Rajasthan High Court - Jodhpur

Gulam Hussain vs State Of Rajasthan on 3 February, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 757/2021

Gulam Hussain S/o Shri Sher Mohammad, Aged About 39 Years,
Sadalkhera, District Chittorgarh.
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent

For Petitioner(s) : Mr. Pradeep Shah &
Mr. Sabir Khan
For Respondent(s) : Mr. Farzand Ali, GA-cum-AAG with
Mr. Laxman Solanki, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

03/02/2021

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 & 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)

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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 & 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 upwords 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

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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
noncognizable 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 Bailable or Non- By what Court
Non-Cognizable Bailable triable

1 2 3 4

If punishment Cognizable Non-bailable Court of Session
with death,
imprisonment for
life, or
imprisonment for
more than 7 years,

If punishable with Cognizable Non-bailable Magistrate of the
imprisonment for first class
3 years and
upwards but not
more than 7 years.

If punishable with Non-cognizable Bailable Any Magistrate
imprisonment for
less than 3 years
or with fine only.
As held by the
Andhra Pradesh
High Court

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 Barmer against the petitioner without
there being any order of Magistrate having power to try such case

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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.29/2020 registered at

Police Station, Nikumbh, District Chittorgarh for the offence

under Sections 41 & 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.

(DR.PUSHPENDRA SINGH BHATI),J.

238-Sanjay/-