Jharkhand High CourtPrabhat Kumar Nayak vs State Of Jharkhand on 27 June, 2011IN THE HIGH COURT OF JHARKHAND, RANCHI
                         Cr. Rev. No. 230 of 2010
Prabhat Kumar Nayak      --    -      -      --   --          --Petitioner
                               Versus
The State of Jharkhand-- --    --     --     --   --          --Opposite Party
                               ---
       CORAM         :      THE HON'BLE MR.JUSTICE D.K. SINHA

For the Petitioner             : M/s. Nilesh Kumar & Navin Kumar, Advocates
For the State                  : Mr. Md. Hatim, A.P.P.
                                   -----
Reserved on: 29-03-2011                            Pronounced on: 27 - 06-2011

D.K. Sinha, J.       This criminal revision is directed against the order impugned dated
              16.5.2009, passed by the SDJM, Porahat at Chaibasa in Sonua P.S.
              Case No.13/94, corresponding to G.R. No.149/94, by which cognizance
              was taken for the alleged offence underSections 379,411,465,467,468and120B, Indian Penal Code against the petitioner and others. Now the
              case is pending before Sri A. Kumar, Judicial Magistrate, 1 st Class,
              Porahat at Chaibasa.2.     Prosecution story in short was that the officer-in-charge of
              Sonua police station recorded self-statement on 14.5.1994 near Sonua
              Primary Health Centre that on secret information regarding a truck loaded
              with Kendu leaves was standing near Sonua Durga Sthan, Forest
              Department's Check Post and the forest staff posted at the Check Post
              were about to pass the truck through the Check Post, the informant went
              there and found the truck No. BRS 3552. He then asked the truck to stop,
              pursuant to which driver of the truck Shiv Prakash Mistry and the Forest
              Guard Amar Nath Jha came out and on being asked to show transit
              papers with regard to transportation of Kendu leaves, the driver produced
              the papers wherein some columns were found unfilled. Similarly, the
              number of polas were not mentioned and the number of standard sacks
              were also not mentioned in the transit permit. There were discrepancies in
              the number of sacks mentioned in the permit with that of the number of
              sacks found on the truck. The informant speculated that such type of
              illegality in the documents could not have been done by the junior officials
              of the Forest Department without collusion with the higher officials like
              Ranger and Divisional Manager of the Bihar State Forest Development
              Corporation, as such, the case was instituted against the petitioner and
              others for the various offences under theIndian Penal Code. The driver of
              the truck namely Shiv Prakash Mistry and the Forest Guard namely Amar
              Nath Jha were arrested by the police and the informant himself took up
              the investigation.3.     The short point, which has been raised in the instant criminal
              revision is as to whether on the face of the special law, the criminal
 prosecution of the petitioner under the penal provisions of general law is
maintainable?4.     The learned counsel Mr. Nilesh Kumar submitted that the
petitioner could not be held criminally liable for documental lapses, such
as, non-entry of particulars in the relevant columns of transportation
challan by his subordinate staff of the Forest Department. Role of the
petitioner Forest Range Officer was not particularized in the self-statement
of the informant and similarly he could not be held vicariously liable for the
actions of his subordinate staff. His implication is based on conjectures
and surmises without any legal evidence and that mere suspicion, with
respect to discrepancy between loaded Kendu leaves and the quantity
mentioned in the transit permit, converted into credible conclusion of guilt
and authoritative finding by the informant cannot be sustained under law.5.     Explaining the facts of the case, the learned counsel
submitted that number of polas and number of standard sacks could not
be mentioned in the transit permit during transportation of Kendu leaves
due to non-availability of sacks and also on account of bad weather, the
same was put on the truck loosely against the payment of revenue to the
State exchequer. As a matter of fact, the truck was seized before crossing
the Forest Check Post and thereby, the officer-in-charge of the police
station made wrong statement in the self-statement with ulterior motive
and malicious intention to implicate the personnel of the Forest
Department. Departmental inquiry was held wherein the inquiring officer
did not find any role of the petitioner in the alleged irregularity and it was
held that though transit permit was signed by the petitioner but it was filled
in by his junior in the special circumstances for speedy conclusion of the
work of the transportation of Kendu leaves merely in good faith and
without ill motive (Annexure-3).6.     Mr. Nilesh Kumar, the learned counsel, further submitted
that if at all any offence was made out, it could be under theBihar Kendu
Leaves (Control of Trade) Act, 1973and all the offences were bailable in
nature and therefore, the prosecution of the petitioner in general law i.e.
under the penal provisions ofIndian Penal Codewas not at all
maintainable; hence, liable to be set aside. Neither the allegation of theft
nor forgery being committed in the transit paper could be found except the
unfilled columns and therefore, no such offence as alleged. In the instant
case, the informant became the Judge of his own cause as he took up the
charge of investigation intentionally and maliciously, who was interested in
securing evidence against all the named accused persons by all means
and in that manner, he recorded the statement of thirteen witnesses
including the confessional statement of the driver Shiv Prakash Mistry. He
did never care to produce the driver before the Magistrate for recording his
               statement underSection 164Code of Criminal Procedure. It would be
              relevant to mention that this Court in Cr.W.J.C. No.269 of 1994 by interim
              order had directed for replacement of the I.O. of this case and accordingly,
              he was replaced, but the statement of thirteen witnesses recorded by the
              informant-cum-I.O. remained as it were and the charge-sheet was
              submitted on the basis of the statements of those witnesses.7.      The learned counsel lastly submitted that against the
              cognizance order dated 16.5.2009 the co-accused Raj Kapoor Sinha, the
              then Divisional Manager had preferred Cr. Rev. No.577 of 2009 and this
              Court by the order dated 29.1.2010 allowed the criminal revision observing
              that further continuation of the criminal proceeding would tantamount to
              abuse of the process of Court and thereby, exonerated the Divisional
              Manager, Raj Kapoor Sinha from his criminal liability in the instant case
              relying upon and adopting the principals laid down in the 'Pepsi Food
              Case'.8.       Heard    Mr. Hatim, the learned A.P.P. on behalf of the State-
              Opposite Party.9.       Having regard to the facts and circumstances of the case, there
              appears substance in the argument that the informant of the case took up
              the investigation himself by becoming the Judge of his own cause and
              violated the principles of natural justice, however, with the intervention of
              Ranchi Bench of Patna High Court, the Investigating Officer was replaced
              and it took fifteen years in conclusion of the investigation and submission
              of charge-sheet without there being explanation of such inordinate delay.
              In the departmental proceeding neither forgery nor cheating nor theft of
              Kendu leaves was established and the criminal law was set in motion,
              perhaps, for wreaking personal vengeance. I further find substance in the
              argument that theBihar Kendu Leaves (Control of Trade) Act, 1973, which
              was adopted by the State of Jharkhand, was maintainable in the instant
              case on its face value and therefore, the criminal proceedings of the
              petitioner Prabhat Kumar Nayak underIndian Penal Codecannot be
              sustained under law. Otherwise also, he cannot be held vicariously liable
              for the wrong or commission/omission committed by his subordinate staff.
              Accordingly, this criminal revision is allowed and the criminal prosecution
              of the petitioner Prabhat Kumar Nayak, in the facts and circumstances, is
              quashed in Sonua P.S. Case No.13/94. I further deprecate the protracted
              investigation of the case which continued for long 15 years without
              explanation.(D.K. Sinha, J.)
S.B./A.F.R.