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2015 DIGILAW 466 (JHR)

A. Kalam v. State of Jharkhand

2015-04-15

H.C.MISHRA

body2015
Judgment : H.C. Mishra, J. Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. This application has been filed for quashing the entire criminal proceeding initiated against the petitioner, in connection with B.F. Case No.36 of 2003, for the alleged offence under Section 33 of the Indian Forest Act, pending in the Court of the Chief Judicial Magistrate, Dhanbad. 3. The offence report and the prosecution report brought on record show that on 10.9.2003, the forest officials found that in Dhanuadih protected forest, a dumper was being loaded with coal by a pay loader, but upon seeing the forest officials, the dumper managed to flee away, but the pay loader was apprehended and driver of the pay loader was arrested. Thereafter the prosecution report was lodged before the Chief Judicial Magistrate, Dhanbad, for the offence under Section 33 of the Indian Forest Act, on the allegation of illegal mining of coal in the protected forest area, in which, the petitioner has been named, being the Director (Technical), Coal India Ltd., and Acting Chairman-cum-Managing Director of Bharat Coking Coal Ltd. 4. The petitioner has challenged the institution of the criminal case against him on the ground that the mining operation was going on in the said mines since last several years and the land did not include a forest land. According to the petitioner's case, M/s Bharat Coking Coal Ltd., was issued a notice, informing that the forest (Conservation) Act, 1980 was enacted and forest land could not be used for non-forest purposes without prior permission from the Central Government in terms of the provisions of the said Act. However the notice was challenged by M/s Bharat Coking Coal Ltd., in CWJC No.1106 of 1999(R), which was dismissed by the learned Single Judge. Against the said order, M/s Bharat Coking Coal Ltd., preferred LPA No.203 of 2001 in this Court, and the said appeal, though was dismissed by order dated 3.4.2003, but Bharat Coking Coal Ltd., was directed to put forward its case before the authorities concerned in response to the notice and authorities were directed to take decision thereon. Liberty was given to M/S Bharat Coking Coal Ltd., that if aggrieved by the decision of the authorities concerned, it may approach this Court for an appropriate relief. Liberty was given to M/S Bharat Coking Coal Ltd., that if aggrieved by the decision of the authorities concerned, it may approach this Court for an appropriate relief. The said order dated 3.4.2003 passed in LPA No.203 of 2001 has been brought on record as Annexure -3 of the application. It is stated in the petition that the Divisional Forest officer, Dhanbad, again passed an order dated 9.8.2003 holding that the land was a forest land and as such the Management could not do non-forestry activities on the said land, which was again challenged by M/s Bharat Coking Coal Ltd., in W.P.(C) No.4503 of 2003. The said writ application is still pending and by order dated 10.9.2003, M/s Bharat Coking Coal Ltd., has been allowed to continue with the mining operations, but was restrained from felling down any tree or timber during the pendency of the case. The order dated 10.9.2003 passed in WP(C) No.4503 of 2003 has also been brought on record as Annexure – 4 to this petition. 5. Learned counsel for the petitioner has submitted that in view of the order passed by this Court in WP(C) No.4503 of 2003, no offence can be said to be made out, as it is apparent from the prosecution report that only mining operation was being carried out, which was permitted by this High Court in W.P.(C) No.4503 of 2003. Learned counsel accordingly, submitted that in any view of the matter, no mens rea can be attached to this petitioner for having any criminal intention for committing the offence, and as such, launching of the prosecution is absolutely illegal and in teeth of the order passed by this Court, and same cannot be sustained in the eyes of law. 6. Learned counsel for the opposite parties has opposed the prayer, submitting that law has been laid down by the Hon’ble Supreme Court of India in T.N. Godavarman Thirumulkpad Vs. Union of India and others, reported in AIR 1997 SC 1228 , that for doing the non-forest activities in the protected forest, prior permission of the Central Government is necessary and accordingly, the offence is made out against the petitioner. 7. Union of India and others, reported in AIR 1997 SC 1228 , that for doing the non-forest activities in the protected forest, prior permission of the Central Government is necessary and accordingly, the offence is made out against the petitioner. 7. Since there is an order passed by this Court in favour of Bharat Coking Coal Ltd., entitling it to carry on the mining operations, I am of the considered view that the prosecution launched by the respondents against the petitioner and the other officials of the Bharat Cocking Coal Ltd., only on the allegation that in the coal mines, the dumper was being loaded with coal by the help of the pay loader, could not have been launched, and the same is absolutely illegal and cannot be sustained in the eyes of law, in view of the interim protection to M/s Bharat Coking Coal Ltd., by order dated 10.9.2003 passed in W.P.(C) No.4503 of 2003. 8. In view of the aforementioned discussions, the entire proceeding against the petitioner in B.F. Case No.36 of 2003, pending in the Court of learned Chief Judicial Magistrate, Dhanbad, is hereby, quashed. This application is accordingly, allowed.