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2013 DIGILAW 518 (UTT)

State of Uttaranchal v. Gaje Pal Singh

2013-08-07

U.C.DHYANI

body2013
Judgment U.C. Dhyani, J. Since the factual matrix and the principles of law governing the field in the above Government Appeals are the same, therefore, they are being decided by this common judgment and order for the sake of brevity and convenience. 2) Government Appeal No. 162 of 2002, captioned as State vs. Gaje Pal Singh and others, is being treated as leading case. 3) Accused-respondents were challaned by Forest Range Officer, Ukhimath Range, Guptkashi for the offences punishable under Section 26(1)(h) of the Indian Forest Act, 1927 and under Sections 27(3) and 29 of the Wild Life (Protection) Act, 1972. Complaints were filed by the Forest Range Officer with the allegations contained therein, that the accused-respondents constructed cowsheds and dwelling houses within the Reserve Forest. Not only the sanctity of the temple was jeopardized, but there was encroachment into the forest land as well as Musk Deer Sanctuary. When the Forest Department directed the accused-respondents to remove the encroachments, they refrained from doing so. The complaints were therefore, instituted for punishing the accused-respondents and for removing the unauthorized constructions made in the Reserve Forest. 4) Accused-respondents were summoned to face the trial. Their statements were taken. They pleaded not guilty to the allegations and claimed trial. They stated that they have not made unauthorized constructions in the Reserve Forest. They also stated that the constructions were raised by their ancestors. 5) PW1 Nathi Singh, Forest Guard, and PW2 Rajendra Prasad Dimri, Forester, were examined on behalf of the complainant-Forest Department. Incriminating evidence was put to the accused-respondents under Section 313 of Cr.P.C., in reply to which they said that they did not construct cowsheds/dwelling houses in the Reserve Forest. They also said that the constructions in question were raised before issuance of Notification declaring the said land as Reserve Forest. It was reiterated by them that those constructions were raised by their ancestors. No evidence was given in defence. 6) After considering the evidence on record, learned Judicial Magistrate, Rudraprayag, vide impugned judgment and order, exonerated the accused-respondents of the allegations levelled against them. Aggrieved against the impugned judgments and orders, present Government Appeals were preferred by the State. 7) The question before learned trial court was, as to whether the accused-respondents raised constructions, and thereby made encroachments, either in the form of cowsheds or dwelling houses, in the Reserved Forest or not? Aggrieved against the impugned judgments and orders, present Government Appeals were preferred by the State. 7) The question before learned trial court was, as to whether the accused-respondents raised constructions, and thereby made encroachments, either in the form of cowsheds or dwelling houses, in the Reserved Forest or not? 8) PW1 inspected the place of alleged unauthorized construction and prepared Forest Form H-2. PW2 also inspected the place of alleged unauthorized construction and prepared his inquiry report alongwith site plan. PW1 said that he found encroachments/unauthorized constructions raised by the accused-respondents in the Reserve Forest. The accused-respondents were asked to remove the constructions, but they refused to do so. PW1 proved Forest Form H-2. PW1 also said that he was posted in the Forest Range Office since 19th September 1998, and also said in his examination-in-chief that he saw the constructions raised by the accused-respondents. He, however, could not divulge the definite date(s) of such constructions. PW2 admitted in the cross-examination that he did not see anybody raising such constructions. Ext. Ka-7 was placed before PW1. Notification dated 10th March, 1920, issued by the Forest Department, Government of United Provinces, indicated certain land specified in the annexed Schedule ‘A’ to the Notification, as Reserve Forest, under the Indian Forest Act (VII of 1878). The period fixed by the Indian Forest Act, 1978, for presentation of claims to rights in the lands annexed thereto expired. Therefore, it was notified vide Notification dated 10th March, 1920, that the villages named in the Schedule shall continue to have the said rights to the extent therein appearing at such seasons, within such portions of the said forest, and such rules, as may from time to time be prescribed by the Local Government. Schedule ‘A’ to the Notification deals with Ukhimath Block. Madhyamaheshwar Temple finds place in the said Notification. Madhyamaheshwar Temple was constructed some 500 years ago, as was admitted by PW1. This Notification was issued in the year 1920. There appears to be some sense in the statements of the accused-respondents that their ancestors raised constructions in the form of cowsheds/dwelling houses on the said land. PW2 also admitted that only Madhyamaheshwar Temple is located in the Reserve Forest, other areas are not included in the Reserve Forest. Ext. Ka-4 is the copy of Madhyamaheshwar in the Madhyamaheshwar Beat. Ext. PW2 also admitted that only Madhyamaheshwar Temple is located in the Reserve Forest, other areas are not included in the Reserve Forest. Ext. Ka-4 is the copy of Madhyamaheshwar in the Madhyamaheshwar Beat. Ext. Ka-4 is the certified copy of the map, being preserved by the Forest Department. 