IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2135 of 2008 with Cr.Misc. No.2136 of 2008 with Cr.Misc. No.2137 of 2008 JITENDRA PRASAD SINGH @ JITENDRA SINGH Versus 1. STATE OF BIHAR 2. FOREST RANGE OFFICER, GURPA, FOREST AREA, GAYA. (in all cases) -------- For the petitioner :- Mr. Sudhir Singh & Ranjeet Kumar. For opposite party no.2:- Mr. M.N.Jha, Addl.P.P. ----------- 5 28.04.2010. All the three cases are taken up together as they are analogous. Heard learned counsel for the petitioner, no one appears for Opp.party no. 2. However, on request, Mr.M.N.Jha, learned advocate assists this Court. Petitioner has come to this court for quashing order dated 21.6.2006, passed by the Chief Judicial Magistrate, Gaya by which he has taken cognizance against the petitioner under section 33 of the Bihar Forest Act, 1927 and Bihar Amendment Act, 1989 in all the three cases. Petitioner has further prayed for quashing of entire criminal proceeding. Petitioner submits that he was granted Government contract for construction of road as contained in tender notice and subsequent agreement with the Government. The aforesaid construction was being carried out under the prime Minister Gram Sarak Yojana package no. BR 12-08. Three cases have been filed against him by Forest Range Officer as Forest case no. 9/2006,10/2006 and 13/2006. - 2 - In all these three cases, learned Magistrate took cognizance under section 33 of the Forest Act and summoned the petitioner to face trial. Cr.Misc. No. 2135/2008 relates to Complaint case no. 9/06, Cr.Misc.No. 2136/08 relates to Complaint case no. 10/06 and Cr.Misc.No. 2137/08 relates to Complaint case no. 13/08. The petitioner submits that he stands saved under section 79 of I.P.C. At the best, it can be said that he was doing an act under a mistake of fact that the road on which construction was being carried was not a forest land. He submits that the authorities granting the contract are more responsible, as they issued tender for the work and eventually even awarded the same. Mr. Jha submits that in view of section 200 Cr.P.C., a Magistrate can take cognizance on basis of the report made by a Public servant purportedly in discharge of official duty. The prosecution report details that the petitioner was repairing and constructing road in the Forest land and had even stored boulders at the sight. He submits that the defence of petitioner cannot be looked at this stage. Main contention of the petitioner is that he was doing construction work as per the contract awarded to him by the Government under the Prime Minister Gram Sarak Yojana. There is no allegation that he was either doing mining or had removed any Forest produce. According to him, the prosecution did not give the full fact in prosecution report. In my view, the learned Magistrate should have made some - 3 - more enquiries before summoning the petitioner to face trial. As such, the impugned orders dated 21.6.2006 in all the three cases summoning the petitioner to face trial is set aside and the matter is remanded to the learned Magistrate for making further enquiry before issuing summons. In case, the Magistrate finds that there is prima facie material for issuing summons, he would be at liberty to do so. Learned Magistrate would pass appropriate order preferably within three months from the date of receipt/production of a copy of this order. Shashi. (Samarendra Pratap Singh, J.)