ORDER
V.V.S. Rao, J.
1. The five petitioners are residents of Pittivanipalli village in Chittamuru Mandal of Nellore District.They seek a writ of mandamus to quash Crime No.28 of 1990 on the file of Chittamuru Police Station, on the ground that the FIR does not disclose any ingredients of Section 379 of the Indian Penal Code, 1860 ('IPC' for brevity) and also on the ground that the alleged offence has been compounded under Section 59(1) of the A.P. Forest Act, 1967 ('the Act').
2. The facts in brief may be noticed. All the petitioners are related. They claim to be working with one Pachigarla Ramanaiah, who is dealing in charcoal. One Pulla Reddy, Sarpanch of Mallam village appears to have made a representation to the District Collector, Nellore alleging that one P.Ramanaiah cut trees of Juli Flora (Karra Tumma) in the lands classified as assessed waste poramboke. In that connection, the Mandal Revenue Officer (M.R.O.), Chittamuru, sent up a complaint to the first respondent namely, Station House Officer, P.S., Chittamuru, who registered a case in Crime No.28 of 1990 under Section 379 of the IPC. The petitioners state that P.Ramanaiah who is accused No.1 in Crime No.28 of 1990 obtained licence for felling trees in the patta land and converting the same into charcoal. It is alleged that out of 1250 bags of charcoal obtained by burning the Juli Flora trees, 45 bags of charcoal was derived by felling trees in Sy.No.41 belonging to the Government.The Forest Range Officer referred the matter to the M.R.O., Chittamuru who sent a report to the effect that the said Ramanaiah cut the trees in Sy.No.41 by mistake as the land comprised in Sy.No.41 is adjacent to the patta land owned by him. The M.R.O. also recommended for compounding the offence in respect of 45 bags of charcoal. Accordingly, the second respondent, namely, the Divisional Forest Officer, Nellore, compounded the offence by levying compounding fee of Rs.8,325/-. The amount was paid and the charcoal bags were released to Ramanaiah. The petitioners also filed an application being Criminal Petition No.1792 of 1990 before this Court under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') for quashing Crime No.28 of 1990 and the same was dismissed.
3. The first respondent filed a counter affidavit opposing the writ petition. It is stated that the first respondent is not aware of the proceedings initiated by the Forest officials for compounding the forest offence. However, the investigation in Crime No.28 of 1990 has been completed, which revealed that the petitioners committed theft by felling down trees in the Government land for conversion into charcoal without obtaining prior permission of the competent authority. It is also stated that Criminal Petition No.1792 of 1990 was dismissed by this Court. The writ petition is also opposed on the ground that it is not maintainable.
4. Mr. Bharath, learned counsel representing Mr. C.V. Nagarjuna Reddy, learned counsel for the petitioners, raised three contentions. Firstly, he would submit that the FIR in Crime No.28 of 1990 does not disclose commission of any offence under Section 379 of the IPC. Secondly, he would submit that the second respondent has compounded the offence under Section 59(1) of the Act and, therefore, in accordance with Section 59(2) of the Act, the petitioners stand exonerated of all the contraventions and offences. Thirdly, he would submit that the criminal petition was dismissed as premature and, therefore, it is not a bar to seek appropriate relief from this Court under Article 226 of the Constitution of India. He placed reliance on the judgment of the Supreme Court in State of Haryana v. Bhajanlal1. These contentions are refuted by the learned Govt. Pleader for Forests, Sri Jayaprakash Babu.
5. The submission that complaint lacks the ingredients of offence under Section 379 of the IPC cannot be countenanced. A reading of the FIR belies this submission. It is not a case where the ingredients of the offence of theft are totally absent. In a nutshell, the allegations made in the FIR are that the petitioners without obtaining prior permission illegally felled the trees in the Government land, carried them to their patta land and converted into charcoal. When there is an allegation of taking property out of the possession of any person without that person's consent, an offence of theft is made out as per the definition of theft in Section 378 of the IPC. This ingredient is amply present in the FIR. The first submission is therefore false.Here it is appropriate to refer to some of the instances of cases where a crime can be quashed by the High Court in exercise of its powers under Section 482 Cr.P.C. and in appropriate cases also under Article 226 of the Constitution of India.
6. In State of Haryana v. Bhajan Lal (supra), the apex Court noticed certain cases which tend to result in miscarriage of justice or abuse of process of the Court in criminal justice administration system. These are -
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegation in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.
3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
7. Strong reliance is placed by the learned counsel for the petitioners on the instances 1 to 3 above in support of the contention that the FIR or the complaint does not prima facie constitute any offence against the accused and/or that the FIR does not disclose commission of any offence.
