CRM No. M-14152 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM No. M-14152 of 2010 (O&M) Date of Decision: 15th November, 2011 Reet Pal Singh & others ……… Petitioners Versus State of Punjab & another ………… Respondents ***** CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. Shiv Kumar, Advocate for the petitioners. Mr. G.S. Brar, Asstt. A.G., Punjab. Mr. R.K. Joshi, Advocate for respondent No.2. **** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in this petition is for quashing complaint No. 37 of 2004 dated 20.8.2004 (Annexure P-5) and the summoning order dated 22.2.2005 (Annexure P-6). It is the contention of the counsel for the petitioners that the petitioners are all officials of the department of Forest. In exercise of their official duties and in discharge thereof they conducted a raid at the house of Umesh Kumar and recovered Khair logs belonging to the Forest Department for which proceedings were initiated against Umesh Kumar, who is the brother of the complainant. His contention is that a petition under Section 482 Cr.P.C. was preferred by five of the co-accused of the petitioners being CRM No. M-55980 of 2005 for quashing of the complaint and the summoning order, which has been impugned herein. The same was allowed by this Court vide order dated 5.12.2008 (Annexure P-7). His contention is that the petitioners are similarly placed and, therefore, are entitled to the same benefit. He submits that as per the provisions contained under Section 74 of the Indian Forest Act prosecution against the petitioners CRM No. M-14152 of 2010 -2- could not be launched. That apart, he contends that before taking cognizance of an offence against the petitioners, who had committed the alleged act in discharge of their official duties, sanction was required to be obtained from the competent authority as the petitioners were public servants and, therefore, summoning order qua the petitioners cannot sustain. He accordingly prays that the present petition be allowed by quashing the complaint and the summoning order. On the other hand, counsel for the respondents submits that the present petition deserves to be dismissed on the ground that the petitioners have not approached this Court with clean hands as they have failed to disclose order dated 12.12.2009 passed by the Sub Divisional Judicial Magistrate, Dasuya vide which the brother of the complainant namely Umesh Kumar stands acquitted in report No. 133 dated 13.8.2004 under Sections 26, 33, 52, 55 and 63 of the Indian Forest Act, 1927. His further contention is that Section 74 of the Indian Forest Act is not applicable to the instant proceedings as the protection granted under that provision is only with regard to the initiation of a suit against a person who has done an act in discharge of duty his official capacity. These proceedings are criminal in nature as such the bar contained under Section 74 of the Indian Forest Act would not be applicable to the case in hand. That apart he contends that in the light of the acquittal of the brother of the respondent-complainant wherein the State was unable to prove that Khair trees were cut by Umesh from the Forest Land the offence against the petitioners is fully proved as the said Khair wood was taken away by the police from the house of the complainant. Accordingly, he prays for dismissal of the present petition. I have heard counsel for the parties and have gone through the records of the case. It is not in dispute that Report No. 133 dated 13.8.2004 under Sections 26, 33, 52, 55 and 63 of the Indian Forest Act, 1927 was sent to court by the Divisional Forest Officer, Talwara wherein it was alleged against Umesh Kumar, CRM No. M-14152 of 2010 -3- brother of the complainant-respondent No.2 that a raid was conducted and illegally stored 38 logs of Khair wood were recovered from his house. In the enquiry in which Umesh Kumar was associated, it was found that all the trees were cut from the land regarding which notification under Sections 4 & 5 had already been issued under the Forest Act. This area from where the trees have been cut/fell was under the Control of the Forest Department and, therefore, the offence against Umesh Kumar was made out under the Forest Act and the proceedings were initiated. It is true that Umesh Kumar stands acquitted by the Sub Divisional Judicial Magistrate, Dasuya vide order dated 12.12.2009 by giving him the benefit of doubt as the prosecution had failed to prove that Khair trees were cut from the land, which was within the control of the Forest Department, for the reason that the notifications under Sections 4 & 5 of the Forest Act, which were alleged to have been issued had not been proved on record. Nor any revenue record was produced in support of this contention. Merely because the prosecution has failed to prove its allegation against Umesh Kumar, it would not be enough to prove that the trees which were recovered from the alleged possession of the complainant, were belonging to him. Further the instant complaint has been initiated on 20.8.2004, which appears to be a counter blast to the proceedings initiated against Umesh Kumar, who is the brother of the complainant and, as a matter of fact, as is apparent from the proceedings initiated against him, the recovery was effected from the house of Umesh Kumar and not from the house of the complainant. What is alleged by him is that these Khair trees were taken away from his house in the complaint whereas it was not the stand of the accused Umesh Kumar before the trial Court that Khair trees were not recovered from his house. That apart, the petitioners were performing their official duties when they had raided the house of Umesh Kumar and had recovered the Khair wood from his house. The recovery as has been proved in enquiry No. No. 37 of 2004 dated 20.8.2004 (Annexure P-5) from the house of Umesh Kumar. The contention of the counsel for the petitioners that in fact the CRM No. M-14152 of 2010 -4- wood was stolen from his house cannot sustain. That apart, since the petitioners were performing their duties, the sanction from the competent authority for initiating proceedings against them was mandated before the Court could take cognizance for prosecution of the offences, which are alleged to have been committed by them. I am of the considered view that the act which has been attributed to the petitioners even if taken to be correct but without grant of sanction from the competent authority, the trial Court could not have taken cognizance of the offence which is alleged to have been committed by the petitioners. On this ground also the complaint and the summoning order cannot sustain. As contended by the counsel for the complainant that the protection in favour of the petitioners as provided under Section 74 of the Forest Act, may be correct with regard to the bar of civil suit only but still in the light of the fact that they had committed the omission, as alleged, while performing their official duties as public servants prosecution cannot sustain without sanction. In view of the above, the present petition is allowed. Complaint No. 37 of 2004 dated 20.8.2004 (Annexure P-5) and the summoning order dated 22.2.2005 (Annexure P-6) are hereby quashed. 15th November, 2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE