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1998 Supreme(Guj) 21

Gujarat High Court
Judgename :K.SREEDHAR RAO, M.S.Shah
AJIT D.PADIVAL - Appellant
Versus
STATE - Respondent
S.C.A. 616 of 1995
Decided On : 01/23/1998

Advocates Appeared: A.D.Padival, AMI YAGNIK, GIRISH PATEL, HARUBHAI MEHTA, K.J.SETHNA, N.D.NANAVATI, P.M.THAKKAR, RAJNI H.MEHTA, S.B.VAKIL, S.N.SHELAT

Headnote:Constitution of India, 1950 - Arts. 142 & 226 and Delhi Special Police Establishment Act, 1946 and Wild Life (Protection) Act, 1972 - Sec. 29 - Judge directing CBI to register cases and prosecute concerned persons - No consent of State Government - Held, it is clearly beyond his jurisdiction.

       Learned Judge directed the CBI to register cases and to prosecute the concerned delinquents. This, according to us, was clearly beyond his jurisdiction. Even the provisions contained in the Delhi Special Police Establishment Act, 1946 have been ignored, in as much as, the learned Judge directed dispensation of the consent of the State Government to exercise jurisdiction by the CBI. High Court cannot ignore the statutory provisions contained therein. In many cases, the Supreme Court, in exercise of the authority under Art. 142 of the Constitution of India, gave such directions to the CBI. Such power cannot be exercised by the High Court under Art. 226 of the Constitution.

       [Para 11]

       There are various materials on the subject matter involved in this group of petitions, including the report of the Court Commissioner, the report dated July 15, 1996 of the expert committee and the CBI report I am of the view that in the first instance it is for the Chief Wildlife Warden of the State to go through all the materials and to take an appropriate decision as to whether this is a fit case for filing a complaint against the concerned officials/persons for breach of the provisions of the Wild Life (Protection) Act, 1972 which is the principal offence in respect of which the CBI has filed the FIR. In the facts and circumstances of the case, the directions issued by the learned Single Judge to the CBI to file FIR and investigate the case were premature and are required to be set aside.

       [Para 18]

K. SREEDHARAN, J.

( 1 ) "the Indian Express" daily, in its issue dated 29th january, 1995, published an article, "where law allows felling of trees". A cutting of that news item was forwarded to this Court by Advocate Shri Ajit D. Padival and requested this Court to treat it as a public interest litigation. A Division Bench of this Court treated it as Special Civil Application No. 616 of 1995 and issued rule to the concerned parties. This Court also called for a report regarding the bamboos and trees existing in the forest by appointing Shri N. V. Anjaria, an advocate of this Court, as Commissioner. Advocate-Commissioner submitted his report dated 13-2-1995. After perusal of the report, this Court permitted respondent- company to remove the bamboos, which have been cut and earmarked for it, on the Company paying the workmen the amounts due to them. Government was directed to file affidavit, indicating the census figures of the area, showing the number of trees as well as clumps of bamboos, which have been there since the beginning of the census work. State was also directed to indicate the steps that are to be taken to prevent unauthorised or illegal cutting of bamboos. Subsequently, by order dated 22-2-1995, State Government was permitted to distribute the cut bamboos among kotwalias and tribals. State Government was directed to ensure the compliance with the terms contained in the licence issued on 15-12-1994 under S. 29 of the Wild life (Protection) Act, 1972 to the Company. While the matter stood like this, another news item came in "gujarat Samachar", dated 3-4-1996 regarding the rash and indiscriminate cutting of various trees. On seeing the same, a learned single Judge initiated suo motu proceedings and registered Special Civil Application No. 2798 of 1996. The operative portion of that order reads :-". . . . . . In view of the aforesaid facts and circumstances of the case, I taking a suo motu notice of the aforesaid news item at Annexure-A, direct the Registrar of this Court to treat this as a writ petition and issue notice making it returnable on 26th April, 1996 at 11- 00 a. m. to (1) Secretary, Forest Department, Gadhinagar; (2) concerned Range Forest officer of the area; and (3) J. K. Paper Mills, who shall file their respective affidavits meeting with the allegations made in the aforesaid news item. I hereby further direct the superintendent of Police, Central Bureau of Investigation, jivabhai Chambers, Ashram road, Ahmedabad to inquire into the matter and find out as to (i) whether the facts narrated in the aforesaid news item are true ? If yes, (ii) then to find out as to why, how and under what circumstances the alleged cutting of trees/sesame, etc. , in "shoolpaneshwar" sanctuary" was permitted, and (iii) at whose instance, that is to say which of the government authority ? and make a true and full disclosure by enclosing the noting, directions - in short whatever Government record available leading to the alleged illegal activity immediately [preferably within 24 hours from the date and time of receipt of this order]. The Superintendent of Police, C. B. I. is hereby further directed to spring into action and inquire/investigate the case either personally or through any of his officers of personal confidence, right from the grass-root level to find out the clues which ultimately prevailed over the officers of the Forest Department permitting cutting of trees in "surpaneshwar sanctuary", going to the logical extent of even prosecuting the concerned delinquents on the basis of material in support of the allegations and submit a report to this Court on 26-4-1996. In case, in the meanwhile, if any prima facie offence is made out, the S. P.- c. B. I. shall also register the offences against all concerned. . . . . "

( 2 ) PURSUANT to the above order, the Central Bureau of Investigation (hereinafter referred to as "c. B. I. "), went into action. They submitted report dated 26-4-1996. Report of the C. B. I. brought out
















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