Yogesh @ Yogendra and Others vs State of M.P. and Others

J.K. Maheshwari, J.—This petition seeking writ in the nature of Habeas Corpus has been filed under Article 226 of the Constitution of India by the petitioners, inter alia contending that the detention of petitioners by the police officers with effect from 28-8-2012 without conducting magisterial inquiry in view of the notification Annexure P/1 F-16/266/license/96/B/(1) (two) dated 11-6-1996 issued by the Home Department is arbitrary and not permissible under the law. Therefore, a direction to release the corpus may be issued. The facts, in brief are that, on 28-8-2012 at about 6.30 A.M., petitioners along with Ranger Virendra Singh Tomar, Dy. Ranger Baburam Adiwasi, Hari Singh Forest Guard and Abhishek Singh decided to go on patrolling and to visit of compartment No. 144 of reserve forest together with the picket of SAF personnels as directed by the Chief Conservator of Forest Gwalior circle Gwalior vide order dated 6-7-2012 to procure law and order situation. In the said picket, Prakash Chand Jhala No. 77, Shakti Singh Sikarwar No. 341 and Umesh Vishwarma No. 810 accompanied them. At about 7.30 A.M., the patrolling party came across with several forest offenders who were 30-40 in number and some of these persons were habitual offenders, as several criminal cases have been registered against them under different sections as per list produced at Annexure P/4. Those offenders want to fetch wood illicitly in forest are of the said compartment. These persons were armed with deadly weapons and they made the attack on the patrolling party. At that time, Dy. Ranger gave command to the SAF personnels to resort to open fire in the air so that the offenders may be dispersed and run away. In the said attack made by the offenders, members of patrolling party Harishankar Sharma and two others unarmed forest guards were injured. In such circumstances, SAF personnels opened fire on the assaulting mob of offenders below the waist, wherein, two offenders namely Jaheer and Ismail received injuries on the thigh and foot region. Injured Ismail was immediately sent to Hospital for treatment where he succumbed due to bullet injuries. Whereupon, PS Sheopur registered a case at Crime No. 441 of 2012 under sections 147, 148, 149 and 307, Indian Penal Code, later on section 302, Indian Penal Code was added against the petitioners as well as two other forest officers. While on the report submitted by Dy. Ranger, offence was also registered at Crime No. 442 of 2012 under sections 353, 186, 147, 148, 149, 427, 294, 332 and 323, Indian Penal Code against the said offenders and when forest officers went to lodge the report, they were detained by the police authorities and produced before the Chief Judicial Magistrate, Sheopur. As per order passed by him petitioners were sent to judicial custody.

Learned counsel for the petitioners submit that in view of the notification issued by the Home Department dated 11-6-1996 Annexure P/1 it is clear that on lodging First Information Report no cognizance shall be taken by the police authorities, until and unless Inquiry directed by the Jila Dandadhikari/Collector is not completed regarding the fact that the force so used was not without any justifiable cause or in excess to the private defence. It is further urged that as per section 74 of the Indian Forest Act, it is clear that no suit, prosecution or other legal proceeding shall lie against any public servant for anything done in good faith or omitted to be done likewise, under this Act or the rules or orders made thereunder. In such circumstances, if the action is taken by the patrolling party for maintaining law and order, and to procure forest produce in the good faith, no further action on the First Information Report is permissible including detention of petitioners. It is also submitted that as per report, allegation has been levied against the forest officers in spite of the fact that the arm was used by the SAP picket which is apparent from the statements of SAP personnel given by them to their company commander as per Annexure P/7. In such circumstances, registration of case against the forest officers while they were on duty and to detain them is against the said notification and without completion of the inquiry thus, it is amounting to their illegal detention.

The respondents by filing their reply have averred that at present, the petitioners are in custody as per the order passed by the Court after registration of the case against them; therefore, writ in the nature of habeas corpus is not maintainable. It is further submitted that in the FIR lodged against the petitioners, specific allegations have been levied against them, therefore, the offence has rightly been registered and they were sent to judicial custody by the order of Chief Judicial Magistrate. It is further submitted that the petitioners have also filed bail applications bearing M.Cr.C. Nos. 6956 of 2012, 6957 of 2012 and 6958 of 2012 which are pending for consideration. In such circumstances, since the petitioners have already taken recourse of law, therefore, release of petitioners in the writ of habeas corpus cannot be directed. It is further contended that as per section 41 of Criminal Procedure Code police officer conferred with the power to make arrest of a person even without order from the Magistrate in a case where cognizable offence has been committed. However, the powers so conferred under the Criminal Procedure Code cannot be taken away by way of notification Annexure P/1 issued by the respondents. Therefore, detention of the petitioners cannot be treated to be illegal detention and the writ in the nature of habeas corpus may be dismissed.

