IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 917 OF 2006 Ganesh Dutt and another ….……Applicants. Versus State of Uttarakhand and another ……...Respondents. Present: Mr. Vinod Sharma, Advocate for the applicants. Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent no. 1. Date of Decision : 19.8.2010 Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Vinod Sharma, Advocate for the applicants and Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent no.1. 2. The applicants have filed the present Criminal Misc. Application under Section 482 of the Cr.P.C. for setting aside the proceedings in Criminal Case No. 818 of 1997 State Vs. Harish Chandra and others pending before the Chief Judicial Magistrate, Nainital. 3. Since it is the second round of litigation, and the applicants heavily relied upon an earlier decision of this Court, filed in his petition therefore when this application was filed, the learned Single Judge of this Court (Hon’ble Mr. Justice Rajesh Tandon) vide order dated 21.11.2006 referred the matter before the same learned Single Judge (Hon’ble Mr. Justice J.C.S. Rawat), who had earlier allowed the application of the applicants. Order dated 21.11.2006 reads as under: “Heard. Order dated 24.3.06 shows that charge sheet as well as summoning order has been quashed. Applicants have filed the present petition under Sec 482- Cr.P.C. for quashing the subsequent order. Since the earlier order has been passed by Hon. Mr. Justice J.C.S. Rawat, put up before his Lordship on 22.11.2006. “ 4. When the matter came up before the learned Single Judge (Hon’ble Mr. Justice J.C.S. Rawat), the proceedings were stayed by the learned Single Judge vide his order dated 22.11.2006. Order dated 22.11.2006 reads as under: 2 “Heard Sri Vinod Sharma, learned counsel for the applicants. Admit. Learned A.G.A. accepted notice on behalf of the respondents who prays for and is granted three weeks’ time to file counter affidavit. List thereafter. Till the next date of listing further proceedings in Criminal Case No. 818 of 1997, State Vs. Harish Chandra and others in pursuance of order dated 25.04.2006 pending before the Chief Judicial Magistrate, Nainital shall remain stayed.” 5. Thereafter, the matter has now come up for hearing. 6. Brief facts of the case are that two cases were filed against the applicants. One case was a complaint case registered as Complaint Case No. 1180 of 1996, which was under Sections 4/14 U.P. Resin and Other Forest Produce (Regulation of Trade) Act, 1976 read with Sections 26 & 41 of Forest Act and Sections 322, 353 & 379 of I.P.C. The second case was registered against the applicant as Case Crime No. 137 of 1996 under Section 26 of the Forest Act, 4/14 of U.P. Resin and Other Forest Produce (Regulation of Trade) Act, 1976 and Sections 379/411, 467, 468, 471 & 420 I.P.C. When the charge sheet was submitted in both the cases, the Chief Judicial Magistrate taking recourse of Section 210 of Cr.P.C. clubbed both the case together and the two cases were renumbered as Criminal Case No. 818 of 1997, and the matter proceeded against the present applicants. This order was challenged by the applicants earlier by filing an application under Section 482 Cr.P.C., before the High Court of Judicature at Allahabad, which was registered as Criminal Misc. Application No. 699 of 2001 (Old No. 5668/1997), which later stood transferred to this Court under Section 35 of the U.P. Reorganisation Act, 2000. This matter was heard and disposed of by the learned Single Judge of this Court allowing the petition of the present applicants vide order dated 24.3.2006. It is relevant to notice at this juncture that in the said case which was numbered as Criminal Misc. Application No. 699 of 2001, the applicants had asked for quashing of the entire proceedings in Criminal Case No. 818 of 1997 State Vs. Harish Chandra and others. The learned Single Judge was of the view that since under Section 16 of the U.P. Resin and Other Forest Produce (Regulation of Trade) Act, 1976, under which the applicants were 3 charged, no Court can take cognizance of an offence punishable under this Chapter except on a report in writing by any Forest Officer not below the rank of Range Officer or by such other officer empowered by the State and since this was not done in the case, the matter cannot proceed against the applicants. As such, the learned Single Judge allowed the application with the following observations:- “…The Forest Department as provides under Section 16 of the said Act was authorized or competent to file complaint before the competent court in which the Magistrate can take cognizance. The provision of Section 17 clearly provides its overriding effect over the general law. The forest department has not made any averment or allegations against the accused and the police had filed chargesheet in contravention of Section 16 of the said Act. As such the cognizance order as well as the chargesheet are liable to be quashed against the present applicants and the same are quashed. In view of the above observations, the petition is allowed.” 7. Thereafter, when a certified copy of the said order was submitted before the learned Chief Judicial Magistrate, the only recourse open was to him was to bring the proceedings to an end. However, the Court below was of the opinion that there were two cases against the applicants; one complaint case and other a police case and what has been set aside is the complaint case and not the police case. In the considered view of this Court, this reasoning and logic adopted by the Chief Judicial Magistrate is against the records of the present case. Once the police case as well as the complaint case were clubbed together under Section 210 of Cr.P.C. by the Chief Judicial Magistrate, then there was only one case against the applicants i.e. Criminal Case No. 818 of 1997, which was challenged and the petition stood allowed. It was now not open for the Magistrate to make a different interpretation of the order by stating that what has been set aside is only the complaint case and not the police case. This fact has already been taken into consideration by the learned Single Judge while setting aside the proceedings as it has been stated that “The Magistrate during the trial clubbed both the prosecution u/s 210 of the Cr.P.C.” As such, the learned Single Judge was aware that both the complaint case as well as the police case were clubbed together. Therefore what was intended by the learned Single Judge was setting aside of the entire proceedings as they were clubbed together by the 4 earlier order of the learned Chief Judicial Magistrate. As such, this Court is of the considered view that the proceedings being continued by the Chief Judicial Magistrate, Nainital against the applicants amounts to an abuse of process of Court, and therefore, in order to secure the ends of justice, proceedings of Criminal Case No. 818 of 1997 are liable to be set aside and are hereby set aside. 8. The instant C-482 petition is accordingly allowed. No order as to costs. 9. The Registry is directed to send a copy of this order to the Court concerned for necessary compliance. (Sudhanshu Dhulia, J.) 19.8.2010 Rathour