Cr. M.P. No. 744 of 2006
With
Cr. M.P. No. 1046 of 2002
With
Cr. M.P. No. 1104 of 2002
With
Cr. M.P. No. 738 of 2006
With
Cr. M.P. No. 741 of 2006
With
Cr. M.P. No. 420 of 2005
In the matter of an applications under Section 482 of the Code of Criminal
Procedure, 1973
----
Mangleshwar Dubey …. …. … … Petitioner (In all cases)
Versus
1. The State of Jharkhand
2. The District Forest Officer,
Forest Division (North) District Daltonganj Opposite parties(In all cases)
….
PRESENT
THE HON’BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner : M/s Rajeev Ranjan Tiwary, Vishal Kumar Tiwari.
Saket Upadhyay, Amit Kumar Tiwary, (In all cases)
For the State : Mr. S.N. Rajgarhia, Additional PP (In all cases)
….
By Court In all the aforesaid cases, common questions of law arose,
thus are heard together and dispose of by this order.
2. It appears that in all the above cases, learned Chief Judicial
Magistrate, Daltonganj took cognizance against petitioner for the offences under
Sections 33 and 63 of the Indian Forest Act and which are under challenge in
these applications.
3. It is submitted by Sri Rajeev Ranjan Tiwari, learned counsel
for petitioner in all cases, that lands in question are not forest lands, therefore,
provisions of Indian Forest Act have no application. It is further submitted that
petitioner is in possession of the said lands from long ago and by virtue of
aforesaid possession they perfected their title over the same. It is submitted that
at the earlier occasion also, Forest Department prosecuted petitioner on similar
allegation, but in that case, after full fledged trial, petitioner was acquitted by
Judicial Magistrate, 1st Class. It is submitted that in present cases petitioner
implicated with malafide intention with a view to harass him. Accordingly, it is
submitted that impugned order cannot be sustained.
4. Sri S.N. Rajgarhia, learned Additional PP appears on behalf
of the State submits that in these cases, counter-affidavits were filed by State
and in the said counter-affidavits notification issued under Section 29 of the
Indian Forest Act annexed. He submits that aforesaid notification reveals that
plot numbers 309,310,314 and 315 of Choura forest are notified as protected
forest. He further submits that in the prosecution reports, it is alleged that
petitioner ploughed aforesaid lands for cultivation purpose and he confessed his
guilt before the Forest Guard Bishrampur. It is further submitted that in the
earlier case, petitioner was acquitted, because Forest Department did not file
notification to show that Choura Forest is a protected forest, thus acquittal of
petitioner in the earlier case was on a technical ground which had no bearing in
the present case.
5. Having heard the submissions, I have gone through the
record of the case. From perusal of prosecution reports of the aforesaid cases, it
appears that on different dates, petitioner ploughed forest land of Choura forest
for the purpose of cultivation. It is also alleged that on query made by forest
guard, petitioner disclosed that he had filed Survey Appeal claiming therein that
he is possession of said lands and till the disposal of the said appeal, he will
continue to show that he is in his possession of said lands. It is alleged that
lands pertaining to plot numbers 309,310,314 and 315 of Choura Forest are
forest land, thus ploughing of said lands for the purpose of cultivation is an
offence under Section 33 of the Indian Forest Act. It is worth mentioning that
petitioner made averments that he is in possession of said lands and with a view
to show his possession, he has annexed photocopy of Banda Purcha and
different rent receipts. However petitioner did not enclose any document to show
his title over said lands. On the other hand in the counter-affidavit State
annexed Gazette Notification dated 19th of July 1955 issued under Section 29 of
the Indian Forest Act which shows that plot numbers 309,310,314 and 315 of
Choura Forest are protected forest. As per Section 33 of the Indian Forest Act, if
any person contravenes the notification under Section 30 or Rule made under
Section 32 of the Indian Forest Act, then he is liable to be punished. Section 32
of the Indian Forest Act gives power to the State Government to frame Rule
preventing any person from cultivating or breaking forest land for cultivation or
other purpose. It is worth mentioning that in pursuance of Section 32 of the
Indian Forest Act, a Rule had already framed by the State Government,
preventing any person from clearing and/or breaking the lands for cultivation
purpose. Under the said circumstance, in view of allegation made in prosecution
report, prima-facie an offence under Section 33 of the Indian Forest Act is made
out against petitioner.
6. It is true that on an earlier occasion, petitioner was acquitted
by a competent Court on similar charge. But from perusal of paragraph 6 of the
aforesaid judgment(Annexure-9), it is clear that in that case, notification showing
that land in question is a protected forest had not been produced, because of
that petitioner was acquitted. Thus I find that in the earlier case, petitioner was
acquitted on technical ground. Thus judgment of said case has no bearing on
the merits of these cases.
7. Sri Tiwari also pointed out that offence under Section 63 of
the Indian Forest Act is not made out. From perusal of prosecution reports of
present cases, I find substance in submission of Sri Tiwari. There is nothing in
the prosecution reports to show that petitioner tempered, counterfeit, deface or
alter marks of any tree. Thus, offence under Section 63 of the Indian Forest Act
is not made out. Under the said circumstance, the learned court below is
directed to keep the aforesaid observation in mind at the time of explaining the
substance of accusation and/or framing of charge.
6. In view of the discussions made above, I am not inclined to
interfere with impugned orders. With the aforesaid observations and directions,
these applications are disposed of.
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 15.09.2011
Binit/NAFR