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Judgment
Rathnakala, J.—Though the matter is listed for admission, by consent it is taken up for disposal.
The petition is filed to quash the First Information Report in Crime No. 154/2012 registered on 03.11.2012 by the respondent-Sandur Police in respect of offences punishable under Sections 109 , 119 , 120 , 166 , 405 , 407 , 408 , 409 , 420 and 463 of IPC and another First Information Report dated 29.11.2013 registered by the Karnataka Lokayukta Police in their Crime No. 14/2013 for the offence punishable under Sections 109 , 119 , 120 , 166 , 405 , 407 , 408 , 409 , 420 and 463 of IPC and Section 13(1)(c) , 13(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
The facts succinctly stated, the petitioner at the relevant point of time was working as Assistant Conservator of Forest. The Range Forest Officer of Sandur range submitted a recommendation on 09.08.2005 for issuance of No Objection Certificate in favour of M/s. Balaji Mines and Mineral for carrying mining activity vide his letter bearing No. Pa/A.A/Bhoomi/Ka.Kwa/Ba/2005-06. On the basis of the said recommendation, the petitioner further recommended for issuance of No Objection Certificate vide his letter bearing No. BHOOMI/Ka Kwa/2/2005-06 dated 23.08.2005. The Deputy Conservator of Forest, Bellary Division issued a recommendation letter to the Deputy Commissioner of Bellary District. Despite above stated recommendations, the Deputy Commissioner rejected No Objection Certificate vide his endorsement bearing No. Sam/Kam/Gani/55/2005-06 dated 12.10.2007 on the ground that the available land in Muraripur village is 725.22 acres, as such No Objection Certificate for 729 acres cannot be given. Accordingly, mining license was not given to Balaji Nimes and Minerals to carry out mining at Muraripur village of Sandur Taluk.
The Deputy Commissioner issued show cause notice to the petitioner calling upon his explanation for favouring the M/s. Balaji Mines and Minerals and petitioner furnished his explanation. Without considering his explanation, on the complaint of Range Forest Officer who is an inferior officer to the petitioner, the respondent police registered a case as per Annexure-P against him for the offence 109 , 119 , 120 , 166 , 405 , 407 , 408 , 409 , 420 and 463 of IPC. The allegation in the complaint was, subsequent to the recommendation made by him for mining license, on 20.03.2008, the Deputy Conservator of Forest conducted spot inspection and found that it was a hill block with greenery of the hillock surrounding Muraripura village is recorded as forest and the Apex Court has declared it as forest land as per the Government Notification No. FED.28.FAF.81 dated 28.02.1985. It is notified as reserve forest measuring 9065 hectare etc.
The petitioner on coming to know about the case registered against him, approached this Court for anticipatory bail in Crl. P. No. 11299/2012 and he was granted anticipatory bail vide order dated 07.11.2012. As such, he had taken voluntary retirement from service during 2006 i.e., 5 years prior to registration of the case against him. He challenged filing of the First Information Report against him in this petition on 16.09.2013. But even prior to registration of this petition, the State had transferred the investigation of the matter along with the case records to Lokayukta on 07.08.2013. Accordingly, the Lokayukta Police have registered a case in their Crime No. 14/2013. On coming to know about the transfer of the investigation to Lokayukta Police, the petition is amended and Lokayukta was arrayed as second respondent.
Learned counsel for the petitioner submits as per Rule 123(i) of the Karnataka Forest Code, 1976, petitioner is not responsible for identifying the forestlands. The Range Forest Officer being the officer in executive charge of the Range is responsible for the custody and condition of all Government Property in his charge who shall have the knowledge and whereabouts pertaining to demarcation of the forestland. There was no financial implication on the State exchequer by the act committed by him. He has no domain or control over the property, that rests with the Governor of the State only. In none of the official documents, Muraripura Village is included in the forest area. As per the Section 4 of the Karnataka Forest Act, 1963, no notification is issued declaring land around Muraripura village as forest land and no final notification is issued under Section 17 of the Karnataka Forest Act, 1963 in this regard. Coming to the complaint allegation, it is nowhere alleged that he has misused his official position to favour anybody. There is no allegation of any demand of bribe by anybody.
It is the further submission of learned Counsel that there is no averment in the complaint that by illegal or corrupt means he has obtained valuable thing or pecuniary advantage for anybody more particularly from Balaji Mines and Minerals. That being so, neither a case under any of the provisions of IPC nor under the provisions of Prevention of Corruption Act, 1988 is prima facie made out. Continuing with the investigation only on surmises and conjunctures is nothing but abuse of process of law. Long after his retirement, the complaint is filed with mala fide intention. Hence, the complaint and consequently, the proceedings may be quashed.
