IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44190 of 2007 KUMAR CHOUDHARY Versus THE STATE OF BIHAR ----------- 2/ 13/01/2009. Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 8.8.2007 rejecting his application for discharge in a case under Sections-33, 41, 42 and 52 of the Indian Forest Act and 5, 9 and 10 of the Bihar Saw Mills Regulation Act, 1990. Learned counsel for the petitioner submits that the petitioner had duly applied for a licence on which no order were being communicated. He pursued the matter before the competent authorities including the Conservator of Forest who by his order dated 6.6.2002 held that the petitioner was entitled to be given his licence for the year-1994 and that his application for renewal thereafter was required to be considered in accordance with law. The order dated 6.6.2002 also further notices a direction for reconstructing original records of the application of the petitioner and for taking appropriate disciplinary action against those involved in the office for misplacement of the same. The order also notices that the petitioner had 2 been depositing licence fee for renewal annually. Learned counsel for the petitioner submits that in pursuance of the same, inspection of the premises of the petitioner was held on 18.7.2002 when the present F.I.R. came to be lodged on 7.10.2002 alleging operation of the saw mill without a valid licence. Learned counsel submits that the F.I.R. was the outcome of the ire of the informant against the order dated 6.6.2002. The opposite parties themselves kept the renewal application pending despite orders for nearly three months without passing any orders thereupon and turning the same into an opportunity to prosecute him. The petitioner came to this Court in C.W.J.C. No.12271/03 aggrieved by the non-grant of the licence when this Court on 8.8.2005 directed that the renewed licence be issued to the petitioner as quickly as possible in terms of the order dated 6.6.2002 not later than six weeks from the date of receipt/production of a copy of the order. L.P.A. No.1286/05 preferred by the State of Bihar against the same came to be dismissed on 5.5.2008. The Division Bench held that the petitioner had been depositing the licence fee. The non-grant of the licence to him was obviously the subject of the theft or mischief in the 3 office of the respondents. The petitioner cannot be allowed to suffer for such mischief. Declining to interfere with the order of the Single Judge costs of Rs.10,000/- were also imposed against the State of Bihar. Based on the aforesaid discussion, this Court has no hesitation in holding that the respondents are essentially seeking to penalize and find fault with the petitioner for essentially what were there own lapses as also found by the Single Judge and the Division Bench of this Court. In that view of the matter, the prosecution of the petitioner in G.O. No.438/02, corresponding to T.R. No.837/02 pending before the Judicial Magistrate, 1st Class, Madhubani is unsustainable and is clearly an abuse of the process of the court by the opposite parties. The reasoning given by the court below while rejecting the application for discharge that since the petitioner had not questioned the order of cognizance, the application for discharge was misconceived, is not tenable in law at all. Challenge to an order of cognizance and grounds for an application for discharge for lack of sufficiency of evidence are two separate matters. 4 The application stands allowed. This order shall not be construed as a licence to the petitioner to commence operation of his saw mill. Any operation of the saw mill by the petitioner can only be after he obtains a valid and legal licence for the same from the competent authorities in accordance with law. KC ( Navin Sinha, J.)