Capt. (Retd.) Sukhwinder Singh Brar vs Punjab State

MANISHA BATRA, J. (Oral)

The present petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint bearing COMA No.62 of 2017 dated 26.05.2017, pending before the learned Judicial Magistrate First Class, Kharar, titled as Punjab State through Divisional Forest Officer, SAS Nagar v. Capt. (Retd.) Sukhwinder Singh Brar, filed under Sections 4, 5 and 19 of the Punjab Land Preservation Act, 1900 (for short ‘PLPA’), along with the provisions of the Indian Forest Act, 1927, Section 2 read with Section 3-A of the Forest (Conservation) Act, 1980, the summoning order dated 15.09.2018 and all the subsequent proceedings having emanated therefrom.

Brief facts of the case relevant for the purpose of disposal of this petition are that the impugned complaint has been filed at the instance of the Divisional Forest Officer, SAS Nagar, against the petitioner alleging therein that the land comprised in Khasra Nos.41//40, 40 min, 75, 76, 37, 42, 56, 33, 31, 22, 34, 45 min, 50, 57, 47//33 min, 24 min, 25 min, 17 min, 13 min, 14 min, 15 min, 18 min, 20 min, 26 min, 27//30, 37 min, 29//33 min, 30//29 min, 31 min, 39//30 min, 40//32 min, 41//40 min, 50 min, 43 min and 48 min, situated at Village Karoran, Hadbast No.352, Tehsil Kharar, District SAS Nagar, was closed under Sections 4 and 5 of the PLPA vide Notification No. 458 and 459 dated 23.09.1914 and Notification No.39/118/2002-Ft.III/1486 dated 03.02.2003 issued by the Punjab Government. It was alleged that the petitioner had illegally carved out a path by cutting the hillock falling in the aforesaid Khasra numbers, without prior approval of the Forest Department. Prior to institution of the complaint, a notice dated 28.03.2017 was issued by the Forest Range Officer, SAS Nagar, calling upon the petitioner to stop the illegal activity, remove the violation and submit a reply within sixty days, failing which legal action would be taken. As no response or positive action was received, the impugned bearing COMA No.62 of 2017, came to be filed on 26.05.2017 alleging violation of Sections 4, 5 and 19 of the PLPA, the provisions of the Indian Forest Act, 1927, Section 2 read with Section 3-A of the Forest (Conservation) Act, 1980, and the judgment dated 12.12.1996 passed by the Hon’ble Supreme Court in CWP No.202 of 1995 titled T.N. Godavarman v. Union of India.

After recording of preliminary evidence, the learned Magistrate, vide order dated 15.09.2018, recorded a finding that there were sufficient grounds to proceed against the accused and summoned the petitioner to face trial for the aforementioned offences. The petitioner thereafter appeared before the learned trial Court and was granted bail. On 14.01.2020, the case was taken up for consideration of notice of accusation, when the petitioner raised various points seeking his discharge, contending, inter alia, that he was not the owner of the property in dispute, that the area was not forest land and that the learned Magistrate lacked jurisdiction. The learned trial Court did not accept the said pleas, observing that the questions regarding the petitioner's connection with the property, the status of the land and jurisdiction were matters of evidence, declined to discharge the petitioner and directed that notice of accusation be served. Aggrieved from order dated 15.09.2018, the petitioner has filed the present petition.

It is argued by learned counsel for the petitioner that he has been falsely implicated in the impugned complaint. He was neither the owner of the land mentioned in the complaint nor the Director or authorised representative of Regalia Resorts and Farms Pvt. Ltd. It was argued that the data of the company placed on record showed the names of other persons as Directors and that the name of the petitioner did not figure therein. Learned counsel further argued that the petitioner did not own or possess any land in Village Karoran and had no connection whatsoever with Regalia Resorts and Farms Pvt. Ltd., and that he was, at the relevant time, residing at Panchkula, beyond the territorial jurisdiction of the learned JMIC, Kharar.

It is further argued that the mandatory inquiry under Section 202 Cr.P.C. had not been conducted before issuance of process. It is also argued that no notice as required under Rule 9 of the Forest (Conservation) Rules, 2003 had been served upon the petitioner before filing of the complaint, inasmuch as Rule 9 required an opportunity of not less than sixty days to be given to the person concerned before filing of the complaint. It is further submitted that the provisions of Section 2 of the Forest (Conservation) Act, 1980 could not be invoked unless the land in question was forest land within the meaning of the said Act, and that land notified under Section 3 of the PLPA and regulated under Sections 4 and 5 thereof may or may not be forest land, the status of the land as on 25.10.1980 being required to be independently established.

