Vivek Singh Thakur, J.
1. The following question, referred to the Larger Bench by Single Bench of this Court vide order dated 11.11.2025 passed in Criminal Appeal No.220 of 2014, has been assigned by the Hon’ble the Chief Justice to this Division Bench:-
“Whether the offence punishable under Section 42 of the Indian Forest Act read with Rules 11 and 20 of the H.P. Forest Produce Transit (Land Routes), Rules, is non-cognisable?”
2. In judgment dated 11.05.2009 passed by learned Single Judge of this Court in Criminal Appeal No.160 of 2002 titled as ‘State of H.P. vs. Sat Pal Singh @ Satta and Anr. along with connected appeal’, Latest HLJ 2009 (HP) 732, it was held as under:-
“5. The offences under Sections 41 and 42 of the Indian Forest Act is punishable with imprisonment for a period of two years and with fine, which may extend to Rs.5,000/-, whereas the offence under Section 4 of the Land Preservation Act, 1978 is punishable with imprisonment for a period of six months and the offence under Section 181 of the Motor Vehicles Act is punishable with three years imprisonment or fine and under Section 192 for one year and fine.
Undisputedly, the above offences are non-cognizable, as per Schedule-II of the Code.”
3. The aforesaid finding has been followed in numerous judgments passed by this Court, including judgment dated 05.09.2024 passed by learned Single Judge, who has made present reference, in Criminal Appeal No.28 of 2012 titled as ‘State of Himachal Pradesh vs. Pawan Kumar’, 2024:HHC:7934.
4. Learned Single Judge noticed the observation made in judgment passed by learned Single Judge of Tripura High Court in Abdul Aziz vs. Union Territory of Tripura, 1963 Criminal Law Journal 558, declaring the offence under the Indian Forest Act, 1927, a cognizable offence, which reads as under:-
“4. The learned Sessions Judge’s statement that the offence was a non-bailable offence was wrong. The offence for which the petitioner was sought to be arrested by P.W. 2 was an offence u/s 33(1(a) of the Indian Forest Act. Section 64 of the said Act gave the power to any forest officer or police officer to arrest any person reasonably suspected to have been concerned in any forest offence punishable with imprisonment for one month or upwards and this can be done without a warrant. Hence, the offence u/s 33(1)(a) was a cognizable offence. But Section 65 of the said Act shows that any person arrested u/s 64 could be releases on his executing a bond to appear before a magistrate. Hence, it is clear that the offence was not a non bailable offence. It follows that a private person cannot arrest u/s 59 Cr.P.C. for a forest offence.”
5. Learned Single Judge, noticing the conflict of views in the judgments passed in Abdul Aziz’s case (supra) and Satpal Singh’s case (supra), and also expressing the opinion that provisions of Section 64 of the Forest Act were not brought to the notice of the Court at the time of deciding Satpal Singh’s case (supra), has observed that the judgment in Satpal Singh’s case (supra) requires reconsideration.
6. Section 42 of the Indian Forest Act provides penalty for breach of Rules made under Section 41 of the Indian Forest Act. Sections 41 and 42 of Indian Forest Act which read as under:-
“41. Power to make rules to regulate transit of forest produce.
(1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest-produce in transit by land or water, is vested in the [State Government], and it may make rules to regulate the transit of all timber and other forest produce.
(2) In particular and without prejudice to the generality of the foregoing power such rules may—
(a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within [the State];
(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same, or otherwise than in accordance with the conditions of such pass;
(c) provide for the issue, production and return of such passes and for the payment of fees therefore;
(d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is reason to believe that any money is payable to the [Government] on account of the price thereof, or on account of any duty, fee, royalty or charge due thereon, or, to which it is desirable for the purposes of this Act to affix a mark;
(e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge of it for examination, or for the payment of such money, or in order that such marks may be affixed to it, and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots;
(f) prohibit the closing up or obstructing of the channel or banks of any river used for the transit of timber or other forest-produce, and the throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed;
(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such prevention or removal from the person whose acts or negligence necessitated the same;
(h) prohibit absolutely or subject to conditions, within specified local limits, the establishment of saw-pits, the converting, cutting, burning, concealing or making of timber, the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or other implements used for marking timber;
(i) regulate the use of property marks for timber, and the registration of such marks; prescribe the time for which such registration shall hold good; limit the number of such marks that may be registered by any one person, and provide for the levy of fees for such registration.
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42. Penalty for breach of rules made under section 41.—
(1) The [State Government] may by such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to six months, or fine which may extend to five hundred rupees, or both.
(2) Such rules may provide that penalties which are double of those mentioned in sub-section (1) may be inflicted in cases where the offence is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or where the offender has been previously convicted of a like offence.”