9) PW2 prepared the site plan of the place of alleged encroachment. He proved site plan (Ext. Ka-3) and inquiry report (Ext. Ka-8). In the cross-examination, PW2 was unable to tell the total measurement of the Reserve Forest. PW2 also admitted that he was not empowered to investigate the case under Wild Life (Protection) Act, 1972. A plea was raised that since the constructions were age old, therefore, the complaint was barred by time. A Forester is not empowered to investigate the offences under the Wild Life (Protection) Act, 1972, as per sub-Section (8) of Section 50 of the Wild Life (Protection) Act 1972, which is being reproduced here-in-below for convenience: “50. Power of entry, search, arrest and detention.–(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorized by him in this behalf or the Chief Wild Life Warden or the authoirsed officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,- ………………………………………………….. ………………………………………………….. “50(8). Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf shall have the powers, for purposes of making investigation into any offence against any provision of this Act,- (a) to issue a search warrant; (b) to enforce the attendance of witnesses, (c) to compel the discovery and production of documents and material objects; and (d) to receive and record evidence.” 10) In the instant case the complaints were filed by Forest Range Officer. According to Section 55 of the Wild Life (Protection) Act, 1972, no court shall take cognizance of any offence against this Act except on the complaint of any person other than those who are mentioned in the said Section. According to Section 55 of the Wild Life (Protection) Act, 1972, no court shall take cognizance of any offence against this Act except on the complaint of any person other than those who are mentioned in the said Section. A Forest Range Officer is not authorized to institute the complaint under the Wild Life (Protection) Act, 1972. It will be useful to reproduce here Section 55 of the Act of 1972 for convenience. The same reads as under: “55. Cognizance of offences. –No court shall take cognizance of any offence against this Act except on the complaint of any person other than – (a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or (aa) the Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IVA; or (ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger reserve; or (b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government [subject to such conditions as may be specified by that Government]; or (bb) the officer-in-charge of the zoo in respect of violation of provisions of Section 38J; or (c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the officer authorised as aforesaid.” 11) Although it appears that the constructions were raised by the ancestors of the accused-respondents, but even if it be conceded for the sake of arguments that the encroachments were made later on, even then, the complainant is barred by limitation in view of Section 468 of the Code of Criminal Procedure, 1973. It is made clear that the officials of the Forest Department were unable to show even the tentative dates of the encroachment, whereas the accused-respondents were specific that the constructions were made by their forefathers long ago. PW1 plainly admitted that he did not see anybody encroaching upon the Reserve Forest land. 12) Be that as it may, it could not be proved by PW1 and PW2 that the accused-respondents encroached upon the Reserve Forest land adjacent to Sri Madhyamaheshwar Temple. 13) Learned trial Court has discussed the evidence brought on record by the Forest Department. PW1 plainly admitted that he did not see anybody encroaching upon the Reserve Forest land. 12) Be that as it may, it could not be proved by PW1 and PW2 that the accused-respondents encroached upon the Reserve Forest land adjacent to Sri Madhyamaheshwar Temple. 13) Learned trial Court has discussed the evidence brought on record by the Forest Department. Learned Court below also discussed various provisions of the Indian Forest Act, 1927, the Wild Life (Protection) Act, 1972 and Section 468 of Cr.P.C. to hold that the offences complained of against the accused-respondents were not proved. Learned Judicial Magistrate, therefore, committed no mistake in holding that the Forest Department was unable to prove the guilt against the accused-respondents. The Court below, therefore, committed no mistake in exonerating the accused-respondents of the allegations levelled against them. 14) It has already been indicated by learned Judicial Magistrate in his judgment that the Forest Department is at liberty to pursue appropriate remedy before the appropriate forum for eviction of the accused-respondents from the Reserve Forest land, if they have really encroached upon the Reserve Forest land. 15) The evidence, thus brought on record, was correctly appreciated by the Court below. No interference is called for in the same. 16) Government Appeals therefore fail, and are dismissed. 17) Let a copy of this judgment alongwith lower court records be sent to the Court below for compliance.