B.P.RAY, J. CRLMC. NO.176 OF 2007 (Decided on 16.7.2010) SUN GRANITE EXPORTS LTD. & ANR. …… …. Petitioners. .Vrs. STATE OF ORISSA & ANR. ………Opp.Parties. (A) ORISSA FOREST ACT, 1972 (ACT NO.14 OF 1972) – Ss.34 & 37. (B)CRIMINAL PROCEDURE CODE, 1973 (ACT NO. 2 OF 1974) – S.473. For Petitioners - M/s. Milan Kanungo, S.Satpathy, S.Nanda, S.Das & D.Pradhan. For Opp.Parties - M/s. C.A.Rao, S.K.Behera, S.K.Purohit, P.K.Sahoo G.B.Panda. B.P.RAY, J. In this application u/s. 482 of the Code of Criminal Procedure the petitioner challenge the legality of the order dated 23.06.2004 passed in 2(b)cc No. 24 of 2004 by learned J.M.F.C., Patrapur, Ganjam taking cognizance of offence u/s. 37 of Orissa Forest Act. 2. Prosecution case in brief is that the petitioner company was granted a lease for granite quarry by the State Government by execution of a lease deed on 20.5.1996 for a period of ten years. During subsistence of the lease, on 10.12.2002 while the petitioners were loading granite stones, one Siba Ram Nanda, Forest Guard seized around 12 truck load of granite stones with a truck bearing Registration No. OR-02-C-4302 from the petitioner no.2 and submitted a Prosecution Report on 23.6.2004 and the learned Magistrate took cognizance of the offence u/s.37 of the Orissa forest Act on 23.6.2004 fro violation of the Provisions contained in Section 34 of the Orissa Forest Act. The impugned order has been challenged mainly on the grounds; (a) the lease in question having been executed in favour of the petitioner by the State Government, the Forest Authority has no jurisdiction to initiate penal action against the petitioner-company; (b) there being prohibition order purported to have been issued by the State Government U/ s.34 of the Orissa Forest Act, the initiation of the proceeding U/s.37 of the Act is without authority of law. The alleged forest offence having taken place on 10.12.2002 and the order taking cognizance having passed after lapse of two years without any explanation whatsoever, is barred under Section 468 of the Code. Therefore, the prosecution U/s.37 of the Forest Act is without jurisdiction and is grossly barred by law of limitation. 3. Learned Counsel for the State vehemently urgen that in view of the prohibition contained in Section 2 of the Forest (Conservation) Act, 1980, the operation of quarry by the petitioners without prior approval of the Central Government is unauthorized. Therefore, the petitioners are liable to be prosecuted U/s.37 of the Orissa Forest Act. 4. Admittedly the lease was granted by the State Government in favour of the petitioners for a period of 10 years and during subsistence of the said lease, the aforementioned forest offence report has been submitted by the Forest Department. There is serious dispute as to whether the land in question is under the protected reserved forest area of the same is under the Revenue Department recorded as forest land. Be that as it may, if the land has been recorded as forest land within the mischief of Section 2 of the Forest (Conservation) Act, 1980, it will not come to into play. For the limited purpose of deciding as to whether the order of cognizance for offence u/s.37 of the Orissa Forest Act is valid or not, I do not want to delve into the said aspect, as in my considered view, if the land in question is recorded as forest land whether it is within the protected forest area or not, there must be prior approval of the central Government in terms of Section 2 of the Forest (Conservation) Act, 1980. In order to appreciate the submission made by the learned counsel for the parties, it is relevant to refer to Section 37(1)© of the Orissa Forest Act which reads as follows; “37. Penalties for acts in contravention of notification under sec.34 or of Rules under Sec.36.-(1) Any person who- (a)…………… (b)…………… ( c) Contrary to any prohibition under Sec.34 breaks up or clears for cultivation or any other purpose any land in any protected forest or cultivate or attempts to cultivate any such land in any manner.” Apparently in order to have operation of Sec. 37(1) (c ) there has to be prohibition in terms of Sec.34 of the Act. The said provision deals with powers to issue notification reserving trees, etc. It is also apparent that Sec.37(1) ( c) relates only to protected forest. What is prohibited in terms of Sec. 37(1) ( c) is breaking up or clearing for cultivation or any other purpose any land in any protected forest of cultivating or attempting to cultivate any such land in any manner. Sec. 33 deals with protected forest. The said provision prescribes that by notification the State Government may declare the provisions of Chapter IV to be applicable to any land which is not included in a reserved forest, but which is the property of Government or over which the Government have proprietary rights. Therefore, in order to be declared as protected forest the land has to be one which is not included in a reserved forest. Therefore, in the case of unreserved forest a notification declare the provisions of Chapter IV applicable has to be issued in terms of Sec. 34 of the Act. 5. Section 37 of the Orissa Forest Act provides maximum punishment for a period of one year or with fine. Section 468, Cr.P.C. provides that no court shall taken cognizance of an offence punishable for a maximum period of 1 year after expiry of one year. Section 473, Cr.P.C. provides that if an application for condonation of delay is filed explaining the delay, the court may condone the delay in filing the prosection report and thereafter may take cognizance of the offence and issue process. In the instant case the alleged forest offence was detected on 10.12.2002 and the P.R. was prepared by the Forester on 30.6.2003, the Range Officer approved and sent the same to the D.F.O. on 5.7.2003 and the D.F.O. sanctioned the P.R. and sent it to the Court on 31.3.2004 and the same was filed in Court on 23.6.2004. On the same day learned Magistrate took cognizance of the offence by accepting the application for condonation of delay. Therefore, the question arises for consideration by the Court is; (a) whether the prosecution report submitted u/s.37 of the Orissa Forest act is valid; (b) whether the 2 learned Magistrate had exercised its jurisdiction u/s. 473, Cr. P.C. by condoning the delay in filing the prosecution report after the statutory period. 6. A conjoint reading of the provisions of Sec. 34 and Sec. 37 (1) of the Orissa Forest Act Makes it clear that the land in respect of which the notification is to be issued was a protected reserved forest. Admittedly, no notification was brought on record to show any declaration that the land where the alleged act was committed was a protected one. 7. Indisputably there is delay of more than six months in filing the prosecution report. The Hon’ble Apex Court in the case of Sate of Himachal Pradesh V. Tara Dutt and another reported in AIR 2000 SC 297 has held that: “ Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore, in respect of the offences for which a period of limitation has been provided in S. 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognized principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence. xx xx xx We have already indicated in the earlier part of this judgment as to the true import and construction of Section 473 of the Code of Criminal Procedure. The said provision being an enabling provision, whenever a Magistrate invokes the said provision and condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay.” 8. I have carefully gone through the records and found that even though there was an application for condonation of delay no explanation whatsoever has been offered by the prosecution for condonation of delay except vaguely stating that there has been delay in obtaining sanction and in preparation of papers. No plausible explanation whatsoever has been offered so as to invoke the jurisdiction of the Magistrate for exercising his discretion for condonation of delay u/s. 473 Cr.P.C. Indisputably no notification of the Forest Department u/s. 34 of the Act was brought on record so as to attract the mischief of Section 37 of the Act. 3 9. For the reasons aforesaid, the order of cognizance is indefensible and is hereby quashed. Accordingly, the CRLMC is allowed. Application allowed. 4