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2012 DIGILAW 1575 (JHR)

Daso Ram v. State of Jharkhand

2012-11-01

H.C.MISHRA

body2012
ORDER By the Court - Heard learned counsel for the petitioners and learned counsel for the State. 2. Petitioners have challenged the judgment dated 9.5.2003 passed by learned IVth Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 36 of 1999, whereby the appeal filed against the judgment of conviction and order of sentence dated 16.1.1999 passed by Sri Praveen Kr. Sinha learned Judicial Magistrate, 1st Class. Hazaribagh in G. Case No. 590 of 94/T.R. No. 78 of 98/T.R. No. 62 of 99 convicting and sentencing the petitioners for the offence under Section 33 of the Indian Forest Act has been dismissed by the learned Appellate Court below. 3. The judgments passed by the Courts below show that the petitioners were put to trial for the offence under Section 33 of the Indian Forest Act on the allegation that on 17.10.1994 the petitioners were found encroaching the protected forest land. It appears from the judgments passed by the Courts below that four witnesses were examined in the Court below, who are the forest officials and they have supported the prosecution case. The documents were also proved by the prosecution, including Exhibit-5, which is the notification issued by the State Government in exercise of powers under Section 29 of the Indian Forest Act, whereby the land in question was notified to be the protected forest. The said notification has been issued on 2nd of January, 1953. On the basis of the evidence brought on record the Court below has found the appellants guilty for the offence under Section 33 of the Indian Forest Act and has convicted them for the same. Upon hearing on the point of sentence the trial Court sentenced the petitioners to undergo R.I. for one year each. The appeal filed against the said judgment was also dismissed by the Appellate Court below. 4. Learned counsel for the petitioners has taken a short point in this revision. Learned counsel has submitted that the notification issued by the State Government notifying the land in question to be protected forest, was issued on 2nd January, 1953, which was proved by the prosecution as Exhibit-5. It has been submitted that the life of this notification is only 30 years and the date of occurrence being 17.10.1994, the said notification had already lost its force. It has been submitted that the life of this notification is only 30 years and the date of occurrence being 17.10.1994, the said notification had already lost its force. Learned counsel has submitted that nothing was proved in the Court below to show that any further notification was issued by the State Government in exercise of 'powers under Section 29 of the Indian Forest Act. Learned counsel accordingly, submitted that no offence can be said to be made out against the petitioners. Learned counsel has placed reliance upon the decision of this Court in Anup Kumar v. State of Jharkhand. reported in (2012) 2 East Cr C 21, wherein it has been held that upon expiry of the notification issued under Section 29 of the Indian Forest Act, and there being nothing to show that any further notification had been issued in terms of Section 30(b) of the, Indian Forest Act, the land in question cannot be held to be the forest land and offence cannot be said to have been committed under the Indian Forest Act. Placing reliance upon this decision, learned counsel for the petitioners has submitted that the impugned judgments passed by the Courts below are absolutely illegal and the same cannot be sustained in the eyes of law. 5. Learned counsel for the State on the other hand has opposed the prayer and submitted that the conviction and sentence of the petitioners are based on the cogent evidence adduced by the prosecution in the trial Court below and same cannot be interfered with in the revisional jurisdiction. 6. Having heard learned counsels for both the sides and upon going through the record, I find force in the submission of the learned counsel for the petitioners. The Exhibit-5 proved by the prosecution clearly shows that the same was issued on 2nd January, 1953. whereby the land in question, on which it is alleged that the petitioners were making the encroachment was declared to be protected forest. The life of this notification expired upon the expiry of 30 years in the year 1983. The Exhibit-5 proved by the prosecution clearly shows that the same was issued on 2nd January, 1953. whereby the land in question, on which it is alleged that the petitioners were making the encroachment was declared to be protected forest. The life of this notification expired upon the expiry of 30 years in the year 1983. Thereafter nothing has been brought on record by the prosecution to show that any further notification was issued in terms of Section 30(b) of the Indian Forest Act and in that view of the matter upon expiry of the notification the land in question cannot be termed to be the protected forest and consequently no offence can be said to be made out against the petitioners under the Indian Forest Act on the alleged date of occurrence i.e. on 17.10.1994. The facts of this case is fully covered by the decision of this Court in Anup Kumar's case (supra). Accordingly, the judgment of conviction and sentence passed by the trial Court below against the petitioners cannot be sustained in the eyes of law. 7. In view of the aforementioned discussions the judgment dated 16.1.1999 passed by Sri Praveen Kumar Sinha. learned Judicial Magistrate, 1st Class Hazaribagh in G. Case No. 590 of 1994/T.R No. 78 of 1994/T.R No. 62 of 1999 as also the judgment dated 9.5.2003 passed by the learned Additional Sessions Judge-IV. Hazaribagh in Cr. Appeal No. 36 of 99 are hereby set aside. The petitioners are accordingly acquitted of the acquisition. The petitioners are on bail and they are discharged from the liabilities of their respective bail bonds. 8. This revision application is accordingly allowed. Let the Lower Court Records be sent back forthwith. Revision allowed.