It is further argued that the offences alleged in the complaint were triable by the Gram Panchayat, Karoran, under the Panchayati Raj Act, 1994, and that the learned JMIC, Kharar had no jurisdiction to take cognizance of the alleged offences, reliance being placed upon the provisions of Section 44 read with Schedule II-K of the Panchayati Raj Act, 1994. It is also argued that the judgment dated 12.12.1996 relied upon in the complaint had subsequently been dealt with by the Hon’ble Supreme Court in Civil Appeal Nos.4682-4683 of 2005, and that violation of a judgment of the Hon’ble Supreme Court could not, by itself, be made the basis of the present criminal complaint. It is urged that where continuation of the proceedings would amount to abuse of the process of law, the petitioner should not be compelled to face a criminal trial, and that the impugned complaint, the summoning order dated 15.09.2018 and all consequent proceedings, are liable to be quashed. To fortify his arguments, learned counsel for the petitioner has relied upon Vijay Dhanuka and others v. Najima Mamtaj and others, 2014 (3) RCR (Criminal) 793, Jadeep Bose v. M/s Bid and Hammer Auctioneer Private Limited, 2025 SCC Online SC 348, M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997 (4) RCR (Criminal) 761, Rajesh Bansal v. State of Punjab, 2025 NCPHHC 38074 and Amrinder Gupta Proprietor M/s Sun Shine Medicose v. State, 2025 NCPHHC 65083.

Reply has been filed by the respondent-State, by way of affidavit of the Forest Range Officer, SAS Nagar. Learned State counsel has argued that the petitioner has not approached this Court with clean hands, inasmuch as he has denied his connection with Regalia Resorts and Farms Pvt. Ltd., whereas he himself had written a letter dated 20.04.2016 (Annexure R-1) to the office of the Divisional Forest Officer, Mohali, regarding the affairs of Regalia Resorts & Farms Pvt. Ltd., describing himself as writing on behalf of the said company qua the land situated in Village Karoran and requesting the Forest Department to stop interfering in the company's work. It is argued that the said letter squarely falsifies the petitioner's stand of having no connection with the said company.

Learned State counsel has further argued that before institution of the complaint dated 26.05.2017, a notice dated 28.03.2017 (Annexure R-2/T) had been duly served upon the petitioner regarding the illegal cutting of the hillock and construction of a path in the area closed under Sections 4 and 5 of the PLPA, calling upon him to stop the illegal activity, remove the violation and submit his reply within sixty days, but no response or positive action was taken by him, and that the petitioner cannot now plead that he was unaware of the alleged violations.

Learned State counsel has further argued that the Jamabandi placed on record clearly shows that the land in question is subject to restrictions imposed under Section 4 of the PLPA vide Notification No.39/118/2002-Ft.III/1486 dated 03.02.2003, and that the change of user of the land has been restricted by the Punjab Government. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in Narinder Singh and Others v. Divesh Bhutani and Others, Civil Appeal No.10294 of 2013, decided on 21.07.2022, wherein it has been held that lands covered by special orders issued under Section 4 of the PLPA have all the trappings of forest lands within the meaning of Section 2 of the Forest (Conservation) Act, 1980, and that the State Government or competent authority cannot permit their use for non-forest activities without prior approval of the Central Government with effect from 25.10.1980. Reliance has also been placed upon the order of the Hon’ble Supreme Court dated 11.10.2018 in In Re: Kant Enclave Matters, wherein, in the context of land similarly situated in Village Karoran, it was observed that a notification issued under the PLP Act is a clear indication that the closed area must be forest land or be treated as forest land, and that such a notification, even if it does not ipso facto convert the land into forest land, at the least requires it to be treated as such. It is submitted that the question of partition of the land is a matter of evidence to be examined by the learned trial Court during trial.

Learned State counsel has further argued that the provisions of Section 202 Cr.P.C. were duly followed by the learned JMIC, Kharar, and that summons were issued to the petitioner only after the learned Magistrate was satisfied about the existence of sufficient grounds to proceed. It is submitted that the land where the alleged violations took place is within the territorial jurisdiction of the learned Magistrate, and that the petitioner, having corresponded with the Forest Department on behalf of Regalia Resorts and Farms Pvt. Ltd., cannot take the plea that he has nothing to do with the said company or that he has been wrongly summoned. It is further argued that in view of the multiple enactments involved, the Gram Panchayat was not competent to decide all the issues arising in the matter. It is submitted that the petitioner has thus made himself liable for prosecution and that there is no abuse of the process of law by the respondent. The State accordingly prays for dismissal of the present petition in order to prevent irreversible environmental damage.

This Court has heard the rival submissions of learned counsel for the parties.

The principal objection raised by learned counsel for the petitioner is that he was neither the owner of the land in question nor the Director or authorised representative of Regalia Resorts and Farms Pvt. Ltd. However, learned State counsel has referred to the letter dated 20.04.2016 (Annexure R-1), written by the petitioner himself to the Forest Department, wherein he had referred to the affairs of Regalia Resorts and Farms Pvt. Ltd. in relation to the land situated in Village Karoran. Whether the petitioner had any role in the affairs of the said company, whether he was connected with the alleged activities, and whether the land mentioned in the complaint corresponds to the property in question, are matters which require examination of the relevant documents and evidence, and cannot, at this stage, be conclusively determined in proceedings under Section 482 Cr.P.C., particularly when the complaint contains specific allegations and the learned Magistrate has already considered the preliminary evidence.

