IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 853 of 2005
Kanhaiya Lal ... ... Petitioner
Vs.
The State of Jharkhand ... ... Opposite Parties
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner : Mr. Anil Kumar, Advocate
For the Sate : Mr. J. Mahto, APP
C.A.V. ON 24.08.2009 Delivered On 11/09/2009
3/ 11/09/2009
This is an application for quashing the entire criminal
proceeding in connection with G. Case No. 231 of 2005 for alleged
offence under Sections 33, 41 and 42 of the Indian Forest Act
pending in the court of Chief Judicial Magistrate, Hazaribagh,
(now pending in the court of K. Pattadar, Judicial Magistrate, 1st
Class, Hazaribagh). The petitioner has also filed an Interlocutory
Application whereby he challenged the order dated 17.06.2006
passed by Chief Judicial Magistrate, Hazaribagh in G. Case No.
231 of 2005 corresponding to T.R. Case No. 232 of 2009, whereby
and whereunder he took cognizance of the offence under Sections
33, 41 and 42 of the Indian Forest Act.
2 The case of prosecution in brief is that on
14.05.2005, the complainant, Forest Range Officer of Gola Range
had intercepted a truck bearing no. PB-07B 3966 loaded with
coal. It is further alleged that after seeing the complainant, the
driver fled away however, khalasi of the truck was arrested and
on demand he could not produce any document relating to transit
of coal. Accordingly, the coal was seized and an offence report
was sent to Chief Judicial Magistrate, Hazaribagh. It then
appears that after obtaining the sanction from the Divisional
Forest Officer, Ramgarh Forest Division, the prosecution report
was submitted in the court of Chief Judicial Magistrate,
Hazaribagh, who, vide order dated 17.06.2006, took cognizance of
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the offences under Sections 33, 41 and 42 of the Indian Forest
Act.
3. It is submitted by Sri Anil Kumar, learned counsel for
the petitioner that from perusal of offence report as well as the
prosecution report, no case under sections 33, 41 and 42 of the
Indian Forest Act is made out. Hence, the entire criminal
proceeding including the order taking cognizance, is an abuse of
the process of the court. Hence, the same cannot be sustained by
this court.
4. Learned Additional P.P. however submits that
petitioner had not followed transit rules for transporting the coal
and therefore, he had violated the provisions of Forest Act.
Hence, there is no illegality in the prosecution of accused
petitioner.
5. Having heard the submission, I have gone through
the record of the case. Admittedly, the prosecution report has
been filed under Sections 33, 41 and 42 of the Indian Forest Act.
From perusal of Section 33 of the Indian Forest Act, it appears
that it prescribes punishment to any person who contravenes the
notification under Section 30 or rule framed under Section 32 of
the Indian Forest Act. Section 30 and Section 32 of the Indian
Forest Act run hereinunder:
“30. Power to issue notification reserving trees,
etc. – The State Government may, by notification in
the Official Gazette,-
(a) declare any trees or class of trees in a protected
forest to be reserved from a date fixed by the
notification;
(b) declare that any portion of such forest specified in
the notification shall be closed for such term, not
exceeding thirty years, as the State Government
thinks fit, and that the rights of private persons, if
any, over such portion shall be suspended during
such term provided that the remainder of such forest
be sufficient, and in a locality reasonably convenient,
for the due exercise of the right suspended in the
portion so closed; or
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(c) prohibit, from a date fixed as aforesaid, the
quarrying of stone, or the burning of lime or charcoal,
or the collection or subjection to any manufacturing
process, or removal of, any forest-produce in any
such forest, and the breaking up or clearing for
cultivation, for building, for herding cattle or for any
other purpose, of any land in any such forest.
32. Power to make rules for protected forests.-
The State Government may make rules to regulate
the following matters, namely : –
(a) the cutting, sawing, conversion and removal of
trees and timber, and the collection, manufacturing
and removal of forest-produce, from protected forest;
(b) the granting of licences to the inhabitants of
towns and villages in the vicinity of protected forests
to take trees, timber or other forest-produce for their
own use, and the production and return of such
licences by such persons;
(c) the granting of licences to persons feeling or
removing trees or timber or other forest-produce from
such forests for the purposes of trade, and the
production and return of such licences by such
persons;
(d) the payments, if any, to be made by the persons
mentioned in clause (b) and (c) for permission to cut
such trees, or to collect and remove such timber or
other forest-produce;
(e) the other payments, if any to be made by them in
respect of such trees, timber and produce, and the
places where such payment shall be made;
(f) the examination of forest-produce passing out of
such forests;
(g) the clearing and breaking up of land for
cultivation or other purposes in such forests;
(h) the protection from fire of timber lying in such
forests and of trees reserved under section 30;
(i) the cutting of grass and posturing of cattle in such
forests;
(j) hunting, shooting, fishing, poisoning water and
settling traps or snares in such forests, and the
killing or catching of elephants in such forests in
areas in which the Elephants Preservation Act, 1879
(6 of 1879) is not in force;
(k) the protection and management of any portion of
a forest closed under Section 30; and
(l) the exercise of rights referred to in Section 29.”
Section 41 of the Indian Forest Act gives power to
make rule to regulate transit of forest produce and Section 42 of
the Indian Forest Act prescribes punishment for violation of
transit rules made under Section 41 of the Indian Forest Act.
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6. Thus, from the plain reading of Sections 30, 32 and
41 of the Indian Forest Act, it is clear that under the said Act, the
State Government have no power to issue any notification or
frame rule for transit of coal. From perusal of prosecution report,
it is clear that there is no allegation against the petitioner or any
other accused persons that they were mining the coal in forest
area. Admittedly, the coal in question is not a forest produce.
Thus, the rule for transit of Forest produce framed under Section
41 of the Indian Forest Act has no application in the case of
transit of coal. Under the said circumstance, Section 42 of Indian
Forest Act has no application.
7. As noticed above, there is no notification or rule
framed by the State Government under Sections 30 and 32 of the
Indian Forest Act for transportation of coal. Therefore Section 33
will also not apply. Thus, if the allegation made in the prosecution
report is taken to be true on its face value, no offence under
Sections 33, 41 and 42 of the Indian Forest Act is made out.
8. Under the said circumstances, I find that initiation of a
criminal proceeding under the aforesaid sections of the Indian
Forest Act is an abuse of the process of the court which could not
be sustained.
9. In the result, this application is allowed. Consequently,
the entire criminal proceeding as well as impugned order dated
17.06.2006 in connection with G. Case No. 231 of 2005 pending in
the court of K. Pattadar, Judicial Magistrate, 1st Class, Hazaribagh,
is hereby quashed.
(Prashant Kumar, J.)
Sunil/N.A.F.R.