ORDER
D.K. Sinha, J.
1. The present Cr. Revision is directed against the order dated 22.6.2006 passed by Shri Anand Prakash, Judicial Magistrate, 1st Class, Ranchi whereby and whereunder the petition filed under Section 239, Cr PC by the petitioner in Forest Case No. 175/1998 for his discharge was rejected.
2. The brief fact of the case is that the Forester of Tupudana Forest Check Post presented a written complaint before the C.J.M., Ranchi alleging inter alia, that he had intercepted a bus No. B.R. 14P/1111 carrying the planks of Gamhar illegally and on demand by the forest officials, no document was produced in respect of transportation of the planks and for such reason the bus with the planks loaded thereon was seized under Section 52 of Indian Forest. (Bihar Amendment) Act, 1989 and the driver of the bus was directed to park the bus by the side of the check post. While the complainant was preparing the seizure list the driver of the vehicle instead of parking the vehicle, speeded the bus and escaped to which a separate case was instituted at the Hatia Police Station. The offence was instituted under Sections 41 and 42 of the Forest Act. The case registered at the Hatia Police Station together with the seizure list was annexed with the complaint petition giving rise to Hatia Police Station Case No. 133/1998 for the offence under Section 341/323/34, IPC as well as under Section 33/42 of the Indian Forest Act against the driver of the said vehicle as well as against 4/5 unknown persons but after investigation the police submitted final form in absence of the evidence against the accused persons. On the receipt of the final form a notice was issued to the informant but since the informant did not prefer any objection, the final report was accepted by the Court of the C.J.M.. Ranchi on 2.8.2002 in the police case.
3. On the other hand, in the offence report/prosecution report submitted by the complainant the C.J.M. took cognizance of the offence under Section 52 of the Indian Forest Act (Bihar Amendment) Act, 1989 in Forest Case No. 175/98 against the petitioner who is the owner of the vehicle in question though the said provision of Forest Act was relevant only to the seizure of the property, liable to be confiscated and was not a penal provision. The record was transferred for disposal to the Court of Judicial Magistrate, Ranchi.
4. A petition under Section 239, Cr PC was filed by the petitioner for his discharge on the ground that the cognizance of the offence taken under Section 52 of the Indian Forest (Bihar Amendment) Act, 1989 was not a penal section and that the police case instituted at Hatia Police Station was investigated and the complicity of the petitioner was not found therein. It was further stated that no offence was made out against the petitioner except that he was the owner of the bus in question and that no incriminating article much less the alleged planks were recovered from the said bus or from the possession of the petitioner.
5. Learned Counsel further submitted that the learned Judicial Magistrate vide the order impugned dated 22.6.2006 while disposing of the petition under Section 239, Cr PC observed that there was sufficient evidence in the case to charge the accused under Section 42 of the Indian Forest Act, 1927 and as such the discharge petition filed by the accused was rejected with the direction to the petitioner to remain present on 14.7.2006 for framing of charge. Admittedly, learned Counsel further submitted that, admittedly the Judicial Magistrate who rejected the petition under Section 239, Cr PC was not the cognizance taking Court and so he is not empowered to modify the cognizance of the offence under Section 52 of the Indian Forest (Bihar Amendment) Act, 1989 and therefore the amendment as made by the Judicial Magistrate is barred by jurisdiction. Moreover, the police case was thoroughly investigated and after finding no evidence the police in Hatia P.S. Case No. 133/98 for the same and similar set of occurrence had filed the final form exonerating the criminal liability of the petitioner and the same has not been reversed by any competent Court. Literally there is no material at all against the petitioner to proceed against him in criminal trial and hence the petitioner be discharged by setting aside the impugned order.
6. Having regard to the facts and circumstances of the case, I find substance in the argument advanced by the learned Counsel of the petitioner that, Hatia Police after investigation in Hatia P.S. Case No. 133/98 filed the final form exonerating the criminal liability of the petitioner for same set of occurrence. There is substance in the argument that the cognizance of the offence once taken by a competent Court even erroneously under Section 52 of the Indian Forest (Bihar Amendment) Act, 1989 cannot be modified by the trial Magistrate who is not empowered to take cognizance of the offence.
7. In view of the above fact. I find that the order impugned dated 14.9.2001 passed by the A.C.J.M. in Forest Case No. 175/1998 and subsequent modification after four years 9 months by the trial Magistrate by amending the Section of the offence without jurisdiction on 22.6.2006 is unsustainable and therefore, both the orders are set aside.
8. This Cr. Revision is allowed and the petitioner Kishor Kumar Mantri @ Kishor Kumar is discharged under Section 239, Cr PC from his criminal prosecution in Forest Case No. 175/1998 pending in the Court of Shri Anand Prakash, Judicial Magistrate, 1st Class Ranchi or his successor Court. Revision allowed.