The contention regarding the status of the land also does not, at this stage, furnish a ground for quashing the proceedings. The complaint specifically alleges that the land was subject to restrictions under Sections 4 and 5 of the PLPA, and that the petitioner had undertaken construction of a path by cutting the hillock without the requisite approval. The applicability of the Forest (Conservation) Act, 1980, the effect of the restrictions imposed under the PLPA and the relationship between the land covered by the relevant Khasra numbers and the alleged violations, involve questions of fact and law which can be examined on the basis of the evidence led before the learned trial Court. The mere assertion of the petitioner that the land was not forest land cannot, by itself, justify quashing of the complaint when the prosecution relies upon the relevant revenue records, the notification issued under Section 4 of the PLPA, and the judgment in Narinder Singh and Others v. Divesh Bhutani and Others (supra).

The objection regarding the alleged absence of notice under Rule 9 of the Forest (Conservation) Rules, 2003 also cannot be accepted as a ground for quashing the proceedings at this stage. The respondent-State has specifically relied upon the notice dated 28.03.2017 (Annexure R-2/T), stated to have been served upon the petitioner before institution of the complaint, calling upon him to stop the alleged illegal activity, remove the violation and submit his reply within sixty days. Whether the notice was duly served, whether its contents satisfied the applicable statutory requirements, and what effect, if any, is to be given to the petitioner's failure to respond, are matters which can be examined by the competent Court on the basis of the record. The objection, therefore, does not warrant interference in the present proceedings.

As regards the objection regarding non-compliance with Section 202 Cr.P.C., the same also does not merit acceptance. The complaint in the present case has been instituted by the Divisional Forest Officer, SAS Nagar, a public servant, in discharge of his official duties. Hence, no inquiry under Section 202 Cr.P.C. was required to be conducted. The issue is squarely covered by the judgment of the Hon’ble Supreme Court in The State of Kerala & another v. M/s Panacea Biotec Ltd. & Anr., 2026 INSC 200, wherein, while considering an identical objection regarding non-compliance of Section 202 Cr.P.C. in a prosecution instituted by a statutory Inspector, it has been held that Section 202 Cr.P.C. has to be construed harmoniously with Section 200 Cr.P.C., and that where the complaint is made in writing by a public servant acting in discharge of his official duties, the Magistrate is not required to examine the complainant and the witnesses on oath. In view of the aforesaid authoritative pronouncement, the mere fact that the petitioner was residing beyond the territorial jurisdiction of the learned Magistrate, and that no separate inquiry under Section 202 Cr.P.C. was conducted, cannot, in the facts of the present case, be made a ground to quash the complaint or the summoning order.

The judgments relied upon by learned counsel for the petitioner do not advance his case in the facts of the present matter. The said judgments, except M/s Pepsi Foods Ltd.’s case (supra), deal with the procedural requirements governing examination under Section 200 Cr.P.C. and the stage of issuance of process. The issue arising in the present case, however, is specifically whether the requirement under Section 202 Cr.P.C. is to be applied in the same manner where the complaint is made in writing by a public servant in discharge of official duties. The judgment in Panacea Biotec’s case (supra) has directly considered the interplay between Sections 200 and 202 Cr.P.C. in such a factual setting. Consequently, the reliance placed upon the aforesaid judgments cannot displace the applicability of the subsequent authoritative pronouncement of the Hon’ble Supreme Court.

Learned counsel for the petitioner has also placed reliance upon M/s Pepsi Foods Ltd.'s case (supra) to argue that the summoning order dated 15.09.2018 does not reflect proper application of mind. The said judgment lays down the principle that issuance of process against an accused is a serious matter and that the Magistrate is required to apply his judicial mind to the allegations and the material placed before him. However, the validity of the summoning order has to be examined in the context of the complaint and the material available before the learned Magistrate. The mere absence of an elaborate discussion of the evidence in the summoning order does not warrant quashing of the proceedings, particularly when the complaint contains specific allegations and the learned Magistrate had recorded preliminary evidence before issuing process.

The contention that the alleged offences were triable by the Gram Panchayat and that the learned Judicial Magistrate First Class lacked jurisdiction also does not warrant interference at this stage. The applicability of the provisions relied upon by the petitioner, the nature of the offences alleged and the extent of jurisdiction of the learned Magistrate require consideration in the context of the statutory scheme and the specific allegations made in the complaint, and cannot be decided merely on the basis of the petitioner's assertions, without examining the applicable law and the factual foundation of the prosecution. It is a settled principle that the inherent jurisdiction of this Court is to be exercised sparingly and with due caution, particularly where the allegations in the complaint disclose matters requiring adjudication upon evidence. Similarly, the reliance placed by learned counsel for the petitioner on the subsequent proceedings in Civil Appeal Nos.4682-4683 of 2005, to contend that land closed under the PLPA may or may not be forest land, does not, in the facts of the present case, warrant quashing of the complaint at the threshold, in view of the specific notification issued under Section 4 of the PLPA and the law laid down in Narinder Singh and Others’ case (supra).

In view of the foregoing discussion, this Court finds no sufficient ground to hold that the impugned complaint or the subsequent proceedings, including order dated 15.09.2018 constitute an abuse of the process of law. The petition is, accordingly, dismissed.

The pending miscellaneous application(s), if any, shall stand disposed of.