HARI SHANKAR PRASAD, J. - (1.) THIS application under Article 226 of the Constitution of India has been filed for quashing the entire criminal prosecution including order dated 5.12.2003 passed in Forest Case No. G. 207 of 2003, corresponding to T.R.No. 990/2004, whereby and whereunder learned Judicial Magistrate, 1st Class, Hazaribagh took cognizance under Section 33 of the Indian Forest Act against the petitioners.
(2.) FACTS leading to the filing of this application are that the Forest Case No. G. 207/2003 was instituted against five persons including the petitioners on written information of one Kedar Nath Tiwary, Forest Guard, Niri Forest Block on 13.9.2003, alleging, inter alia, therein that when he alongwith others was on patrolling duty, he found that all accused persons including the petitioners were illegally breaking the stones of forest area and when the accused persons saw them, they fled away and later on Munshi and the Contractor reached there, from those persons informant enquired about the purpose of breaking stones, for which they stated that stonechips shall be used in the construction of road from Keredari High School to Bundu and those persons have also disclosed the names of other persons including the petitioners and informant further stated that he knows the Munshi and others, and hence this case (Annexure 1). The prosecution report has been submitted against five persons including the petitioners on 15.9.2003. It is submitted on behalf of the petitioners that they are innocent and they have been falsely implicated in the case, as the petitioner no.1, Vijay Kumar Srivastava is the Executive Engineer and petitioner no. 2, Rajendra Kumar is the Junior Engineer in Rural Engineering Organization. It was further submitted that allegations of breaking of stones are totally false, as no instrument was seized at the place of occurrence to show that the work of breaking of stones was carried out by the petitioners and the same can also be ascertained from the fact that no seizure list has been prepared. Stone is a very hard rock and it cannot be broken without assistance of any instrument or explosive substance, but in the FIR and prosecution report nothing has been mentioned whether any instrument or explosive substance or crusher has been found at the place of occurrence and this fact itself leads towards the false implication of the petitioners in the instant case with some mala fide and ulterior motive of the informant as well as other officials of the Forest Department. It was also pointed out that details of place of occurrence have not been given and only it has been mentioned that the work of breaking of stones was carried out in Niri Forest. It was also pointed out that the place, where the alleged work is being carried out, is heavily naxalite affected area and the petitioners seriously challenged that the informant and other officials of Forest Department have never visited the said place and so they cannot explain the details of the place and this can also be pointed out that Munshi and contractor were found at the place of occurrence, but it is peculiar that they have not been arrested. It was also pointed out that a tender notice was published by the Rural Engineering Organization for construction of road from Keredari to Bundu starting from 5 KMs to 11.25 KMs and in pursuance of the said NIT, the contractor, Rajendra Singh in the name of M/s Khalsa Brothers has tiled his tender papers and accordingly work has been allotted to him, who is a registered contractor in Government Department in the name of his firm Khalsa Brothers and accordingly petitioner no.1, the Executive Engineer, Rural Engineering Organization entered into the agreement with M/s Khalsa Brothers on 24.7.2003 and after entering into the agreement the contractor Rajendra Singh, Proprietor of M/s Khalsa Brothers, started the work, (Annexure 3). It was further pointed out that after entering into the agreement and as per the work order of the Government, the contractor has started carrying stones from 8.8.2003 onwards from approved government query, Ichak to the work site through different vehicles after obtaining Form -F, i.e. transportation permit of truck for carrying Minor Mineral i.e. stone and also for lifting of stone from registered query and the contractor has lifted and carried about 1,26,800 cubic feet stones through several Form -F for execution of the work, which has been allotted to him by the Government. (Annexure 4 and 4/1). It was further pointed out that Form F, which has been issued to the contractor, has also been verified from the office of the District Mining Officer, Hazaribagh and the Mining Department after verifying all Form -F, and found that all Form -F are genuine and issued by the competent authority and the contractor has lifted and transported the stones in accordance with law, and the same is evident from the letter no. 549 dated 4.3.2004 issued from the office of District Mining Officer, Hazaribagh. It is also submitted that entire bunch of Form F clearly shows that all the stones carried from Government approved query, situated at village Ichak to the work place and as such the question of breaking of stones from the forest does not arise at all. It is also submitted that prosecuting authority has not enquired all the facts and submitted the prosecution report. It was further submitted that the allegations made in the FIR even if they are taken at their face value and accepted in their entirety, do not prima facie constitute an offence or make out a case against the petitioners. It was also pointed out that petitioners are public servants and for prosecution of a public servant, sanction under Section 197 Cr. P.C is required and in the instant case no sanction has been obtained and without there being any sanction under Section 197, the cognizance has been taken in the case. It was pointed out that Section 197 clearly lays down, which is quoted hereinbelow: '' "197. Prosecution of Judges and public servants. '' (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person, who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State of the State Government. Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted...."
(3.) LEARNED counsel for the petitioners submitted that since no sanction has been accorded by the State Government, prosecution of such public servants is without any jurisdiction and as such, the court, while exercising jurisdiction, should have considered this aspect whether sanction is necessary or not. It was pointed out that from the fact stated above, it is quite clear that petitioners are public servants and they are executive engineer and junior engineer respectively and even if they are said to have done this, they have done this due to discharge of their official duty because there is no such allegation that stones were being broken and carried out for personal work of the petitioners, although they were executive engineer and junior engineer respectively and it cannot be expected of them that they will employ themselves in breaking of stones and why they will go to a lonely place and indulge in breaking of stones and, therefore, all these allegations are palpably false and it is nothing but an inter -departmental rivalry and in this rivalry the forest officials have got this case instituted through one of their junior officials on palpably false ground, because when stones were being broken, then implements of breaking stones together with vehicles, by which Executive Engineer and Junior Engineer had gone, must have been mentioned in the written report of the forest guard. It was further submitted that without sanction the petitioners cannot be prosecuted and cognizance order should be quashed.;