Sri T. Ravi and Another vs State of Karnataka

A.C. Kabbin, J.—These revision petitioners were prosecuted in C.C.No. 641/ 2002 in the Court of the J.M.F.C., Koppa, for an offence punishable u/s 87 of the Karnataka Forest Act r/w 379 of the Indian Penal Code. On 29.10.2002, they had been found travelling in a bus bearing No. KA-18/A 4884 belonging to Sahakara Sarige. The prosecution contended that a bag containing sandal wood chips was found in their possession. Alleging that they had cut a sandal wood tree and removed the chips from the forest, they were tried for an offence punishable u/s 87 of the Karnataka Forest Act r/w Section 379 of the I.P.C. After trial, they were convicted by the Learned J.M.F.C. for the said offence and each of them was sentenced to undergo imprisonment for 3 years and to pay a fine of Rs. 10,000/-, in default to undergo S.I. for one year. The appeal preferred by them in Crl. A. 123/04 was dismissed by the Learned Sessions Judge on 18-10-2005. Challenging both the judgments, the present revision petition has been preferred.

Sri. H.P. Leeladhar, Learned Counsel for the petitioners submits that in view of enhancement of sentence for the offence punishable u/s 87 of the Karnataka Forest Act by the amendment to the Karnataka Forest Act in 2001, which amendment came into force from September 2002, the offence was triable by a Court of Sessions, as stipulated in part-II of the I Schedule to the Code of Criminal Procedure and therefore the trial conducted and decision given by a Magistrate of the First Class was without jurisdiction.

Sri. Satish R. Girji, Learned High Court Government Pleader after verifying the provisions of the Karataka Forest Act as amended submits that since there is no special provision in the Karataka Forest Act empowering a Magistrate to try an offence under the Karataka Forest Act carrying a sentence exceeding seven years, the provisions of the Code of Criminal Procedure will prevail and therefore in case, this Court accepts the plea of the revision petitioner, the matter may be remanded for fresh trial by the Sessions Judge.

The punishment provided for an offence punishable u/s 87 of the Karataka Forest Act was imprisonment for a term which may extend to seven years and fine which may extend to twenty five thousand rupees. By amendment effected by the Karataka Forest (Amendment) Act 2001, the provision has been modified and the punishment now provided for the said offence is imprisonment which may extend to ten years, and fine which may extend to one lakh rupees. Part II of the 1st schedule to the Code of Criminal Procedure provides that where punishment provided for an offence other than the offence under the Indian Penal Code is imprisonment for more than seven years, such offence shall be tried by a Court of Sessions. There is no special provision in the Karnataka Forest Act empowering a Magistrate to try any such offence under the Karnataka Forest Act, despite the punishment provided being imprisonment exceeding seven years. Therefore, a magistrate of the First Class or a Chief Judicial Magistrate has no jurisdiction to try a person accused of an offence punishable u/s 87(2) of the Karnataka Forest Act. If any Magistrate or a Chief Judicial magistrate tries or has tried a person accused of having committed an offence punishable u/s 87(2) of the Karnataka Forest Act subsequent to 5-9-2002, it will be an irregularity, which in view of Clause (1) of Section 461 of the Code of Criminal Procedure renders the proceedings void.

It is seen that the date of offence in the present case is 29.10.2002 arid the criminal case was filed in the same year. The evidence was recorded in 2003 and the judgment of the Trial Court was pronounced on 3rd November 2003. All these steps are subsequent to the date of amendment to the Karnataka Forest Act. Consequently the whole Trial was vitiated rendering the conviction void.

At this stage, Sri. H.P. Leeladhar, Learned Counsel for the revision petitioner submits that in view of lapse of time, it may not be necessary to send back the matter and in view of the illegality in the procedure adopted, the matter may be closed. The irregularity noticed does not affect the charge sheet and registration of the case in the Court of the JMFC. Taking into consideration the gravity of the offence, I am of the opinion that an opportunity has to be given to the prosecution to prove the case before the competent Court.

For the above said reasons the revision petition is allowed and the conviction of the revision petitioner for the offence punishable u/s 87 of Karnataka Forest Act R/W 379 of Indian Penal Code and consequent sentence are set aside and the matter is remitted to the Learned J.M.F.C. Koppa, to consider the matter in the light of the observations made above, for committing the case to the Court of Sessions. The accused is directed to appear before the J.M.F.C, Koppa on 24.4.2006 and to take further instruction in the matter.