Learned HCGP for respondent No. 1 submits that admittedly, the petitioner herein had recommended for grant of land for mining activities which was subsequently found to be a hill block where there was grown up plantation. The petitioner could not have recommended without personal inspection of the land and also without verifying the documents. He dealt with the said property with ulterior motive and for personal gain. The act committed by him apart from attracting the provisions of Prevention of Corruption Act are also punishable under the provisions of IPC. Unless the investigation is proceeded with, it is premature to say that no case is made against him or to presume that case is registered with mala fide intention. It is not a complaint by any private party but by the Department in which he had served. The contention raised by the petitioner in his petition can be looked into only during investigation. If it is found that he is not responsible for the act alleged, then same would be reflected in the final report.
Learned HCGP further relies on the judgment of the Apex Court in the case of Dr. Monica Kumar and Another Vs. State of U.P. and Others, , wherein it was held that mere lodging a complaint in no way prejudices the petitioner. Having regard to the nature of the allegation, it is in the interest of the State to allow the investigation to continue.
Sri V.T. Sonwalkar, learned counsel for respondent No. 2 submits that, his very act that he in recommending the area for issue of mining license which was subsequently found to be a hill block and a forest, suggests it was recommended for some exterior benefit. Unless the investigation is proceeded to probe the true facts, it will not be possible to give the details of the offence committed. Under the circumstances, ends of justice require that the second respondent shall continue with the investigation to find out the truthfulness or otherwise of the allegation. Till now investigation could not be conducted since investigation is transferred from the State during the pendency of this petition.
Having heard rival submissions, my concern now is whether the case registered against the petitioner deserves further probe?
As such, it is the State which issues a license for mining under the order of the Governor. The forest department is only a recommending authority whose responsibility is the extent of finding out whether the area in which mining is proposed, falls within the boundary of forest or not. The recommendation for mining was at the first instance, given by the Range Forest Officer, who is the primary authority in respect of the forest land and its property. The ACF is not supposed to be in control of necessary tools to identify the boundary of a forest. As per the Forest Code, he is not responsible for such identification. It is for the Division Forest Officer who is in control and custody of the maps, boundaries and sketch of the forest area to verify, even if any such recommendation is made by his subordinate officers. The Division Forest Officer being an officer in the helm of affairs, his responsibility could not have been shifted to the petitioner who is only a Supervisory Officer and whose duty is to assist the Division Forest Officer. It appears that the State is under the impression that the Muraripura Village comes within the forest area, on the information given by Assistant Director of Land Records and Tahsildar, since it looked like a forest, when they visited the spot in the year 2007. But the Tahsildar/Assistant Director of Land Records is not the authority to declare a land as a forest unless it is notified by the State Government under Sections 4 and 17 of the Karnataka Forest Act.
The State is relying on the judgment of the Apex Court in W.P. No. 202/1995 wherein, an Expert Committee was formed to identify the forestland. A copy of the Expert Committee Report is submitted in respect of the reserve forests of Karnataka State (which was formed as per the directions of the Hon''ble Apex Court) nowhere, lands of Muraripura village find a place in the lands listed in this report as Reserve forest or as Deemed Forest. Having regard to the fact that the recommendation made by the petitioner did not cause financial implications on the State exchequer nor did cause loss or damage to the State property, it cannot be said that petitioner had committed any offence under any provisions of law, much the less under the penal provisions quoted in the first FIR registered by Sandur Police or in the FIR of Lokayuktha Police i.e., 109 , 119 , 120 , 166 , 405 , 407 , 408 , 409 , 420 and 463 of IPC and Section 13(1) and 13(d) of Prevention of Corruption Act. If for a movement, it is to be presumed that by giving a recommendation inadvertently without examining the material facts, he exhibited negligence in due performance of his duty, then also none of the offence as alleged in the FIR are not attributed. The Apex Court in Civil Appeal No. 10660/2010 in the case of Subramanian Swami Vs. A. Raja, has held that "suspicion however, strong, cannot take place of a proof. A wrong judgment, or an inaccurate or incorrect approach or poor management by itself, even after due deliberations by itself cannot be said to be a product of criminal conspiracy".
It appears, Sandur Police having failed in their attempt to collect any material in support of the complaint allegation washed off their hands by transferring the case to Lokayuktha Police. When there is no material against the petitioner in any of the offence alleged against him Sandur Police, there cannot be any offence against him under the provisions of the Prevention of Corruption Act also. The investigation on such imaginary and illusionary allegations is a waste exercise and nothing but abuse of process of law, waste of valuable public time and money. Hence, both FIR''s registered against the petitioner deserve to be quashed by invoking the extreme jurisdiction of this Court under Section 482 Cr.P.C.
Accordingly, the petition is allowed. The FIR bearing Crime No. 154/2012 registered by the Sandur Police Station for the offences punishable under Sections 109 , 119 , 120 , 166 , 405 , 407 , 408 , 409 , 420 and 463 of IPC, Sections 13(1) , 13(D) of the Prevention of Corruption Act, 1988 and FIR bearing Karnataka Lokayukta, Bellary Police Station in crime No. 14/2013, for the offences punishable under Sections 109 , 119 , 120 , 166 , 405 , 407 , 408 , 409 , 420 , 463 of IPC and under Sections 13(1)(c) and 13(d) of P.C. Act, 1988, are quashed.