Case Note & Summary
The petitioner, Frank Augustin Lopes, filed a writ petition before the Bombay High Court challenging the registration of FIR No. 1189 of 2017 at Nala Sopara Police Station for an offence under Section 21 of the Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975 (Maharashtra Trees Act). The petitioner contended that the offence under Section 21 is non-cognizable as the Act does not specify it as cognizable, and therefore the police could not register an FIR or investigate without prior permission from a Magistrate under Section 155(2) of the Code of Criminal Procedure, 1973 (CrPC). The respondent No.2, Surendra Pandit Patil, had lodged a complaint regarding tree felling. The State, represented by the APP, did not dispute the facts but argued that the court should not interfere given the environmental impact. The court examined Section 21 of the Maharashtra Trees Act, which prescribes a fine of not less than Rs.1,000 extending up to Rs.5,000 and imprisonment of not less than one week extending up to one year. The Act does not contain any provision declaring the offence as cognizable or non-cognizable, nor does it prescribe any special procedure. Section 2(h) of the Act provides that words and expressions not defined therein shall have the meanings assigned to them in the relevant Act, which in this case is the CrPC. Under the CrPC, an offence punishable with imprisonment up to one year is generally non-cognizable unless specifically made cognizable. Since the Maharashtra Trees Act does not declare the offence as cognizable, it is non-cognizable. Consequently, the police could not investigate without a Magistrate's order under Section 155(2) CrPC. The court relied on its earlier decision in Mukesh Laxman Das Talreja v. Inspector of Police, 2006(2) Bom.C.R. (Cri.) 76, which held that investigation of a non-cognizable offence without such permission is illegal. The court quashed the FIR and all proceedings arising therefrom.
Headnote
A) Criminal Procedure Code - Non-Cognizable Offence - Investigation Without Magistrate's Permission - Section 155(2) CrPC - Offence under Section 21 of Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975 is punishable with imprisonment up to one year and fine, but the Act does not declare it cognizable; hence it is non-cognizable. Police cannot investigate without prior order of Magistrate under Section 155(2) CrPC. FIR registered and investigation conducted without such permission is illegal and liable to be quashed (Paras 4-6).
Issue of Consideration
Whether the offence under Section 21 of the Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975 is cognizable or non-cognizable, and whether the FIR registered and investigation conducted without compliance with Section 155(2) of CrPC is valid.
Final Decision
The petition is allowed. The FIR and all proceedings arising therefrom are quashed.
Law Points
- Non-cognizable offence
- Section 155(2) CrPC
- investigation without permission
- Maharashtra Trees Act 1975
- Section 21
- quashing of FIR
Case Details
2018 LawText (BOM) (12) 174
Writ Petition No. 1189 of 2017
B. P. Dharmadhikari, Sarang V. Kotwal
Mr. Ganesh Bhujbal (for Petitioner), Mr. F.R. Shaikh, APP (for Respondent-State)
State of Maharashtra & Shri Surendra Pandit Patil
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the registration of FIR and investigation for an offence under Section 21 of the Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975.
Remedy Sought
Quashing of FIR and all proceedings on the ground that the offence is non-cognizable and investigation was conducted without prior permission of Magistrate under Section 155(2) CrPC.
Filing Reason
The petitioner was accused of tree felling under Section 21 of the Maharashtra Trees Act, which is a non-cognizable offence, but the police registered an FIR and investigated without obtaining prior order from a Magistrate.
Previous Decisions
An interim order dated 17 March 2017 was passed directing that investigation may continue but chargesheet shall not be filed against the petitioner.
Issues
Whether the offence under Section 21 of the Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975 is cognizable or non-cognizable?
Whether the FIR registered and investigation conducted without compliance with Section 155(2) of CrPC is valid and sustainable?
Submissions/Arguments
Petitioner argued that Section 21 of the Maharashtra Trees Act does not declare the offence as cognizable, hence it is non-cognizable, and the police could not investigate without a Magistrate's order under Section 155(2) CrPC.
Respondent-State (APP) did not dispute the facts but submitted that the court should not intervene due to the environmental impact of the offence.
Ratio Decidendi
An offence under Section 21 of the Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975 is non-cognizable as the Act does not declare it cognizable. Police cannot investigate such an offence without prior permission of a Magistrate under Section 155(2) CrPC. Investigation conducted without such permission is illegal and the FIR is liable to be quashed.
Judgment Excerpts
Section 21 of the Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975 makes the offence of tree felling 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.
It therefore follows that prosecution for offences under Section 21 has to be in consonance with Cr.P.C 1973.
We need not delve more on this controversy because impact of such cognizance and investigation without necessary permission in terms of Section 155 (2) of Cr.P.C is looked into by this Court in case of Mukesh Laxman Das Talreja Vs Inspector of Police – 2006(2) Bom.C.R. (Cri.) 76
Procedural History
The petitioner filed Writ Petition No. 1189 of 2017 before the Bombay High Court challenging FIR registered at Nala Sopara Police Station for offence under Section 21 of the Maharashtra Trees Act. On 17 March 2017, the court issued notice and granted ad-interim relief directing that investigation may continue but chargesheet shall not be filed. After hearing the parties, the court delivered final judgment on 19 December 2018, quashing the FIR and proceedings.
Acts & Sections
- Maharashtra (Urban Areas) Protection and Preservation of Trees) Act, 1975: 21, 2(h)
- Code of Criminal Procedure, 1973: 155(2)
