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2021 Supreme(Gau) 267
IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
Parthivjyoti Saikia, J.
Narah Messo - Appellant
Versus
State Of Arunachal Pradesh - Respondent
Crl Petn (Criminal Petition) No. 127 of 2018
Decided On : 11-02-2021
T.T. Tara, Advocate
The main legal point established in the judgment is that the magistrate must be specially empowered by the State Government to try offences under the Assam Forest Regulation of 1891, and the court has the power to quash criminal proceedings if it deems it to be an abuse of process of court.
Headnote:
Forest Offence - Quashing of Criminal Proceeding - Assam Forest Regulation, 1891, Section 24(a), 24(b), 25(a), 25(b), 25(d), 25(f)
Fact of the Case:
The petitioners filed an application under Section 482 of the Cr.P.C praying for quashing the CR Case No.49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia. The petitioners were accused of encroaching upon forest land and cutting down valuable trees within forest areas.
Finding of the Court:
The court found that the magistrate taking cognizance of the offences under the Assam Forest Regulation of 1891 did not have the power to do so, as the magistrate must be specially empowered by the State Government to try such offences. The court concluded that allowing the criminal proceeding to continue further would be an abuse of process of court and therefore quashed the criminal proceeding in CR Case No.49/2018.
Issues: The main issue was whether the magistrate had the power to take cognizance of the offences under the Assam Forest Regulation of 1891.
Ratio Decidendi: The court held that under Section 9 of Assam Forest Regulation of 1891, the magistrate must be specially empowered by the State Government to try offences under the regulation. As the magistrate was not empowered to do so, the act of taking cognizance against the petitioners was vitiated under Section 461(k) of the Cr.P.C.
Final Decision: The Criminal Petition was allowed, and the criminal proceeding in CR Case No.49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 was quashed. However, the order did not act as a bar for further police investigation in the matter or for the stand of the respondent No.2/State of Arunachal Pradesh that forest land shall not be allotted for non-forest purposes.
JUDGMENT
Parthivjyoti Saikia, J. - Heard the learned counsel Mr. T. T. Tara, appearing for the petitioner and also heard Ms. L. Hage, learned Additional Public Prosecutor appearing for respondent No.1.
2. The petitioners, namely, 1. Smti. Narah Messo, 2. Smti Taba Yaham Narah @ Narah Yakham, 3. Smti Narah Yanam(Dokhum), 4. Shri Narah Loma, 5. Shri Narah Khilli, 6. Shri Narah Taro, 7. Smti. Narah Yahe, 8. Smti Narah Yapa, 9. Shri Narah Nyokum, 10. Smti Narah Yap, 11. Shri Narah Bhai, 12. Shri Narah Tokur and 13.Shri Narah Hukur have filed this application under Section 482 of the Cr.P.C praying for quashing the CR Case No.49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia.
3. The petitioners 1, 2, 3, 7, 8, 9 and 10 were given Land Possession Certificate in Page No.# 4/6 the year 2012. But the petitioners 4, 5, 6, 11, 12 and 13 were not issued such certificates but since they are the family members of the other petitioners they have been possessing land with them. They have even constructed RCC houses and erected boundary fences.
4. The respondent No.2, filed a complaint case being CR Case No. 49/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 against all the petitioners, alleging that they had encroached upon the forest land. The court below took cognizance of the aforesaid offences and issued summon to them to appear before the court.
5. Thereafter, the respondent No. 2 filed an FIR before police on 18.03.2018, alleging that the present 13 petitioners had illegally cut down valuable trees within forest areas. Thereafter, Kimin P.S. registered the case No. 02/2018 against the present petitioners. Some of the petitioners had to file anticipatory bail application in the High Court for the said case. This Court on 18.04.2018 in Anticipatory Bail Application No. 40(AP)/2018, had observed that "Rightly or wrongly, if one is granted with the LPC then he has the every right to occupy the land and to cultivate over the same".
6. Mr. Tara, learned counsel for the petitioner has referred to Section 210 of the Cr.P.C. According to Mr. Tara, the court below should not have taken cognizance of the offences upon the complaint because at that time a criminal investigation was going on upon the similar facts. Mr. Tara, submits that the magistrate was require to call for a report from the police investigating officer who conducted the investigation into the police case.
7. I have given my anxious consideration to the submissions made by the learned counsel of both the sides.
8. So far as the CR case No.49/2018 is concerned, the court below took cognizance of the offences under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 in the year 2018. At this stage, Section 9 of Assam Forest Regulation of 1891 may be quoted. Section 9 of Assam Forest Regulation, 1891 reads as under:
"Magistrate" means magistrate of the first or second class, when he is specially empowered by the [State] Government to try forest offence."
9. Therefore, it is clear that in order to try offences under the Assam Forest Regulation of 1891, the magistrate must be specially empowered by the State Government.
10. On 02.08.2019, the Government of Arunachal Pradesh issued a notification empowering the Chief Judicial Magistrates and Judicial Magistrate First Class in the State of Arunachal Pradesh to try offences under Assam Forest Regulation, 1891. The Notification is quoted as under:
"NOTIFICATION
The 2nd August, 2019
No. JUD-82/86.- In pursuance of sub-section (9) of Section 3 of Assam Forest Regulation, 1891 (7 of 1891) as applicable in the State of Arunachal Pradesh, the Government of Arunachal Pradesh in consultation with the Gauhati High Court is pleased to empower the Chief Judicial Magistrates and Judicial Magistrate First Class in the State to try offences under Assam Forest Regu
