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Jharkhand High Court · body

2013 DIGILAW 56 (JHR)

Nanku Mahto v. State of Jharkhand

2013-01-09

R.R.PRASAD

body2013
ORDER By the Court.-Heard learned counsel appearing for the petitioners and learned counsel appearing for the State. 2. This application has been flied for quashing of the entire criminal proceeding of U.C. Case No. 22 of 1999 including the order dated 18.3.1999 whereby and whereunder the then Sub-divisional Judicial Magistrate, Chatra took cognizance of the offence punishable under Section 33 of the Indian Forest Act against the petitioners. 3. The case of the prosecution as it appears from the prosecution report is that these four petitioners were found to have indulged themselves in digging the earth over Plot No. 1189, appertaining to khala No. 75 situated at village Bakchumba, P.S. Chatra, District-Chatra and thereby they had encroached the land which had been declared protected forest by virtue of notification issued in the year 1955 and thereby the petitioners have been alleged to have committed offence under Section 33 of the Indian Forest Act. 4. On submission of the prosecution report, cognizance of the offence was taken under Section 33 of the Indian Forest Act against the petitioners vide order dated 18.3.1999 which is under challenge. 5. Mr. B.K. Dubey, learned counsel appearing for the petitioners submitted that the petitioners are the lawful owner of the land in question over which they have got valid right, title and interest and that they are in physical possession over the land since long and even their names have been mutated in the revenue records and have been making payment of rent of the land to the State whereas Department of Forest has absolutely got no concern over the land in question. still the proceeding was initiated at the instance of the Forest Department under Section 144 of the Code of Criminal Procedure which was decided in favour of the petitioners and that more or less on the same allegation, one more case had been lodged in which petitioners were acquitted after full fledged trial when the Court did find rightful possession of the petitioners over the land in question. 6. Learned counsel further submitted that in fact, the Department of Forest had released the land in question in favour of the ancestor of the petitioners and since then they have been coming in physical possession over the land in question. 7. 6. Learned counsel further submitted that in fact, the Department of Forest had released the land in question in favour of the ancestor of the petitioners and since then they have been coming in physical possession over the land in question. 7. It was further submitted that one encroachment case had also been initiated against the petitioners at the instance of the Forest Department which was decided against the petitioners by the original Court. That order was challenged before the appellate authority but that appeal got dismissed and as against that the petitioners filed writ application, bearing W.P. (C) No. 2020 of 2005 which has been admitted and an order has been passed for maintaining status quo and thus, there appears to be abuse of the process of the Court and hence, the instant application is fit to be quashed. 8. It was further submitted that the Forest Department has been claiming the land in question to be the forest land on the basis of notification issued in the year 1955 but after lapse of 30 years that land lost its characteristic of the protracted forest in absence of any further notification and in such situation, the Forest Department can not claim its ownership over the land in question and on this count, the instant prosecution is fit to be quashed. 9. A counter-affidavit has been filed wherein it has been stated that by virtue of the notification issued in the year 1955, nature of the land in question is as that of the forest land which has been encroached by the petitioners and thereby the petitioners have certainly committed offence under Section 33 of the Indian Forest Act. 10. Having heard learned counsel appearing for the parties, it does appear that the land in question which has been claimed to be the forest land is - being claimed by the petitioners to be their land which, according to the petitioners, had already been released by the Forest Department in favour of the ancestor of the petitioners and that the petitioners have even moved to the Court of competent civil jurisdiction for declaration of right, title and interest over the land in question and that the proceeding under Section 144 of the Code of Criminal Procedure has been decided in favour of the petitioners. 11. Under this situation, any prosecution launched against the petitioners seems to be quite bad. 11. Under this situation, any prosecution launched against the petitioners seems to be quite bad. Accordingly, entire criminal proceeding of D.C case No. 22 of 1999 including the order taking cognizance is hereby quashed so far the petitioners are concerned. 12. In the result, this application stands allowed. Application allowed.