7. For adjudication of issue involved in present reference, provisions of Section 2(3), 64 and 65 of the Indian Forest Act are also relevant to be considered, which read as under:-
2. Interpretation clause.—In this Act, unless there is anything repugnant in the subject or context, —
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(3) “forest-offence” means an offence punishable under this Act or under any rule made thereunder;
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64. Power to arrest without warrant.—
(1) Any Forest-officer or Police-officer may, without orders from a Magistrate and without a warrant, arrest any person against whom a reasonable suspicion exists of his having been concerned in any forest-offence punishable with imprisonment for one month or upwards.
(2) Every officer making an arrest under this section shall, without unnecessary delay and subject to the provisions of this Act as to release on bond, take or send the person arrested before the Magistrate having jurisdiction in the case, or to the officer in charge of the nearest police-station.
(3) Nothing in this section shall be deemed to authorise such arrest for any act which is an offence under Chapter IV unless such act has been prohibited under clause (c) of section 30.
65. Power to release on a bond a person arrested.—Any Forest-officer of a rank not interior to that of a Ranger, who, or whose subordinate, has arrested any person under the provisions of section 64, may release such person on his executing a bond to appear, if and when so required, before the Magistrate having jurisdiction in the case, or before the officer in charge of the nearest police station.
8. Section 2(1)(c) and 2(1)(g) of the Bharatiya Nagarik Suraksha Sanhita, 2023, (in short ‘BNSS’), [earlier Section 2(a) and 2(c) of Code of Criminal Procedure,1973 (in short ‘Cr.P.C.’)], provide definitions of ‘bailable offence’ and ‘cognizable offence’, which read as under:-
“2. Definitions. (1) In this Sanhita, unless the context otherwise requires,—
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(c) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence;
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(g) “cognizable offence” means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;”
9. For comparison, corresponding provisions of Cr.P.C., which are Section 2(a) and 2(c) of the Cr.P.C., are being reproduced as under:-
2. Definitions.—In this Code, unless the context otherwise requires,—
(a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence;
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(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;”
10. Rules 11 and 20 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978, (in short ‘HP Transit Rules, 1978’) referred in Reference are also relevant to be reproduced, which read as under:-
Rule - 11. Prohibition on transport of forest produce:-
(1) No person shall transport or cause to be transported any forest produce except kuth, or forest produce obtained from poplar, Albizzia, Willow, Bahunia, Eucalyptus and Mulbery by land routes, without obtaining pass ( annexure "A") from the concerned Divisional Officer or any other officer so authorized.
(2) All Block Officers of Territorial, Wildlife Forest Divisions Himachal Pradesh are authorized to issue export permit (Rawana) for carriage of resin stored in temporary depot in the Forest up to road side depot of the Himachal Pradesh State Forest Corporation. (2) No person shall transport or cause to be transported any timber for conversion for sawing or for sale enroute.
(3) No person shall transport or cause to be transported any timber except fire-wood, pulpwood and bamboos unless the timber is properly affixed with one export hammer mark by the forest officer authorized by the conservator of forests concerned.
(a) The authority issuing the pass shall prescribed a route by which alone the forest produce may be transported for export outside Himachal Pradesh in such a manner that the forest produce crosses through one of the following barriers established by the Excise and Taxation Department:-
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TABLE
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Provided that such authority shall also prescribe the check post(s) where the forest produce shall be compulsorily checked enroute.
(b) In case the produce is not to be exported outside the territory of Himachal Pradesh the authority issuing the pass shall prescribed the rout by which alone the forest produce may be transported and shall also determine the check post(s) where it shall be compulsorily checked.
(4) The issuing authority shall also determine the other conditions subject to which the pass shall be issued and shall also determine the period for which the pass shall remain valid. However, the validity of any pass shall under no circumstances exceed a period of six months including any extension(s) allowed. A fee of Rs.5 shall be livable for the issue of such a pass.
(5) "The issuing authority shall also determine the other conditions subject to which the pass shall be issued and shall also determine the period for which the pass shall remain valid. However, the validity of the pass shall under no circumstances exceed a period of six months including any extension(s) allowed. A fee of Rs.25/- shall be livable for the issue of such a pass except in case of medicinal plants for which the fee shall be as per Annexure "D" ""
Provided further that no timber or other forest produce from any forest depot or intermediate depot or first station/ depot of dispatch shall be loaded in vehicles/ trolleys / bullock carts etc. The Divisional Forest Officer concerned may further impose any restrictions(s) if so warranted for controlling the movement of the forest produce after sun set and before sunrise.
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Rule - 20. Penalty etc. for breach of rules :-
Any person who contravenes these rules shall be liable to imprisonment for a term, which may extend to 15two years or with fine, which may extend to Rs.5000 or with both and the forest produce being transported may also be seized and dealt with under the provisions of the Indian Forest Act. Provided that the penalties will be doubled in cases where the offence has been committed after sunset or before sunrise, or after resistance to the lawful authority of where the offender has been previously convicted of like offence.”
