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2015 DIGILAW 162 (JHR)

Charan Mahto v. State of Jharkhand

2015-02-04

RONGON MUKHOPADHYAY

body2015
ORDER Heard Mr. Binod Kr. Dubey, learned counsel for the petitioners and Mr. Arun Kr. Pandey, learned counsel for the State. 2. In this application, the petitioners have prayed for quashing the entire criminal proceedings in connection with U.C. Case No. 345 of 1998 (T. R. No. 298 of 2003) including the order dated 15.12.1998 passed by the learned Judicial Magistrate, 1st Class, Chatra whereby and whereunder, cognizance has been taken for the offence punishable under Sections 33 of the Indian Forest Act. 3. The case of the prosecution as it appears from the prosecution report is that the petitioners were found to have indulged themselves in digging the earth over Plot no. 1189, appertaining to Khata no. 75 situated at village Bakchumba, P.S. Chatra, District – Chatra and thereby they had encroached upon 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 but 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 possessions 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 possessions 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 a protected 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. The learned counsel for the State, on the other hand, has submitted that the forest offence has been made out against the petitioner and the Title Suit is still pending and so far as the title and possession are concerned that has not yet been decided as such it would be pre-mature to quash the entire criminal proceedings. 11. 10. The learned counsel for the State, on the other hand, has submitted that the forest offence has been made out against the petitioner and the Title Suit is still pending and so far as the title and possession are concerned that has not yet been decided as such it would be pre-mature to quash the entire criminal proceedings. 11. Having heard the learned counsels for the parties and going through the records, it appears that the land in question which has been claimed by the Forest Department to be a forest land has also been claimed by the petitioners as their own land which according to the petitioners had already been released by the Forest Department in favour of the ancestors of the petitioners but it further appears that with respect to the right, title and possession over the land in question the petitioners have already filed a Title Suit before the competent civil court and the said suit is still pending. Moreover, it appears that the proceedings under Section 144 Cr.P.C. was also decided in favour of the petitioners. 12. In similar circumstances, arising out of the same plot of land several cases have been instituted by the Forest Department and some cases were challenged before this Court being Cr.M.P. No. 335 of 2004 and Cr.M.P. No. 5084 of 2001 and this Court after considering the entire facts of the case had quashed the entire criminal proceedings including the order taking cognizance. This case appears to be similar in nature to the cases which have been allowed by this Court in as much as the plot in question is common in all the cases. 13. Accordingly, there being merit in this case, the same is allowed and the entire criminal proceedings is, hereby, quashed in connection with U.C. Case No. 345 of 1998 (T. R. No. 298 of 2003) including the order dated 15.12.1998 passed by the learned Judicial Magistrate, 1st Class, Chatra so far as the petitioners are concerned.