SHYAM BEHARI LAL Vs. FOREST DEPARTMENT

JUDGEMENT

(1.) The applicants have come forward with the prayer that the complaint against them under Sections 26 and 28 of the Indian Forest Act, and the order of the Magistrate summoning them as well as the entire criminal proceeding; against them be quashed. It would appear that a complaint under Sections 26 and 28 of the Indian Forest Act has been filed by the Forest guard against the applicants on the allegation that on 18.5.1982 at about 4 P.M- the complainant accompanied by another Forest Guard was taking round of the forest and reached. Reserved Forest Tulsi Compartment ,No.1 and noticed that the accused persons have fallen down two week Sakhu, trees and were cutting them into pieces and noticing the forest guard they filed away that boot of the trees were measured. The cut timber, pieces were brought to the Forest out post with, the memo and hence the accused persons had committed an offence under Section 26 read with Section 28 of the Forest Act and need by punished.

(2.) Two points have been urged. The first point has been urged is that the present complainant was not covered within the provision of Section 195 Criminal Procedure Code and the Magistrate should have complied with the provisions of Sections 200 and 202 Criminal Procedure Code, which was not done. It was also urged that prior to this complaint the Forest Department had falsely implicated some of the accused persons in another case resulting in acquittal. It is also urged that there is/no, allegation in the complaint that the forest is a reserved forest and there is no notification that the Forest comes under the Reserved Forest Act.

(3.) The first point that would arise for consideration is whether it was necessarily to examine the complainant. It was urged that section 195 Criminal Procedure Code, dispensing with the examination of the Presiding Officer of the court filing the complaint is not attracted. So far as that Section is concerned, it deals with the filing of the complaint in respect of certain offences specified therein except on the complaint in writing of the public servant concerned or of some other public servant, and the other sub-section deals with the filing of the complaint by the court in respect of certain offences. The present case does not relate to those offences nor Section 195 Criminal Procedure Code, is appropriate section to be looked into. It is section 200(a) of the proviso which is relevant. The proviso runs that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in discharge of his official duties or a court has made the complaint. Reliance was placed upon the case of Nalini Kumar Dey and another v. State of Tripura.1 In that case a forest guard made a report of commission of an offence under the provisions of Tripura Rice Paddy Embargo Order and the court holding that it was non of the official duties of the forest guard to look after any convention of those Provisions and to detect commission of any offence therein in that context he held that the report made by him cannot be deemed to be a complaint by a public servant acting or purporting to act in the discharge of official duties as such. It was for that consideration that it was further held that examination of the complainant was not exempted. This ruling cannot be applicable to this case and is distinguishable. The other case cited is that of Kalu Munchi ond Others v. State of Assam2. Actually that was a complaint filed by a Magistrate and naturally it had to be considered whether it was covered by Section 195 Criminal Procedure Code, which deals with such complaints. Offences in respect of, which the complaint was filed were Sections 447,427 and 188 Indian Penal Code. As regards offence under Section 188 Indian Penal Code it was held that the order under Section 145. Criminal Procedure Code, prohibiting any person was not duly promulgated. Regarding the other Sections it was held that they are not covered under Section 195 Criminal Procedure Code, as various offences to which Section 195 Criminal Procedure Code relates are enumerated therein and Sections 447 and 427 are not covered in them, so for that consideration it was held that the examination of the complainant was not dispensed with under the provisions of law and he should have been examined.