AVINASH PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) ON 10.8.2004 when the Forest Guard found that illegal Mining of Iron Ore has been done in the forest area, bearing plot No. 893 under Thana No. 747, leased out to M/s. TISCO situated at Noamundi by digging pits without taking permission of the Forest Department, a prosecution report was submitted alleging therein that said illegal mining has been done by M/s. TISCO, for which its Managing Director, Abinash Prasad is responsible. On enquiry, when the allegations were found to be true, the offence report was filed before the Court of learned Chief Judicial Magistrate, Chaibasa, who took cognizance of the offence under Section 33 of the Indian Forest Act against the petitioner on 8.4.2005. Accordingly, summons issued by the Court was received by him. Thereafter an application was filed under Section 205 of the Code of Criminal Procedure on 23.6.2005, upon which an order was passed on 12.9.2005 whereby personal appearance was dispensed with on the condition that the petitioner would appear physically at the stage of explanation of the accusation and at the stage of recording statement under Section 313 of the Code of Criminal Procedure. On the next date i.e. on 29.9.2005 fixed in the case an application was filed on behalf of the petitioner under Section 251 praying therein that substance of accusation be explained to accused through his Lawyer. The case was adjourned to some other date for appearance of the petitioner. However, in the meantime, a writ application bearing W.P.(Cr.) No. 282 of 2005 was filed in this Court by the petitioner challenging the order taking cognizance on amongst other on the ground that the petitioner has never committed any offence under Section 33 of the Indian Forest Act, rather it was the other person who committed mischief by extracting iron ore from the leasehold area of the petitioner and for that, the petitioner had even lodged a case against the named accused. However, the said writ application was allowed to be withdrawn by this Court, vide its order dated 16.5.2006 giving liberty the petitioner to raise all the points at the time of framing of charge. After very long gap, an application was filed for discharge before the Court below taking the same ground that it was not the petitioner, who did commit offence as alleged, rather one Mangal Singh Soren has committed all the mischief against whom, the petitioner had lodged information. The said application was dismissed by the learned Chief Judicial Magistrate, Chaibasa, vide its order dated 4.3.2009 holding therein that whatever point has been taken for discharge, that can be looked into only during trial and that there has been no provision under the Code to discharge an accused in a summons case triable by the Magistrate and as such, petition filed for discharge was held to be not maintainable. Arun Choudhury Versus State Of Jharkhand

(2.) BEING aggrieved with that order, the petitioner has filed the instant writ application.

(3.) LEARNED counsel further submits that as per the case of the prosecution disclosed in the offence report and even in the prosecution report that illegal mining was done by the Company, namely, M/s. TISCO petitioner being Managing Director in that event, in absence of any allegation, cannot be held vicariously liable, specially when the statute, i.e, Indian Forest Act is silent over fixing the vicarious liability upon the Managing Director and as such, prosecution is bad, in view of the decision of the Hon'ble Supreme Court rendered in a case of Maksud Saiyed V/s. State of Gujarat and others, 2008 (1) East Cr C 226 (SC): (2008) 5 SCC 668. Thus, entire prosecution is fit to be quashed.