STATE Vs. BAISAKHI BEWA

JUDGEMENT

(1.) THE State is the petitioner seeking quashing of the order passed by the learned SDJM, Keonjhar, refusing to take cognizance Under Section 45, 46 and 83 of the Orissa Forest Act (hereinafter referred to as 'the Act') against the opposite party and the order passed in revision by the learned Sessions Judge, Keonjhar upholding the order passed by the learned SDJM The brief fact is that the premises of the opposite party was raided on 6 -8 -1987. The raid yielded 77 hand -sawn Sal logs for which she was not able to account. The prosecution report was submitted by the Forester alleging commission of offences Under Section 45, 46 and 83 of the Act. The learned SDJM refused to take cognizance being of the view that there is nothing to show that a person keeping forest produce in his house is liable to be prosecuted under the Orissa Timber and Other Forest Produce Transit Rules (hereinafter referred to as 'the T.T. Rules')and that there is also no provision in the Act or the Rules framed thereunder to show that the possession of forest produce in the house is an offence. He accordingly dismissed the complaint Under Section 203, Cr PC. In revision, the learned Sessions Judge held, explaining an earlier decision of this Court reported in AIR 1954 Orissa 16 (Sidheswar Panda v. State), held that there was absence of prima facie evidence as to the illegal removal of the seized timber from any reserved forest area and as such the presumption Under Section 73 -A of the Act was not applicable and that the rule as contemplated Under Section 73 - A of the Act at best raise a presumption that in the absence of evidence it shall be presumed that they are Government property but that is only a rule of evidence. He accordingly agreed with the learned SDJM and dismissed the revision.

(2.) THE learned Additional Government Advocate fairly brings to my notice two later decisions of this Court 1989 (II) OLR 124 (M/s. Dayal Trading Company represented by its proprietor Giridharilal Kedai v. State of Orissa and Ors.) and 73 (1992) CL.T 52 (Gayadhar Ojha v. State of Orissa) which have bearing on the ques - tion. In the first case, the decision was handed down that Section 45 of the Act is by itself not a penal provision and that if a party commits an offence under the T.T. Rules, it cannot be punished Under Section 45 of the Act. It was pointed out that an offence committed under the T.T. Rules is punishable under Rule 21 thereof and since in that case the offence if at all would have been under the Orissa Forest Saw Pits and Saw Mills (Control) Rules (for short, 'Saw Pits Rules') and not Under Section 45 of the Act or under Rule 21 of the T.T. Rules, cognizance of offence under Sec.45 or Rule 21 was vitiated and hence the order taking cognizance was quashed. In the second case, the Court held that Sec.46 of the Act is neither a defining section nor a penal provision and that since the trial Court has not taken cognizance of the offences alleged to have been committed under the T.T. Rules or the Saw Pits Rules, the entire proceeding had been vitiated on account of gross irregularity.

(3.) BUT the case raises a question of different dimension. A Magistrate before whom the complaint is brought is to take cognizance of the offence committed. There is no hard and fast rule that the offence committed must be the same as has been alleged in the com - plaint. On the contrary, it is the duty of a Magistrate if he finds an offence to have been otherwise committed to take cognizance of it. That is the import of Section 190, CrPC. Hence even if the prosecution report was submitted Under Section 45, 46 and 83 of the Act and the opposite party was not found to have committed offences under those provisions, yet the learned Magistrate was under a duty to examine as to whether any other provision of the Act or the Rules had been contravened and an offence had been committed of which cognizance could have been taken. Section 73 of the Ac raises a presumption that when in any procee - dings taken under the Act or in consequence of anything done under the Act, a question arises as to whether any forest produce is the property of Government, such produce shall be presumed to be the property of Government until the contrary is proved. Undoubtedly, the timber dis - covered by raid are forest produce. Under the T.T. Rules for removal of forest produce from the coupe or the forest a permit is necessary and under Rule 12 thereof the person who has removed timber on the basis of a permit is required to retain the permit as long as the forest produce remains in his possession and to produce it for inspection at any time before the forest produce is disposed of. The presumption being so raised the fact of removal of forest produce validly would be upon a person who claims to have so removed it, it being a fact within his own special knowledge. The learned SDJM was hence to consider whether any penalty Under Section 83 was invited or any offence was committed either under the T.T. Rules or otherwise or even Under Section 379, IPC and only if satisfied that no such offence was committed, could have dis - missed the complaint. For such reasons, the impugned orders are not sustainable and are liable to be set aside.