STATE OF JAMMU AND KASHMIRversusROMESH CHANDER AND ORS.

      •              STATE OF JAMMU AND KASHMIR                                     A
                                         v.
                       ROMESH CHANDER AND ORS.

                              NOVEMBER 27, 1996

                [K. RAMASWAMY AND G.T. NANAVATI, JJ.]                               B

          Jammu and Kashmir State Nationalisation ofForest Working Act, 1985:

         Jammu and Kashmir Nationalisation of Forest Working Ordinance,
    1986:
                                                                                    c
          Jammu and Kashmir Nationalisation of Forest Working Act, 1987:

           Triaf-Discharge of accused-Validity of-Lease granted to respondents
    for extr~ction of timbe,-FJR lodged against them for removal of timber from
    demarcated forest-Charge sheet-Discharge by Trial Court-On revision             D
    preferred by State High Court confirmed the discharge orde,-Appeal preferred
    by State-Held, the charge-sheet constitutes prima facie evidence constituting
    the offence for proceeding further in the matte,-Court should 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 the case is      E
    remitted to the High Court for disposal-High Court should reconsider the
    matter and dispose it of in accordance with law.

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    2009 of 1996.
                                                                                    F
         From the Judgment and Order dated 23.4.92 of the Jammu &
    Kashmir High Court in Cr!. R. No. 6 of 1992.

          Jagdev Singh Manhas for the Appellant.

            D.D. Thakur, G.A. Lone, P.H. Parekh, N.N. Bhatt, Ms. Bina Mad-          G

.
-
    havan, Ranjit Kumar, Ms. Anu Mohla and Ms. Binu Tarnta for the Respon-
    dents .

          The following Order of the Court was delivered :

          Delay cond_oned.                                                          H
                                        239
    240                    SUPREME COURTREPORTS [1996) SUPP. 9 S.C.R.

A         Leave granted.                                                       •

          We have heard learned counsel on both sides.

           This appeal by special leave arises from the order of the High Court
    of Jammu and Kashmir, made on April 23, 1992 in Criminal Revision No.
B
    6/92. The respondents 5 to 7, namely, Sudhir Kumar, Sharat Kumar and
    Davinder Kumar were granted lease to extract timber from compartment
    No. 55-56, Bani Range of Billawar Division. It is not in dispute that the
    lease of April 28, 1978 was to be effective upto December 31, 1986. It is
    stated by the respondents that for certain other purposes, it was extended
C   upto December 31, 1987. We need not record any findings in that behalf.
    It is only noted as asked for. The Government have passed an order on
    February 22, 1985 directing the aforesaid three contractors to complete the
    extraction of the timber upto September 3, 1984 and thereafter unsalvaged
    timber would stand vested in the State. Admittedly, this is only an ad-
D   ministrative order. On September 24, 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 not\vithstanding any lease or agreement subsisting as on the
    date. The Government order dated Ncvember 22, 1984 was stayed by the
    High Court on March 12, 1984 by an order in W.P. No. 48 of 1983 and
E   C.M.P. No. 2120/84. When the respondents filed the Writ Petition No.
    968/85 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
F           the launching sites in respect of the compartment No. 55-56 Basoh-
            li, 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,
G           through his labour at his own risk and cost and without prejudice
            to the rights of the parties upto 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 J&K. The petitioner
            shall have the timber already launched in the nallah brought to the
H           western bank of river Ravi, as noticed above, under the supervision
                      STATEv. ROMESHCHANDER                             241

         of DFO/Billawar or his nominees. The petitioner shall have no         A
        ~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 t~ the
        western bank of river Ravi shall be stocked there against proper
        receipt and shall remain under the charge and control of the Forest
                                                                               B
        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."

      Thereafter, the Act came to be struck down by the High Court on
December 13, 1985. The Jammu and Kashmir Nationalisation of Forest             C
Working Ordinance No. 5 of 1986 was passed on January 31, 1986 with
retrospective effect from September 24, 1985. It would appear that the
Ordinance lapsed and subsequently another Ordinance was issued on
December 16, 1986 which was replaced by the Jammu and Kashmir
Nationalisation of Forest Working Act, 1987 which came into effect from        D
April 21, 1987 with retrospective effect from September 24, 1985. Since the
Ordinance 5 of 1986 was given effect from September 24, 1985.

        Section 3( a) of the Ordinance 5 of 1986 envisages that "notwithstand-
ing anything to the contrary contained in any law, rule instrument, agree-
ment or contract or in any judgment, decree or order of any Court or E
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 con-
travenes the provisions of this Ordinance or abets the contravention there- F
of, 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 respondents lessees. After conducting the investigation the charge
sheet was filed by the police against seven persons including the aforesaid G
three Jessee-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, H
    242                   SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A this appeal by special leave.
         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 D.F.O., Khojaria and Chowdhary
  Girdhari Lal have died. Therefore, the prosecution against them stands
B abated. The question is : whether prima facie case has been made out
  against the respondents? Shri D.D. Thakur, learned senior counsel appear-
  ing 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 the
  Ordinance 5 of 1986 or the Act which was quashed by the High Court or
C the Act No. 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 con-
   sideration the averments made in the charge-sheet. It is now settled law
   that the charge-sheet constitutes prima fade evidence constituting the
D 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
B reconsider the matter and dispose it of 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.

          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
F    Court to dispose it of as expeditiously as possible within three months from
     the date of the receipt of this Order.

     T.N.A.                                                     Appeal allowed.