S. Shankar vs State of Karnataka and Another

Subhash B. Adi, J.—The petitioner in Criminal Petition No. 2708 of 2009 has sought for quashing of the proceedings in C.C. No. 73 of 2008 on the file of Judicial Magistrate First Class, Chikkanayakanahalli, dated 11-2-2008.

In Cri. P. No. 2690 of 2009 and connected matters, the petitioners have challenged C.C. No. 885 of 2008 and connected matters.

The offences alleged against these petitioners are one u/s 24(f), 24(g) read with Rule 41, Sub-rule (2) of the Karnataka Forest Act, 1963 and Karnataka Forest Rules, 1969. However, the charge-sheet is filed only for the offences punishable under Sections 24(e), 24(f), 24(g) and 24(h) of the Karnataka Forest Act and Rule 41 of the Karnataka Forest Rules. In other cases also, the charge-sheet is filed for offence punishable u/s 73, Clause (d), Section 64A read with Section 104 of the Karnataka Forest Act inter alia alleging encroachment in the forest area.

Learned Counsel for the petitioners submits that these offences are non-cognizable offences and the investigation of non-cognizable offence is barred u/s 155, Sub-section (2) of the Criminal Procedure Code, 1973 without the order of the Magistrate, having power to try such cases or commit to the trial.

Learned Government Pleader submits that no such permission has been obtained by the Forest Department ordering investigation of the matter. It is not disputed that the offences alleged against the petitioners being non-cognizable and there being no permission or order obtained from the jurisdiction Magistrate, the investigation made by the Forest Department and filing of charge-sheet is violative of provisions of Section 155(2) of the Criminal Procedure Code, 1973.

In this regard, learned Counsel for the petitioners rely on the judgment in the case of Keshav Lal Thakur Vs. State of Bihar, wherein in similar circumstances taking cognizance by the learned Magistrate in respect of non-cognizable offences without the written order as required u/s 155(2) of the Cr. P.C., the Apex Court has quashed the proceedings.

Considering the same, I find that offences alleged against the petitioners being non-cognizable and the investigation is done without permission u/s 155(2), the proceedings initiated by the Police are required to be quashed. Accordingly, petition is allowed. However, liberty is reserved to the Forest Department to proceed in accordance with law.