11. The HP Transit Rules, 1978 have been replaced by the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 2013, (in short ‘HP Transit Rules, 2013’). Rules 11 and 20 of HP Transit Rules, 1978, are now Rules 8 and 18 of HP Transit Rules, 2013. For comparison, corresponding provisions of Rules 8 and 18 of HP Transit Rules, 2013, are being reproduced as under:-
“8. Prohibition on transport of Forest Produce.
(1) No person shall transport or cause to be transported any forest produce, except that obtained from plant species specified in and obtained in accordance with provisions contained in Schedule-I of Annexure-D by land routes, without obtaining pass (Annexure-A) from the concerned Divisional Forest Officer or any officer or person so authorized.
Explanation for the purposes of rule 8 - Divisional Forest Officer shall include an officer holding the charge of the Division from where the forest produce has been , extracted under contractual agreement.
(2) No such pass shall be issued in case of forest produce obtained from species declared as prohibited or banned for collection or harvesting under any law (Act, Rule or Order) applicable in the State except when such collection is carried out as per specific provisions provided in that Act, Rule or Order.
(3) No person shall transport or cause to be transported any timber for conversion for sawing or for sale en route.
(4) No person shall transport or cause to be transported any timber except firewood, pulpwood, bamboo and that obtained from plant species listed in and obtained in accordance with provisions contained in Schedule - 'I' of Annexure-D unless the timber is properly affixed with an export hammer mark by the forest officer authorized by the Conservator of Forests concerned.
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18. Penalty for breach of rules.- Any person who contravene these rules shall be liable to imprisonment for a term which may extend to six months or with fine which may extend to rupees Five thousand or with both and the forest produce being transported may also be seized and dealt with under the provisions of the Indian Forest Act:
Provided that the penalties will be doubled in cases where the offence has been committed after sun-set or before sun-rise, or after resistance to the lawful authority or where the offender has been previously convicted for similar offence.”
12. Imprisonment as penalty under Section 42 of the Indian Forest Act may extend to six months, which may be doubled in the circumstances provided under Section 42(2) of the Indian Forest Act.
13. Section 64 of the Indian Forest Act empowers any forest officer or police officer to arrest any person for commission or suspicion of commission of any offence punishable with imprisonment of one month or upwards.
14. In view of definition of ‘cognizable offence’, for commission or suspicion of commission of an offence, a police officer can arrest without warrant, the offence punishable under Section 42 of the Indian Forest Act read with Rules 11 and 20 of the HP Transit Rules, 1978 [now Rules 8 and 18 of HP Transit Rules, 2013], is a cognizable offence.
15. Section 2(1)(c) of BNSS provides ‘bailable offence’, which provides that not only the offence shown as bailable in First Schedule of BNSS, but also the offence which is made bailable by any other law for the time being in force.
16. Similarly, ‘cognizable offence’ also means, as provided in Rule 2(1)(g) of BNSS, that not only the offence which has been made cognizable in accordance with First Schedule of BNSS, but also the offence under any other law for the time being in force, wherein police officer may arrest without warrant.
17. In view of Section 64(2) and 65 of the Indian Forest Act, the offence punishable under Section 42 of the Indian Forest Act read with Rules 11 and 20 of HP Transit Rules, 1978 [now Rules 8 and 18 of HP Transit Rules, 2013], is bailable, but cognizable offence.
18. It is also apt to record that in First Schedule of BNSS, there are large number of cases, which are though bailable, but cognizable. Some of such examples are Section 58(b), 59(c), 60(b), 67, 72(1), 73, 77, 79, 93, 94, 106(1), 117(2), 120(1), 122(1), 122(2), 125, 125(a), 125(b), 126(2), 127(2), 127(3), 127(5), 127(6), 127(7), 127(8, 134, 137(2), 146 and 157 of BNSS.
19. Considering the provisions of the Indian Forest Act, HP Transit Rules, 1978 (now HP Transit Rules, 2013), BNSS and in view of above discussion, we are of the considered opinion that offence punishable under Section 42 of the Forest Act read with Rules 11 and 20 of HP Transit Rules, 1978 [now Rules 8 and 18 of HP Transit Rules, 2013], is a cognizable offence.
20. In view of above, it is observed that view in Satpal Singh’s case (supra) is not a correct view and it does not lay down a good law. All other judgments passed following the same principle of law also does not propound good law and thus, are liable to be ignored, whereas, judgment in Abdul Aziz’s case (supra) is in consonance with relevant provisions of law.
21. Reference is answered in aforesaid terms.
22. Main appeal be placed before Hon’ble the Chief Justice for listing before appropriate Bench for further adjudication.
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