Mahant Ram vs Mahant Ram And Others
2021 Latest Caselaw 5848 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                  ON THE 22nd DAY OF DECEMBER, 2021
                                 BEFORE




                                                           .
               HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





      CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 349 of 2020
BETWEEN:-





1. MAHANT RAM, S/O SH. ROOP LAL,
   RESIDENT OF VILLAGE AND P.O.
   JAKHYOL, TEHSIL BHORANJ, DISTRICT
   HAMIRPUR, H.P.





2. NOMESHWAR DUTT, S/O LATE
   SH.CHANDU RAM, RESIDENT OF
   VILLAGE AND P.O. SHAKRA, TEHSIL
   KARSOG, DISTRICT MANDI, H.P.

3. KHEM CHAND, S/O SH. TULSI RAM,

   RESIDENT OF VILLAGE SANARLI, P.O.
   BHANTAR, TEHSIL KARSOG, DISTRICT
   MANDI, H.P.                                                 ...PETITIONERS

    (BY MS.LALITA VERMA, ADVOCATE.)



    AND




    STATE OF HIMACHAL PRADESH.                                ...RESPONDENT
    (BY SH. RAJU RAM RAHI, DEPUTY ADVOCATE





    GENERAL.)

    Whether approved for reporting? Yes





    Reserved on: 21.10.2021

    Decided on: 22.12.2021

             This petition coming on for pronouncement this day, the
Court delivered the following:
                           JUDGMENT

Petitioners herein have approached this Court for quashing

of FIR No. 69 of 2010, dated 3.5.2010, registered in Police Station

Gohar, District Mandi, H.P., under Section 33 of the Indian Forest Act,

1927; Section 379 read with Sections 34 and 119 of the Indian Penal

Code; and Section 14 of the Prevention of Corruption Act and

consequential proceedings arising out of aforesaid FIR in case No. 334

of 2013, titled State of H.P. Vs. Mahant Ram and others.

2. In present case, on the basis of rukka sent by Sub Inspector

Madan Dhiman, FIR in question was registered, stating therein that

.

during verification in the Wild Life Sanctuary Shikari Devi, 40 Pine trees

were found to have been felled and there were signs of attempt to

vanish the evidence of cutting those trees by burning remains of stem.

Spot was also speaking about removal of timber and it appeared that

these trees would have been felled within a period of two months.

Considering it a case of illicit felling and theft of forest produce, case

was registered under Section 33 of the Indian Forest Act and Section

379 of the Indian Penal Code.

3. During investigation, it was concluded by the Investigating

Agency that petitioners Mahant Ram, the then Deputy Ranger,

Nomeshwar Dutt and Khem Singh, the then Forest Guards had

connived with other criminals for illegal felling, theft and transportation of

forest produce, as it was their duty to protect the forest produce in the

area concerned.

4. Department had also initiated Departmental proceedings by

initiating an enquiry under the CCS (CCA) Rules 1965. In the charge

sheet issued under Rule 14 of CCS (CCA) Rules, following charge were

framed:-

"1. Negligence in performance of Govt. duty that results in loss of Rs.29,03,688/- to the Government exchequer.

2. Connivance with the offenders."

5. On conclusion of Departmental proceedings, Inquiry Officer

has submitted report, stating therein that Charge No. 1 was partly

proved to the extent of dereliction and negligence in performance of

Government duties and Charge No. 2 was not proved due to lack of

documents/ evidence to show connivance with the offenders in the illicit

felling.

.

6. Competent authority taking into consideration the inquiry

report has concluded that the petitioners have been found guilty of

dereliction and negligent in performing Government duties and they

were warned to be more careful in future in discharging their official

duties and responsibilities.

7.

On perusal of record produced by respondent-State, no

statement of any witness is there, alleging the involvement and

conspiracy of petitioners with other accused for illicit felling, theft and

transportation of forest produce. The petitioners have been arrayed as

accused for their responsibility and duties in the area concerned to

protect forest and forest produce. For the same cause Departmental

proceedings were also initiated against them.

8. Petitioners, in Departmental proceedings, have been

exonerated with respect to charges of connivance with the offenders.

They have been found to be negligent in performing their duties, but the

said negligence for want of evidence cannot be termed as criminal

negligence or on account of conspiracy with other co-accused. The

allegations leveled in the charge sheet are that Deputy Ranger, Mahant

Ram and Beat Guards Nomeshwar Dutt and Khem Singh did not patrol

in their area which resulted into commission of offence and, therefore,

they have been arrayed as accused in Criminal Case.

9. It has been contended on behalf of petitioner that the very

foundation, which was basis of lodging FIR and initiating Criminal

Proceedings against the petitioners, has been vanished for their

exoneration by competent authority in Departmental proceedings with

respect to allegation of connivance with the offender and, therefore, in

.

view of law laid down by the Apex Court, petitioners are entitled for

quashing of FIR and Criminal Proceedings initiated against them on the

basis of that.

10. It is an admitted fact that there is no other material available

on record other than the material available in Departmental proceedings

11. to and the evidence in both proceedings is identical.

The issue in reference in present case is no longer res

integra. Constitution Bench of the Supreme Court in its judgment dated

8.9.2020, passed in Criminal Appeal No. 575 of 2020, titled Ashoo

Surendranath Tewari Vs. The Deputy Superintendent of Police, EOW,

CBI & Another, after taking into consideration its earlier pronouncements

in P.S. Rajya Vs. State of Bihar, (1996) 9 SCC 1 and Radheshyam

Kejriwal Vs. State of West Bengal and Another, (2011) 3 SCC 581,

has quashed the Criminal Proceedings against the petitioner therein,

involving the same facts and circumstances.

12. In Radheshyam Kejriwal's case, the Supreme Court, after

referring various judgments, has concluded in paras 38 and 39 as

under:-

"38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

.

(v) Adjudication proceedings by the Enforcement Directorate is

not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of

the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the

nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the

allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying

principle being the higher standard of proof in criminal cases." It finally concluded:

"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well

as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication

proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."

13. In present case also, petitioners have been implicated for

conspiracy and connivance with other criminals. For the same charge,

after taking into consideration the same set of evidence petitioners have

been exonerated in Departmental proceedings where lesser degree of

proof would have sufficient to punish. Whereas, in criminal proceedings

higher degree of assurance is required. The same set of evidence may

not be suffice for that. It appears that petitioners have been arrayed

accused presuming that felling, theft and transportation of forest produce

could not have taken place without their connivance with offenders.

Therefore, in the facts and circumstances of present case and settled

.

exposition of law, I am of the considered opinion that continuation of

proceedings and trial against the petitioners are liable to be quashed.

14. Accordingly, FIR No. 69 of 2010, dated 3.5.2010, registered

in Police Station Gohar, referred supra and consequential Criminal Case

bearing No. 334 of 2013, titled as State of H.P. V. Mahant Ram and

others are quashed qua the petitioners and they are discharged from the

offences referred in the challan/charge sheet submitted by the Police

against them.

15. Needless to say that quashing of FIR and Criminal

Proceedings against petitioners shall not have any bearing on the trial

against other co-accused facing the trial in present case in illicit felling,

theft and transportation of forest produce and trial against them shall be

concluded by the trial Court on its own merit on the basis of evidence

produced before it.

Petition stands allowed and disposed of in aforesaid terms.

                                               (Vivek Singh Thakur),
    nd
22       December, 2021                               Judge.
          (Keshav)