8. Section 20 of the Act deals with the acts prohibited in the reserve forest and penalties for trespass or damage in such forest. The said provision, relevant for the purpose, reads as under.
20. Penalties for trespass or damage in reserve forest and acts prohibited in such forest:-
(1) Any person who -
(c) in a reserved forest -
(iii) causes any damage, either wilfully or negligently in felling or cutting any trees or dragging any timber;....................
(d) (ii) ..................be punishable with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both.
9. Prima facie, the FIR discloses that allegedly the petitioners felled the trees in the Government land, carried the property to their patta land and converted the Juli Flora trees into charcoal without obtaining any permission from the Forest authorities or the Revenue authorities. Therefore, it is futile to contend that no offence is made out in the FIR.
10. Insofar as the second contention that petitioners stand exonerated of all the contraventions and offences as the second respondent has compounded the offence under Section 59(1) of the Act is concerned, in my considered opinion, the same though on the face of it appears to be formidable, a closer scrutiny would disclose the fallacy of the contention.
Section 59 of the Act deals with compounding of forest offences, which reads as under.
59. Power to compound offences:-
(1) Any forest officer specially empowered in this behalf by the Government may accept a compensation from any person who committed or in respect of whom it can be reasonably inferred that he has committed any forest offence, other than an offence under Section 52 or Section 55 -
(i) a sum of money not exceeding fifty rupees where such offence is of a trivial nature;
(ii) a sum of money which shall not in any case be less than the value of the forest produce, or more than four times such value as estimated by such forest officer, in addition to the value of the forest produce, where such offence involves any forest produce which in the opinion of the forest officer, may be released;
(iii) a sum of money which shall not in any case be less than the value of the forest produce or more than four times such value as estimated by such forest officer, where such offence involves forest produce which in the opinion of the forest officer should be retained by the Government.
(2) On receipt of the sum of money referred to in sub-section (1) by such officer, -
(i) the accused person, if in custody, shall be discharged;
(ii) the property seized shall, if it is not to be so retained, be released, and
(iii) no further proceedings shall be taken against such person or property.
11. A reading of the above provision discloses that a forest officer who is empowered by the Government in that behalf can compound an offence other than an offence under Sections 52 and 55 of the Act. An offence of theft under Section 379 of the IPC namely, taking away the property from the custody of a person without that person's consent is altogether different in comparison with the contravention for the offence underSection 20 of the Act.A person who has grown timber or wood on a patta land needs permission of the Forest officials either for felling trees or for converting into charcoal. If such permission is not obtained, such person is liable for an offence underSection 20(1)(a)(b)(c) read with Section 20(d) (ii) of the Act. If a person fells trees on the land belonging to the Government or other person without obtaining permission from the Government, it is an offence under Section 379 of the IPC and not under Section 20 of the Act.
12. The compounding of the offence by the Divisional Forest Officer, in my considered view, is for not obtaining permission for felling the trees and converting them into charcoal. It is no doubt true that an allegation is made in the affidavit accompanying the writ petition that P.Ramanaiah obtained permission from the second respondent for felling the trees and converting them into charcoal, but the same in the absence of any material cannot be accepted. At appropriate place and at appropriate time, it is for the petitioners to prove the allegation that they have indeed obtained permission from the Divisional Forest Officer. Be that as it may, under Section 59 of the Act, the second respondent could not have compounded the offence of theft in exercise of his powers. Under Section 59 of the Act, the power to compound an offence under the Indian Penal Code vests in the jurisdictional Magistrate as per the provisions of Section 320 of the Cr.P.C.Therefore, notwithstanding sub-section (2) of Section 59 of the Act to the effect that the compounding exonerates the offender in all respects, the same cannot be a ground for quashing the crime under Section 379 of the IPC.
13. I am not able to countenance the submission of the learned counsel for the petitioners that the dismissal of the criminal petition No.1792 of 1990 by this Court is not a bar to invoke the jurisdiction under Article 226 of the Constitution. A copy of the order passed by this Court in the criminal petition is not placed before me. Nonetheless, on principles of propriety, when this Court already declined to exercise discretion under Section 482 Cr.P.C. to quash the FIR, it would be improper for this Court to exercise jurisdiction under Article 226 of the Constitution on some other ground and quash the FIR, especially when it is not denied before me that the investigation is complete and charge sheet is about to be filed.
14. In the result, for the above reasons, the writ petition fails and is accordingly dismissed. There shall be no order as to costs.