Full Judgment Text
2018:BHC-AS:35269-DB
31 WP 1189 -17.doc
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Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION No. 1189 of 2017
Frank Augustin Lopes,
Aged 38 years, residing at “Sweet House”,
Zagodi, Nale-Panmali, Post Sopara,
Taluka Vasai, District Palghar … Petitioner
Vs
1. State of Maharashtra,
(At the instance of Nala Sopara Police
Station, Dist. Palghar)
2. Shri Surendra Pandit Patil,
Residing at Mangalam CHS Ltd.,
Barhampur, Near Dosti Paradise,
Vasai Road, Taluka Vasai, … Respondents
Mr.Ganesh Bhujbal, for the Petitioner.
Mr.F.R.Shaikh, APP, for Respondent-State.
CORAM : B. P. DHARMADHIKARI &
SARANG V. KOTWAL, JJ.
Date : 19th December, 2018.
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Oral Judgment :
Heard finally by issuing Rule and making it returnable
forthwith by consent. On 17 March 2017, this Court has passed
following order-
'2. Heard learned counsel appearing for the
Petitioner and the learned APP for the first
Respondent.
3. Issue notice to the second Respondent,
returnable on 20th April 2017.
4. The submission of the learned counsel
appearing for the Petitioner is that the offen
punishable under Section 21 of the Maharasht
(Urban Areas) Protection and Preservation of Trees)
Act, 1975 is not a cognizable offence and hence,
First Information Report could not have been
registered.
5. By way of ad-interim relief, we direct that though
investigation shall continue, chargesheet shall not
be filed as against the Petitioner.'
2. Respondent No.2 is duly served. Learned counsel
appearing for Petitioner states that offence under Section 21 of
Maharashtra (Urban Areas) Protection and Preservation of Trees)
1975 is not cognizable and hence registration of FIR or investigat
carried thereafter by Respondent No.1 is without jurisdiction
non-est. He submits that Respondent No.2 is a private person w
lodged police complaint and its cognizance has been taken.
3. Learned APP does not dispute the facts. He
submits that this Court should not intervene in extra o
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jurisdiction as the offence is in relation to a conduct which has go
impact on environment.
4. Section 21 of the Maharashtra (Urban Areas) Protection
and Preservation of Trees) Act, 1975 makes the offence of tree fe
punishable with fine of not less than Rs.1000/- which may extend
upto Rs.5,000/- and also that imprisonment for a term of not less
than one week which may extend upto one year. There is no oth
section in the 1975 Act dealing with offences or its cognizane or
procedure. Section 2(h) explains that words and expression used
1975 Act but not defined therein, are to be given meaning assig
to them in relevant Act. It therefore follows that prosecution for
offences under Section 21 has to be in consonance with Cr.P.C 1
5. We need not delve more on this controversy b
impact of such cognizance and investigation without necessary
permission in terms of Section 155 (2) of Cr.P.C is looked into by
Court in case of Mukesh Laxman Das Talreja Vs Inspector of Police
2006(2) Bom.C.R. (Cri.) 76 .
6. There the learned Single Judge of this Court h
paragraph 6 observed as under -
'6. A perusal of the said section makes it clear
that the aforesaid provisions of obtaining the
permission is a mandatory provision and if there is
non-compliance of the said provision, the
investigation which is carried out by the Pol
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Officer would be rendered illegal and void. In my
view, since the said provision has not been followed,
the entire investigation which is carried out by the
Police Officer will have to be set aside on
ground alone'.
7. In view of this ruling and also clear provisions of law it is
apparent that the cognizance and investigation is unsuspendable and
est. In statute too we could not give any provision like Section 20(c)
1975 Act. Consequently, R.C.C. No.1352 of 2018 is also quashed .
(Sarang V.Kotwal, J.) (B.P.Dharmadhikari
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