After having heard learned counsel for the parties and considering the provisions contained in section 74 of the M.P. Amendment of Indian Forest Act, 1927 as well as the provisions of section 197(2), we are of the considered opinion that the aforesaid provisions are having its application when the cognizance is to be taken by the Court and it has no application in the case where the cognizance is to be taken by the police. In such circumstances, the petitioners cannot derive any benefit of the said provision, however, the contention of petitioner on the said point is hereby repelled.

Now coming to the arguments of the petitioners to get benefit of the Notification dated 11-6-1996 issued by the State Government through the Home Department, the language of the said notification would be necessary to refer and to take note thereof, however, the said notification is reproduced verbatim;--

Bare reading of the aforesaid, it is apparent that the cognizance by the police on lodging the FIR against the forest officials has been restricted till holding the enquiry by the District Collector on all the issues aforementioned. The restrictions have been imposed only in a matter where the forest personnels while discharging their duties have used the firearms while protecting the forest produce in maintaining law and order.

The language of the notification does not take away the power of arrest as conferred while exercising the discretion by the police officer u/s 41 of Criminal Procedure Code. The language of the aforesaid makes it clear that the arrest on lodging an FIR against the forest personnels has been deferred till the enquiry conducted by the District Collector. However, it can safely be observed that by issuing notification power u/s 41 of Criminal Procedure Code has not been taken away from a Police Officer. It may be observed that issuance of the said notification has not disputed by the State Government, however, it is binding on the police officers while making arrest in exercise of discretion u/s 41 of Criminal Procedure Code in a cognizable offence. It can further be observed that by the said notification protection has been extended to the forest officials, and while discharging official duty procuring forest produce, against them FIR has been lodged. If their act is found in discharge of the official duty and they have used the firearm under right to their private defence and such use is not in excess to their right, however, the aforesaid notification cannot be said to be unreasonable or in contravention to the provisions of the Criminal Procedure Code. In furtherance to the aforesaid notification on a letter written by the DFO to the Collector District Sheopur, an enquiry was directed vide order dated 4-9-2012 on the following issues:

It is not in dispute that the enquiry is in progress and it is to be examined that the allegations so alleged in the FIR against the forest officers is correct or (hey have acted in discharge of the official duties to maintain the public order protecting forest produce. No finding has yet arrived that the use of firearms was in excess to the right to their private defence. It has not been explained in the return that after directing magisterial enquiry following the notification which is binding on the officers of the police department, why the arrest of the forest officials has been made in haste. It is to be observed here that merely taking a bald statement in the return that due to non-arrest of forest official, the law and order situation may arise is of no help to the police officers, particularly after directing the enquiry by the Collector, District Sheopur, who also have the bounden duty to maintain law and order, thus, the aforesaid defence is based on afterthoughts. It is relevant to note here that the forest officers were unarmed and the picket of SAF was armed who had fired and the said fact has been admitted by them in their statements given to the company Commander regarding use of fire arm and causing injury to the offenders. In such circumstances, it is the duty of the investigating officer to examine regarding the viability of allegations of the FIR lodged by the individuals who were offenders and against them offences are already registered and pending. However, in such a case, arrest so made by the police personnels is contrary to the aforesaid notification of the Home Department and even after directing the magisterial enquiry by the Collector, District Sheopur.

In view of the foregoing, the action of the police personnels is found contrary to the notification issued by the Home Department. But simultaneously, it is further seen from the record that after arrest of the forest officials they have been produced before the Chief Judicial Magistrate who by its order sent them to the judicial custody. Thus, at this stage their detention cannot be said to be illegal warranting interference and to issue writ in the nature of Habeas Corpus. It is seen that since the petitioners have already applied for grant of bail and their bail applications are pending, however, it is suffice to observe that they may pursue their bail applications applying for early hearing and the Court may pass appropriate orders thereupon. In view of the foregoing it is to be held that the Notification dated 11-6-1996 issued by the Home Department deferring cognizance by the police till the enquiry directed by the Collector, is just and reasonable and do not override the powers of the police officers conferred u/s 41 of the Criminal Procedure Code on them. But, in view of the order passed by the Chief Judicial Magistrate sending the petitioners into judicial custody and the petitioners have persuaded their remedy by filing the bail petitions which are pending, in the facts of the present case, at this stage their detention cannot be held illegal. Therefore, interference in this petition by issuing the writ in the nature of habeas corpus is not warranted. In the facts and circumstances of the case, parties are directed to bear their own costs.