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State Of J&K v. Romesh Chander And Others
Factual and Procedural Background
Respondents 5 to 7—Sudhir Kumar, Sharat Kumar and Davinder Kumar—were granted a lease on 28 April 1978 to extract timber from Compartments 55-56, Bani Range of Billawar Division, initially up to 31 December 1986 (purportedly extended to 31 December 1987). On 22 February 1985 the State issued an administrative order directing the contractors to complete extraction by 3 September 1984, after which any un-salvaged timber would vest in the State.
The Jammu & Kashmir State Nationalisation of Forest Working Act, 1985 came into force on 24 September 1985, vesting all timber lying in demarcated forests in the State notwithstanding subsisting leases. Respondents challenged the Act in Writ Petition No. 968 of 1985, where the High Court issued an interim order (13 November 1985) restricting further launching of timber but allowing timber already in the nallah to be moved under Forest Department supervision.
The 1985 Act was struck down by the High Court on 13 December 1985. Subsequently, Jammu & Kashmir Nationalisation of Forest Working Ordinance No. 5 of 1986 (retrospective from 24 September 1985) and later the Jammu & Kashmir Nationalisation of Forest Working Act, 1987 (also retrospective) were promulgated.
Alleging illegal removal of timber, the State lodged an FIR naming four forest officers and the three contractor-lessees. After investigation, a charge-sheet was filed against the seven accused for offences including conspiracy and unlawful removal of timber under Ordinance 5 of 1986. The trial court discharged all accused. Criminal Revision No. 6 of 1992 against that order was dismissed by the High Court on 23 April 1992. The State appealed to the Supreme Court by special leave, resulting in the present decision.
Legal Issues Presented
- Whether the trial court and the High Court erred in discharging the accused without examining whether the charge-sheet disclosed a prima facie case under Ordinance 5 of 1986 and related provisions.
- Whether, in view of the retrospective nationalisation legislation, the contractor-lessees could be proceeded against for offences alleged in the charge-sheet.
Arguments of the Parties
State (Appellant)
- Contended that both the trial court and the High Court failed to apply the correct legal test; the charge-sheet, by itself, constituted prima facie evidence warranting the framing of charges.
- Sought reinstatement of criminal proceedings against the surviving accused, noting that prosecution had abated against two deceased forest officers.
Respondents 5-7 (Contractor-Lessees)
- Argued that they did not fall within the mischief of Ordinance 5 of 1986, the quashed 1985 Act, or the subsequent 1987 Act, and therefore no offence was made out against them.
- Maintained that the High Court correctly upheld the discharge as no cognisable offence had been disclosed.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court emphasised that, under settled law, a charge-sheet is sufficient to establish a prima facie case for the purpose of framing charges. Consequently, a court considering discharge must:
- Examine the relevant statutory provisions (here, Ordinance 5 of 1986 and the 1987 Act); and
- Assess whether the allegations in the charge-sheet, if accepted at face value, constitute the offences alleged.
The Court found that the High Court had not conducted this analysis. Rather than adjudicating the merits itself, the Supreme Court deemed it appropriate to remit the matter so the High Court could apply the correct legal standard and consider all contentions afresh.
Holding and Implications
APPEAL ALLOWED; MATTER REMITTED TO THE HIGH COURT.
Direct Effect: The discharge orders are set aside, and the High Court must reconsider the revision petition in accordance with law, preferably within three months of receiving the Supreme Court’s order.
Broader Implications: While no new precedent is expressly created, the decision reiterates that courts must scrutinise the charge-sheet and applicable law before discharging accused persons in criminal proceedings.
