admitted before me.

The Petitioner in his application before the learned Special Judge has not mentioned anything about the complaint made before the Lokayukta and he has also not mentioned the facts that this application seeking permission to prosecute Respondent No. 2 was rejected by the Governor of Himachal Pradesh. The Petitioner has thus tried to suppress very material facts, when the application u/s 156(3) of the Code was made by him before the learned Special Judge seeking directions to the police for investigation.

The suppression of these facts in the application disentitles the Petitioner to seek the discretionary relief and the learned Special Judge is right in rejecting his prayer on this ground.

On merits the learned Counsel for the Petitioner contended that 161 trees had remained unidentified and were felled and removed/exported after the enforcement of the Ceiling Act, that is, 24-1-1971. The agreement is (annexure PA and PB) dated 6-6-1970 and the trees were agreed to be sold to Respondent No. 1 from forest areas of Respondent No. 2 and the price of the trees had been settled. The various formalities were to be completed by Respondent No. 1 who was the vendee and the responsibility for felling, demarcation, export, payment of royalty were to be completed by Respondent No. 1. The Respondent No. 2 had also agreed that Respondent No. 1 would complete exploitation within a period of four years, but the period could be extended at the instance of Respondent No. 2.

As the trees had been sold and the trees were to be cut and removed from the forest, therefore, these trees are to be considered as moveable property, There is not interse dispute between Respondent No. 1 and 2 about the sale of trees. In thes circumstances, the enforcement of the ceiling Act from 24-1-1971 cannot have any effect upon the sale of trees, which had in fact become the ownership of Respondent No. 1. In these circumstances, it cannot be said that under the Ceiling Act the right title, or interest in the trees which had been sold, vested in the Government from or after 24-1-1971.

The ownership of the land under trees could vest in the Government, if it was declared as surplus land and the receipt of compensation by the owners for the land could not divest the buyer of the trees from ownership of trees. By filing a writ petition the Respondent No. 1 only claimed ownership of the trees by virtue of the agreement dated 6-6-1970 andhe withdrew this writ petition on 30-4-1979 so that he could apply to the Colletor for regularisation of his sale.

The Petitioner alleged in the application that felling orders were obtained for 308 trees by Respondent No. 1 on payment of Rs. 12,870/- as 25 % of the royalty. As trees which had been sold and which were to be removed from the land, did not vest in the Government, therefore, Respondent No. 1 could remove the trees. In para 3 of the application it is all eged that about 60 bighas of land is still in ownership of Respondent No. 2.

As the Respondent No. 1 had become the owner of the trees, therefore, issuance of felling orders or export permits cannot be considered to be any illegality or irregularity in the facts and circumstances of the case.

The Corporation was authorised to sell the timber, but the Corporation could appoint owners as its sub-agents for the purpose of effecting the sale of timber and a notification issued by the Government for this purpose was shown to me in the Court. In these circumstances, the issuing of export permits by Indian Timber Company is not an illegality.

Section 156(3) of the Code gives discretionary powers to the Special Judge and the learned Special Judge has considered the various factors in his order dated 20th of May, 1987 and has exercised the discretion in a manner which cannot be said to be arbitrary or non-judicious.

The Governor of Himachal Pradesh has already refused permission to the Petitioner for prosecution of Respondent No. 2, who is a public servant. Before prosecuting Respondent No. 2 for an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties, it is necessary to obtain the sanction of the Governor of Himachal Pradesh, in view of the provisions of Sections 197 of the Code and 6 of the Prevention of Corruption Act, Section 197 of the Code reads as follows:

197 Prosecution of Judges and public servants:

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

(a) XXXX.

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

(2) XXXX

(3) XXXX

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

Section 6 of the Prevention of Corruption Act reads as follows:

(1) No Court shall take cognizance of an offence punishable u/s 161 or Section 164 or Section 165 of the Indian Penal Code or under Sub-section (2) or Sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,

(a) XXXX.

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

The object of these sections is to guard against vexacious (Sic) proceedings against public servants and to secure the well considered opinion of a superior authority before a prosecution is launched A public servant should not generally be exposed to harrassment of a frivolous or speculative prosecution and his interest should be safe-guarded.

The learned Judges of the Supreme Court in R.S. Nayak v. A.R. Amtulay 1984 S.C. 684 have observed in para 19 of die judgment:

Section 6 bars the Court from taking cognizance of the offences there in enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction. Section 8 of 1952 Act prescribes procedure and powers of Special Judge empowered to try offences set out in Section 6 of 1947 Act. Construction of Section 8 has been a subject of vigorous debate in the cognate appeal. In this appeal we will proceed on the assumption that a Special Judge can take cognizance of offences he is competent to try on a private complaint Section 6 creates a bar to the Court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in Clauses (a), (b) and (c) of Sub-section (1). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant (See C.R. Bansi Vs. The State of Maharashtra, Existence thus of a valid sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the Court. Therefore, when the Court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offences alleged to have committed by him as public servant Undoubtedly the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164 I.P.C. and Section 5(2) of 1947 Act clearly spell out that the offences therein defined can he committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the Court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the Court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary u/s 6 has been held to be a trial without jurisdiction by the Court. (See R.R. Chari Vs. State of U.P., and S.N. Bose v. State of Bihar (1968) 3 SCR 563 : AIR 1968 SC 1292. In Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, it was held that a trial without a sanction renders the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the Court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime this vital consideration ceases to Exist. As necessary corollary, if the accused has ceased to be a public servant at the time when the Court is called upon to take cognizance of the offence alleged to have been committed by him as public servant, Section 6 is not attracted. This aspect is no more res integra. In S.A. Venkataraman Vs. The State, this Court held as under:

in our opinion, in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is in evitable that at the time a Court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. In the present appeals, admittedly, the Appellants had ceased to be public servants at the time of Court took cognizable (sic) of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.

And this view has been consistently followed in C.R. Bansi Vs. The State of Maharashtra, and K.S. Dharmadatan Vs. Central Government and Others, . It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the Court is called upon to take cognizance of the offence of which he is accused.

In the present case the sanction to prosecute Respondent No. 2 has already been refused by the Governor of Himachal Pradesh and to entrust the case for investigation u/s 156(3) to the police will not serve any purpose.

Although Respondents No. 1, 3 and 4 are not public servants, yet because the Petitioner has alleged a conspiracy between all the Respondents and the alleged offences arise out of the same incident transactions and the evidence against all the Respondents would be common, therefore it is not possible to split up the trial by prosecuting only Respondents No. 1, 3 and 4, and not prosecuting Respondent No. 2. This can cause serious miscarriage of justice because the main allegations of the Petitioner are against Respondent No. 2 only.

In view of the circumstances narrated above, the learned Special Judge was justified in rejecting the prayer of the Petitioner. I have no reasons to differ with the various findings and lessoning of the learned Special Judge. There is no merit in this petition which is hereby dismissed.