1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. REVISION APPLICATION NO. 43 OF 2009 Mahadeo s/o Somnath Swami, Aged 53 years, Occupation Agriculture, Resident of Mahadeo Gulli, Ahemadpur, Taluka Ahemadpur, District Latur. Applicant V E R S U S 1. The State of Maharashtra 2. Shivling Shivacharya Guru Madwal Shivmurti, Aged 82 years, Occupation Mathapati, Resident of Mahadev Galli, Ahemadpur, Taluka Ahemadpur, District Latur. 3. A.E. Paratwagh (Circle Officer), Aged 45 years, Occupation Service, R/o Circle Office, Ahemadpur, Taluka Ahemadpur, District Latur. 4. Sambhaji E. Adkune, Tahsildar, Aged 45 years, Occupation Government Service, R/o Tahsil Office, Ahemadpur, Taluka Ahemadpur, District Latur. Presently working as Deputy Collector, Udgir, District Latur. 5. Dinkar Shinde, Police Inspector, Aged 45 years, Occupation Government Service, R/o Ahemadpur Police Station, Ahemadpur, Taluka Ahemadpur, District Latur. Presently working Respondents 2 as P.I. Divisional Caste Certificate Verification Committee and Divisional Social Welfare Officer, District Aurangabad. 6. Sunil Yadav, Sub Divisional Officer, Aged 44 years, Occupation Government Service, R/o Sub Divisional Office, Udgir, Taluka Udgir, District Latur. Presently working as Deputy Collector, Collector Office, District Parbhani. 7. Gururaj s/o Manmath Swami, Aged 30 years, Occupation Manager Veer Math, R/o Mahadev Galli, Ahemadpur, Taluka Ahemadpur, District Latur. 8. Vishwabhar s/o Manmath Swami, Aged 33 years, Occupation Service, R/o Mahadev Galli, Ahemadpur, Taluka Ahemadpur, District Latur. 9. Vasant s/o Bapurao Shetkar, Aged 48 years, Occupation Business, R/o Near Basweshwar Chouk, Ahemadpur, Taluka Ahemadpur, District Latur. 10. Kashinath s/o Ganpat Gadhave, Aged 40 years, Occupation Business, R/o Saraswati Colony, Ahemadpur, Taluka Ahemadpur, District Latur. 11. Shrikant s/o Vaijanathappa Hamne, Aged 40 years, Occupation Business, R/o Hamne Galli, Ahemadpur, Taluka Ahemadpur, District Latur. 12. Mahadev s/o Govindrao Shetkar, Aged 40 years, 3 Occupation Business, R/o Mirkale Galli, Ahemadpur, Taluka Ahemadpur, District Latur. Mr. Mahesh C. Swami, Advocate for the applicant Mr. S.N. Kendre, APP for the respondent No.1 / State Mr. K.T. Shirpurkar, Advocate for respondent No.2 CORAM : A.V. NIRGUDE, J. DATED : 9th September, 2010 ORAL JUDGMENT 1. This revision application is filed against the order dated 1st December, 2008, passed by the learned Judicial Magistrate, First Class, Ahemadpur, in Criminal Case No. 70 of 2005, refusing to issue process against the respondent No.2 (original accused No.1) and the respondent No. 3 (original accused No.4). The learned Judge by the impugned order issued process against the respondent No. 7 (original accused No. 2), respondent No. 8 (original accused No.3), respondent No. 9 (original accused No.5), respondent No. 10 (original accused No.6), respondent No.11 (original accused No.7) and respondent No. 12 (original accused No.8). The applicant was the complainant in that case. He lodged the complaint on following assertions : 2. He said that he has his house at Ahemadpur bearing certain municipal number annexing a rough sketch of the location etc of the house. The applicant said that in the courtyard of the house, within his property, there existed a tree. He said that a long standing litigation is pending between him and the respondent No.2 and one Gururaj who are trustees and manager of a public trust by name ‘Veermath”. The property of the Math is also situated adjacent to the house of the applicant. They are disputing the applicant’s ownership of the house, which is described above. It is alleged that on 13th 4 August, 2005, at the instigation of respondent No.2, the other accused, who are well wishers and employees of the Trust, cut down the tree, described above. When they came to cut down the tree, the applicant protested and even reported the matter to the police, but the help did not come, and the other accused not only cut down the tree but even damaged the compound wall of the applicant’s house. Subsequently, the applicant learnt that the respondents No. 2 and 7 had obtained permission to cut down the tree purportedly under the provisions of the Maharashtra Felling of Tree (Regulation) Act, 1964. He realized that the provisions of this Act are not applicable to the urban area. The definition of the term ‘Urban Area’ is also mentioned in Clause (g) of Section 2 of the Act. In view of this, he realized that the permission granted to the Trust to cut down the tree was without authority and non est. He alleged that the respondent No.3, who is accused No.4 in the complaint, who is also Revenue Circle Inspector of the area at the relevant time, made a false panchnama of the tree’s condition. The applicant thus made above mentioned