K.T. Thomas and; R.P. Sethi, JJ.
1. We are disposing of all these criminal appeals by this common judgment as it is convenient and advantageous to deal with all these together. They relate to three different criminal cases charge-sheeted before the Court of Special Judge, Shimla, established for trial of offences under the Prevention of Corruption Act.
2. In each of these three cases, officials of the State Government were arrayed along with private persons for facing charge for offences under Section 120-B of the Indian Penal Code read with Sections 218, 379, 467, 468, 471, 419 of the Indian Penal Code, besides Section 33 of the Indian Forest Act and also Section 5(2) of the Prevention of Corruption Act, 1947. During the pendency of the trial of these cases, some of the accused arrayed have died and the criminal proceedings became abated in respect of those persons. The trial proceeded as against the remaining accused and ultimately the trial Judge convicted the accused in all the three cases principally under Section 120-B of the Indian Penal Code and also for different other counts of offences linked to criminal conspiracy. All of them were sentenced to different terms of imprisonment under different counts. The three cases were disposed of by three separate judgments.
3. The convicted persons filed appeals before the High Court of Himachal Pradesh challenging the conviction and sentence imposed on them. A learned Single Judge of the High Court disposed of all the appeals by three different judgments vis-à-vis the three judgments of the trial court and set aside the conviction and sentence and acquitted all the accused. These appeals have been preferred by the State of Himachal Pradesh by special leave.
4. The common features of all the three cases are the following:
Criminal conspiracies had been hatched by timber merchants and private landowners with the government officials arrayed as accused in each case for the purpose of felling and misappropriating the trees standing on government lands; pursuant to the said criminal conspiracy in each case a large number of trees standing on the government land were cut. Before the timber disappeared beyond the ken of catch, the other government officials acted swiftly and intercepted the contraband articles and thereafter, cases were registered in respect of the above acts and after completing the investigation, challan was filed in each case.
5. It appears that there is no dispute on the fact that the timber seized belonged to the trees felled from different plots of lands alleged by the prosecution. The focus of the prosecution was to show that those trees stood on government lands and that all the accused persons knew very well that those trees could not be cut and removed on the pretext that they stood on private lands. The prosecution attempted to adduce evidence to show that the trees were cut from government lands.
6. The approach made by the learned Single Judge of the High Court in all the three cases was this: the officials/accused in the case, particularly those who belonged to the Revenue Department, made a demarcation for indicating the boundary of the lands separating the private lands from the government lands and, admittedly, the trees were cut only from those sites which were shown as per the said demarcation as private lands. Learned Single Judge proceeded on the reasoning that so long as the said demarcation stood, it was valid under law until the same was set aside by subsequent proceedings and that as there were no such subsequent proceedings to set aside the alleged demarcation conducted by the revenue officials pursuant to which the trees were cut and removed, no offence could be attributed either to those officials or to the private individuals who acted on the strength of such demarcation. For strengthening the said finding, learned Single Judge relied on the decision of the High Court of Himachal Pradesh in Radha Soami Satsang Beas v. State of H.P.1
7. After hearing the arguments of Mr Gopal Subramanium, learned Senior Counsel for the State of Himachal Pradesh and Mr Jaspal Singh, learned Senior Counsel for the officials/accused in some of the cases and also the other learned counsel, we feel that the learned Single Judge of the High Court has misdirected himself into believing that there was a valid demarcation even according to the prosecution case and that, therefore, demarcation will continue to hold good under law until set aside by subsequent proceedings. What we have understood properly from the prosecution case is that the accused officials have made a pretext by showing a fake demarcation pursuant to the conspiracy hatched by themselves with the co-accused with the avowed object of plundering the timber wealth from the government land. Therefore, the High Court should have first focussed on the question whether there were reasonable grounds to believe that all or any two or more of the accused have conspired together to commit the offence of plundering the timber wealth from government lands. This exercise could be made on a conspectus of the entire evidence. This is for the purpose of Section 10 of the Indian Evidence Act. This Court vide Rajiv Gandhi case2 has held that for the court to consider whether there is reasonable ground to believe, as envisaged in Section 10 of the Indian Evidence Act, it is not necessary that the court should be satisfied that the prosecution has proved the case beyond reasonable doubt at that stage. If the High Court found that there was reasonable ground to believe that there was a criminal conspiracy as between all or any two or more of the accused, it could have considered the next question whether the alleged demarcation was made by the accused as a follow-up of the said conspiracy. If the finding is that the alleged demarcation was a follow-up of the criminal conspiracy, it is an idle exercise to say that the said demarcation would remain valid under law until it is set aside in subsequent proceedings.
8. As the High Court in all the judgments had approached the question from a wrong angle, we are constrained to interfere with the order of acquittal passed in all these cases. The appeals filed before the High Court have to be heard and disposed of afresh in the light of the legal position adverted to above.
9. Mr Jaspal Singh, learned Senior Counsel, made an endeavour to show that the prosecution was hit under Section 300 of the Code of Criminal Procedure as there was another prosecution in respect of the same trees. We are not exercising our mind into that question because no such contention had been raised either before the trial court or before the High Court. However, if advised, it is open to the convicted persons to raise that question before the High Court. Mr Gopal Subramanium, learned Senior Counsel, submitted that the said contention has no factual foundation at all. As we refrain from expressing any opinion on the merit of the said contention, we leave that question open to be decided, if raised before the High Court.
10. As we are remanding the matter to the High Court, it may not be understood that we permitted only the above point to be raised by the accused persons. Both sides can raise whatever points already raised or discovered by them afresh during the time of arguments in the High Court.
11. While disposing of the appeal afresh, the High Court shall not, in any way, be influenced or trammelled by any of the observations or findings entered in the impugned judgments.
12. With these observations, we set aside the impugned judgments and the appeals are remitted to the High Court for disposal afresh in accordance with law and in the light of the observations made above.
13. We make it clear that as the accused were on bail during the appeal period, their bail bonds will revive and they will continue to be on bail. It is open to any of the sureties or the accused to request for fresh bond to be executed, if they so want.
14. The appeals are disposed of and all the contempt matters are closed.