Subhash vs State of Rajasthan

Vijay Bishnoi, J.—This Criminal Misc. Petition under section 482 CrPC has been filed by the petitioner with a prayer for quashing of the FIR No.16/2016 lodged at Police Station, Talwara, District Hanumangarh for the offences punishable under sections 41 & 42 of the Rajasthan Forest Act, 1953 (for short ''the Act of 1953'' hereinafter).

Learned counsel for the petitioner has argued that the offences punishable under Sections 41 and 42 of the Act of 1953 are non-cognisable offence and as per the provisions of Sub-Section (2) of Section 155 Cr.P.C., the investigation into the non-cognisable offence cannot be conducted by a police officer without any order of the Magistrate having power to try such case or commit the case for trial. It is argued that in the present case, there is no order of Magistrate for registration of FIR against the petitioner for the offences punishable under Sections 41 and 42 of the Act of 1953. Hence, the impugned FIR may kindly be quashed.

In support of above contentions, learned counsel for the petitioner has placed reliance upon the judgments of this Court in the case of Pintu Dey v. State of Rajasthan & Anr. decided on 09.4.2015 and Pappu Ram v. State of Rajasthan reported in 2015 (1) Cr.L.R. (Raj.) 304.

Learned Public Prosecutor has opposed the criminal misc. application and argued that as per the provisions of Section 64 of the Act of 1953, any Police Officer has power to arrest any person without warrant against whom a reasonable suspicion exists of his having been involved in any forest offence punishable with imprisonment for one month or upwards and, therefore, the police officer is also competent to register and investigate any FIR against any person in which the complaint is made for commission of offence under Sections 41 and 42 of the Act of 1953.

However, learned Public Prosecutor has fairly conceded that the punishment provided under Sections 42 of the Act of 1953 is less than 3 years, therefore, the offence punishable under Section 42 of the Act of 1953 is non-cognisable offence.

Heard learned counsel for the petitioner and perused the impugned order.

Sub-section (2) of section 155 of CrPC reads as under:

"(2) No police officer shall investigate a non-cognisable case without the order of a Magistrate having power to try such case or commit the case for trial."

Part-II of Schedule-I of CrPC reads as under:

"II - Classification of Offences Against Other Laws

Offence

Cognisable or Non-cognisable

Bailable or Non-bailable

By what Court triable

1

2

3

4

If punishable with death, imprisonment for life, or imprisonment for more than 7 years, Cognisable

Non-bailable

Court of Session

If punishable with imprisonment for 3 the first class years, and upwards but not more than 7 years.

Cognisable

Non-bailable

Magistrate of the First class

If punishable with imprisonment for less than 3 years or with fine only.

Non-cognisable

Bailable

Any Magistrate

As held by the Andhra Pradesh High Court

The punishment provided in Section 42 of the Act of 1953 is upto 6 months or fine or both, therefore, as per Part II of Schedule-I of CrPC, the said offence is non-cognisable offence and as per Sub-Section (2) of Section 155 Cr.P.C., no Police Officer shall investigate a non-cognisable case without an order of Magistrate.

Admittedly, the impugned FIR has been lodged against the petitioner without there being any order of Magistrate having power to try such case or commit the case for trial.

In view of above discussions, the action of registration of impugned FIR against the petitioner without there being any order of Magistrate having power to try such case or commit the case for trial, is violative of Sub-Section (2) of Section 155 of Cr.P.C.

Resultantly, this criminal misc. petition is allowed. The impugned FIR No.16/2016 of Police Station, Talwara, District Hanumangarh is quashed. However, it will be open for the Investigating Officer to avail appropriate remedy as provided under the law.

Stay petition stands disposed of.