- (1.) In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.
(2.) Counsel for the petitioner as well as learned Additional Advocate General jointly submits that the proposition in-question is settled in Hasam Khan and Ors. Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.2254/2017, decided on 10.08.2017), judgment whereof reads as follows : "1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred for quashing FIR No.72/2017 registered at Police Station, Bajju, District Bikaner for the offence under Section 41/42 of the Forest Act. 2. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Mohan Ram @ Manaram Vs. State of Rajasthan, reported in 2016(3) Cr.L.R. (Raj.) 1144, wherein the following order had been passed:- "This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with a prayer for quashing the proceedings of Criminal Case No. 1811/2015 pending in the Court of Judicial Magistrate, Balotra, District Barmer (hereinafter referred to as 'the trial court') against the petitioner. In the present case, the trial court vide order dated 19.11.2015 took cognizance against the petitioner for the offences punishable under Sections 41, 42/77 of Rajasthan Forest Act, 1953 (hereinafter referred to as 'the Act of 1953). Learned counsel for the petitioner has argued that the FIR was lodged against the petitioner for the offences punishable under Sections 41 and 42/77 of the Act of 1953 by the Head Constable Sujan Singh of the Police Station Sindhari, District Barmer on 11.10.2015. It is contended that the offence punishable under Sections 41 and 42/77 of the Act of 1953 are non-cognizable offence and as per the provisions of Sub-Section (2) of Section 155 of the Code of Criminal Procedure, no police officer shall investigate into non-cognizable case without order of Magistrate having power to try such case or commit the case for trial. It is argued that the FIR in the present case, could not have been registered because there was no order from the Magistrate having power to try such case or commit the case for trial. It is further argued that the trial court, without taking into consideration the above position of law, has illegally proceeded against the petitioner and has taken cognizance against him for the offences punishable under Sections 41, 42/77 of the Act of 1953 vide order dated 19.11.2015. In support of above contentions, learned counsel for the petitioner has placed reliance upon the judgments of this Court in the case of Pintu Dey Vs. State of Rajasthan and Anr. decided on 9.4.2015 and Pappu Ram Vs. State of Rajasthan reported in 2015 (1) Cr.L.R. (Raj.) 304. Learned Public Prosecutor has opposed the criminal misc. petition and has argued that as per the provisions of Section 64 of the the Act of 1953, any Police Officer has power to arrest any person without warrant against whom a reasonable suspicion exists of his having been involved in any forest offence punishable with imprisonment for one month or up words and, therefore, the police officer is also competent to register and investigate any FIR against any person in which the complaint is made for commission of offences under Sections 41 and 42 of the Act of 1953. However, learned Public Prosecutor has fairly conceded that the punishment provided under Sections 42 and 77 of the Act of 1953 are less than 3 years, therefore, the offences punishable under Sections 42 and 77 of the Act of 1953 are non-cognizable offences. Heard learned counsel for the petitioner and perused the impugned order. Sub-section (2) of section 155 of CrPC reads as under: "(2) No police officer shall investigate a no cognizable case without the order of a Magistrate having power to try such case or commit the case for trial." Part-II of Schedule-I of CrPC reads as under: "II - CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or Non-Cognizable Bailable or Non-Bailable By what Court triable 1 2 3 4 If punishment with death, imprisonment for life, or imprisonment for more than 7 years, Cognizable Non-bailable Court of Session If punishable with imprisonment for 3 years and upwards but not more than 7 years. Cognizable Non-bailable Magistrate of the first class If punishable with imprisonment for less than 3 years or with fine only. As held by the Andhra Pradesh High Court Non-cognizable Bailable Any Magistrate The punishment provided in Sections 42 and 77 of the Act of 1953 is upto 6 months or fine or both and one month or fine or both respectively and, therefore, as per Part II of Schedule-I of Cr.P.C, the said offences are noncognizable offences and as per Sub-Section (2) of Section 155 Cr.P.C, no Police Officer shall investigate a non-cognizable case without an order of Magistrate. Admittedly, the FIR No.152/2015 was lodged at Police Station Sindhari, District Banner against the petitioner without there being any order of Magistrate having power to try such case or commit the case for trial. In view of above discussions, the action of registration of impugned FIR against the petitioner without there being any order of Magistrate having power to try such case or commit the case for trial, is violative of Sub Section (2) of Section 55 of Cr.P.C. and the consequent order of the trial court taking cognizance against the petitioner for the offences punishable under Sections 41 and 42/77 of the Act of 1953 is also bad in the eye of law. Resultantly this criminal misc. petition is allowed. The order of taking cognizance by the learned Judicial Magistrate by order dated 19.11.2015 in Criminal Case No.1811/2015 is quashed. The impugned FIR No.152/2015 of Police Station Sindhari, District Barmer is also quashed. The stay petition also stands dismissed. " 3. In light of the aforequoted precedent law, the present misc. petition is allowed in the same terms and FIR No.72/2017 registered at Police Station, Bajju, District Bikaner is quashed and set aside."
(3.) In light of aforesaid precedent law, the present misc. petition is allowed in the same terms and FIR No.28/2020 registered at Police Station, Nikumbh, District Chittorgarh for the offence under Sections 41 and 42 of Rajasthan Forest Act, 1953 is quashed and set aside with liberty to the respondent-State to file appropriate complaint before the competent court.;