eight persons as accused in the case. 3. After filing of the complaint, the learned Magistrate issued direction for investigation under Section 156 (3) of Code of Criminal Procedure, and the police, after investigation, submitted a report, stating therein that the permission was granted lawfully and that the tree was cut because it was old and dangerous. It is also contended that the respondent No.2, who is accused No.1, was not present when the incident took place at Ahemadpur and had gone to other village for observing silence for one month. In view of this report, the learned Magistrate passed the impugned order refusing to issue process against the respondents No. 2 and 3, who were accused No. 1 and 4. This order is sought to be challenged in this revision. While filing the revision, the applicant added some more persons as respondents, who, at the relevant time were working as 5 Police Sub Inspector, Tahsildar, Sub Divisional Officer and Collector of the local area. It is the contention of the applicant that the learned Magistrate should have realized that there was violation of the provisions of the above mentioned Act and should have sue moto issued process against them. 4. The question before me is, whether there is prima facie case sufficient to issue process against the respondents No. 2 and 3 and the other respondents, who are sought to be added as accused ? The respondent No.2 was not residing at Ahemadpur when the incident took place. He had gone to other village for a period of one month and was observing silence. In view of this, apparently he cannot be connected to the incident that took place on 13th August, 2005. It is the case of the applicant, at his instance and instigation, his Manager, the respondent No.7 / original accused No.2, had obtained permission for felling of the tree. The allegation against the respondent No.2 is rather vague, and, since no overt act is attributed to him and since the application for felling of the tree was not made by him, I am not inclined to disturb the impugned order in relation to the respondent No.2. 5. The impugned order in relation to respondent No.3 is also not assailable. Admittedly, the respondent No.3, being the Circle Inspector, visited the scene of occurrence prior to the issuance of permission for felling of the tree. It is not alleged that he made a false report to the effect that the tree did not stand on the land belonging to the applicant. The report simply stated that the tree is situated near the entrance of the Veermath and had become old and therefore was dangerous. Giving such report did not amount to any offence. 6. It appears that the Sub-Divisional Magistrate (the respondent No.6) had committed an error while issuing the permission for felling of the tree in question. As said above, the provisions of the Act are clearly not applicable to the area where the tree stood. As against 6 this, the Sub Divisional Magistrate has filed his affidavit, in which he stated bluntly that the Maharashtra Felling of Tree (Regulation) Rules, 1967, would apply even to the urban area. This statement is patently incorrect, because it is made as per the advice given to him in ignorance of the provisions of the Act. I think, the learned Sub Divisional Magistrate either is not aware of the provisions of the Act himself or the draftman of his affidavit did not go through them. A copy of the Act is in fact annexed to this application and was supplied to all the respondents. Despite of this, the learned Public Prosecutor, it appears did not peruse the provisions of the Act. I think, the respondent No.6, the Sub-Divisional Magistrate, who ultimately issued the permission, should have owe responsibility of the legality and correctness of such permission. The officers working below him, such as, Circle Inspector, the respondent No.3 or Tahsildar, cannot be blamed for the illegality. However, merely granting erroneous permission for felling of the tree cannot amount to an offence of abetment, and so, he cannot be made an accused in the case. 5. The applicant’s attempt to implead additional parties who were not before the lower Court appears to be mischievous. If at all the applicant wanted to make accusation against any of the public servants, whose names are mentioned in this application, he should have added them as accused. He cannot simply say that on the basis of the complaint, the learned Magistrate could have sue moto taken the cognizance of the offence and issued process against them. This expectation is unreasonable atleast in this case, having regard to the allegations made in the complaint. Thus, the order passed by the learned Magistrate is unassailable and the revisions application would fail. Criminal Revision Application stands dismissed. ( A.V. NIRGUDE, J. ) srm/cra/43/09/9910/ok 7