Order
1. Delay condoned.
2. Leave granted.
3. We have heard learned counsel on both sides.
4. This appeal by special leave arises from the order of the High Court of Jammu and Kashmir, made on 23-4-1992 in Criminal Revision No. 6 of 1992. Respondents 5 to 7, namely, Sudhir Kumar, Sharat Kumar and Davinder Kumar were granted lease to extract timber from Compartments Nos. 55-56, Bani Range of Billawar Division. It is not in dispute that the lease of 28-4-1978 was to be effective up to 31-12-1986. It is stated by the respondents that for certain other purposes, it was extended up to 31-12-1987. We need not record any findings in that behalf. It is only noted as asked for. The Government have passed an order on 22-2-1985 directing the aforesaid three contractors to complete the extraction of the timber up to 3-9-1984 and thereafter unsalvaged timber would stand vested in the State. Admittedly, this is only an administrative order. On 24-9-1985, the Jammu and Kashmir State Nationalisation of Forest Working Act, 1985 was enacted. Thereunder, all timber lying within demarcated forests stood vested in the State w.e.f the aforesaid date notwithstanding any lease or agreement subsisting as on the date. The government order dated 22-11-1984 was stayed by the High Court on 12-3-1984 by an order in WP No. 48 of 1983 and CMP No. 2120 of 1984. When the respondents filed Writ Petition No. 968 of 1985 challenging the validity of the Act, the High Court passed an order as under:
“The DFO Billawar is appointed as Commissioner who shall go to the launching sites in respect of Compartment No. 55-56 Basohli, Bani, Range Billawar Division and shall ensure that no timber is launched in the nallah after the passing of this order i.e, 13th of November, 1985 by the petitioner. The DFO Billawar shall however not interfere with the timber already launched in the nallah. The said timber shall be permitted to be brought by the petitioner, through his labour at his own risk and cost and without prejudice to the rights of the parties up to the western bank of River Ravi, opposite to the collection point Shahpur Kandi located on the eastern bank of River Ravi within the State of Jammu and Kashmir. The petitioner shall have the timber already launched in the nallah brought to the western bank of River Ravi, as noticed above, under the supervision of DFO, Billawar or his nominees. The petitioner shall have no right or lien over the timber so brought to the western bank of River Ravi save as may be decided subsequently by the Court on the disposal of the writ petition. The timber when brought to the western bank of River Ravi shall be stocked there against proper receipt and shall remain under the charge and control of the Forest Department and the petitioner shall not cause any interference in that regard. This may subsequently be varied or modified in that behalf by either of the parties after notice to the opposite party.”
5. Thereafter the Act came to be struck down by the High Court on 13-12-1985. The Jammu and Kashmir Nationalisation of Forest Working Ordinance No. 5 of 1986 was passed on 31-1-1986 with retrospective effect from 24-9-1985. It would appear that the ordinance lapsed and subsequently another ordinance was issued on 16-12-1986 which was replaced by the Jammu and Kashmir Nationalisation of Forest Working Act, 1987 which came into effect from 21-4-1987 with retrospective effect from 24-9-1985. The Ordinance 5 of 1986 was given effect from 24-9-1985.
6. Section 3(a) of Ordinance 5 of 1986 envisages that “notwithstanding anything to the contrary contained in any law, rule instrument, agreement of contract or in any judgment, decree or order of any court or authority as from the commencement of this ordinance, no person shall fell any tree or convert any timber or carry on the felling of any tree or conversion or removal of any timber in any demarcated forest of the State …”. Section 9 prescribes penalty and states that “any person who contravenes the provisions of this ordinance or abets the contravention thereof, shall be punishable with imprisonment for a term which may extend to five years but shall not be less than three years”. The appellant filed an FIR alleging therein certain accusations against four named officers and also the respondent-lessees. After conducting the investigation the charge-sheet was filed by the police against seven persons including the aforesaid three lessee-respondents for several offences and also the four officers for offences including conspiracy in permitting lessee-respondents to remove the timber from the demarcated forest etc. the details of which we are not mentioning for the reason that we are not disposing of the matter on merits at this stage. The trial Judge discharged all the accused. On filing of a revision, the High Court in the impugned order confirmed the same. Thus, this appeal by special leave.
7. Shri Manhas, learned counsel appearing for the State, contends that the trial court and the High Court were not right in discharging the accused. It is necessary to mention that DFO, Khojaria and Chowdhary Girdhari Lal have died. Therefore, the prosecution against them stands abated. The question is: Whether prima facie case has been made out against the respondents? Shri D.D Thakur, learned Senior Counsel appearing for Respondents 5 to 7, the lessees, contends that they did not commit any offence and they do not come under the provisions of either Ordinance 5 of 1986 or the Act which was quashed by the High Court or Act 7 of 1987. Therefore, no case has been made out against them. As stated earlier, we decline to consider the matter on merits for the reason that the High Court should have considered all the relevant provisions of the Act and offences and the contentions of the parties taking into consideration the averments made in the charge-sheet. It is now settled law that the charge-sheet constitutes prima facie evidence constituting the offence for proceeding further in the matter. Necessarily, therefore, the Court has to look into the relevant law and the allegations made in the charge-sheet and then consider whether any offence has been committed to frame charges for trial before discharging the accused. Since the High Court has not done that, we think it proper that the High Court should reconsider the matter and dispose of it in accordance with law. All the contentions raised by the learned counsel on either side are left open. It is open to the counsel to argue the matter in the High Court.
8. The appeal is accordingly allowed and the case is remitted to the High Court for disposal. Since it is an old case, we would request the High Court to dispose of it as expeditiously as possible within three months from the date of the receipt of this order.
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