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2019 DIGILAW 700 (JHR)

Surendra Prasad Bhagat v. State of Jharkhand

2019-03-12

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present petition has been filed for quashing the order dated 05.01.2010 passed by the learned Chief Judicial Magistrate, Seraikella in G.O Case No. 03 of 2010 whereby cognizance of the offence under section 33 of the Indian Forest Act, 1927 (in short, “the Act, 1927”) has been taken against the petitioner. 2. The brief facts of the case as stated in the petition is that the Forester of Gamharia Forest Range, filed a written report against the petitioner on 01.10.2009 alleging therein that when he surveyed the forest land of Jai Prakash Udyan (Dindli P.F.), it was found that the petitioner after removing the boundary pillars of the forest department, had constructed a boundary wall, a gate and asbestos shed since long i.e for last 7 to 8 years and had shifted the same to some other place. It was also alleged that the petitioner was using the encroached forest land as road and for other temporary works. 3. It is submitted by the learned counsel for the petitioner that the petitioner has not at all encroached any part of the forest land, rather he is in possession of land to the extent of 0.07.10 hectares of village Dindli within N.A.C. area, ward no. 3, New Khata No. 215 appertaining to Old Khata No. 252, 254, new plot no. 1640 corresponding to Old Plot No. 1802 and 1803 which has been purchased in the name of his wife and one Ramdayal Chourasia vide registered sale deed dated 12.11.1987. In the southern side of the aforesaid plot, there is forest land and in the said side, there is Kherkai river. In course of time, the forest land has submerged in the river and due to confusion, the present case has been lodged against the petitioner. It is further submitted that earlier also, a criminal case being C/3- 59 of 1995 (T.R. No. 73/1997) was instituted against the petitioner with similar allegation, however the said case ended in acquittal of the petitioner. The plot of the petitioner has been measured several times in presence of the forest officials and a pole mark has been fixed for identifying the forest land which has not been tampered by the petitioner. The plot of the petitioner has been measured several times in presence of the forest officials and a pole mark has been fixed for identifying the forest land which has not been tampered by the petitioner. It is also submitted that the notification declaring the said plot as protected forest issued in the year 1977 has lost its validity as the same was effective only for a period of 30 years. Moreover, Encroachment Case No. 1 of 2009 instituted under Bihar Public Land Encroachment Act is also pending against the petitioner on the said issue and as such the impugned order taking cognizance of the offence against the petitioner is fit to be quashed. 4. Per contra, the learned A.P.P. appearing for the State submits that the petitioner is under misconception that the notification of the year 1977 has been issued under Section 30 of the Act, 1927, rather the same has been issued under Section 29 of the Act, 1927 and there is no time limit prescribed under Section 29 and as such the learned court below has rightly taken cognizance of the offence against the petitioner. It is further submitted that plot No. 1804 of Dindli has been notified as protected forest under section 29 of the Act, 1927. The petitioner has wilfully committed offence under Sections 33 and 63 of the Act, 1927 by encroaching forest land and removing the boundary pillars of the forest department. The Divisional Forest Officer, Seraikella after being satisfied with the report of the Range Forest Officer, sent the same to the court of the Chief Judicial Magistrate, Seraikella for institution of the case. The Beat Officer, Gamharia had submitted enquiry report supported with map showing the encroached area by cross mark. As per the report, the boundary pillars of forest land had been shifted to another place and the petitioner had tried to make false forest boundary with an intention to grab the forest land for non-forest use by extending the boundary wall and also by making construction using asbestos sheet. 5. Heard the learned counsel for the parties and perused the materials available on record. Before going to the merit of the case, it would be relevant to go through the provisions of Section 30 and 33 of the Act, 1927, which are quoted hereinbelow:- “30. 5. Heard the learned counsel for the parties and perused the materials available on record. Before going to the merit of the case, it would be relevant to go through the provisions of Section 30 and 33 of the Act, 1927, which are quoted hereinbelow:- “30. Power to issue notification reserving trees, etc.—The State Government may, by notification in the Official Gazette,— (a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification; (b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such terms, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the right suspended in the portion so closed; or (c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest-produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest. S.33: Penalties for acts in contravention of notification under section 30 or of rules under Section 32 (1) Any person who commits any of the following offences, namely:-- (a) fells, girdles, lops, taps or burns any tree reserved under section 30 , or strips off the bark or leaves from, or otherwise damages, any such tree; (b) contrary to any prohibition under section 30 quarries any stone, or burns any lime or charcoal, or collects, subjects to any manufacturing process, or removes any forest-produce; (c) contrary to any prohibition under section 30 , breaks up or clears for cultivation or any other purpose any land in protected forest; (d) sets fire to such forests, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30 , whether standing, fallen, or felled, or to any closed portion of such forest; (e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion; (f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid; (g) permits cattle to damage any such tree; (h) infringes any rule made under section 32; shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. (2) Whenever fire is caused willfully or by gross negligence in a protected forest, the State] Government may, notwithstanding that any penalty has been inflicted under this section, direct that in such forest or any portion thereof the exercise of any right of pasture or to forest-produce shall be suspended for such period as it thinks fit. (3) When a person is convicted of an offence under sub -section (1),-- (a) a Forest Officer not below the rank of a Ranger, (b) a Police Officer not below the rank of a sub -Inspector, or (c) a Revenue Officer not below the rank of a Mahalkari, may evict him from the protected forest in relation to which he has committed the offence.” 6. Section 29 of the Act, 1927 deals with the power of the State Government to notify any area as protected forest upon which it has the proprietary right. Section 30 deals with the power of State Government to issue any notification prohibiting certain act within a specified area of the protected forest. Section 29 of the Act, 1927 deals with the power of the State Government to notify any area as protected forest upon which it has the proprietary right. Section 30 deals with the power of State Government to issue any notification prohibiting certain act within a specified area of the protected forest. Section 33 provides the penalties for any act done in contravention of the notification issued under section 30 and the rules framed under section 32 of the Act, 1927. Section 33 deals only with those offences which have been committed within any area or any act which has been prohibited under section 30 of the Act, 1927. 7. In the present case, it is the admitted case of the opposite party that the notification issued in the year 1977 was under section 29 of the Act, 1927 and not under section 30 of the Act, 1927. Moreover, I have also gone through the notification dated 09.12.1977 annexed by the opposite party as Annexure-A to the counter affidavit, which also reflects that the said notification was issued under section 29 of the Act, 1927. 8. In view of the aforesaid legal position, I find that prima facie no offence under section 33 of the Act, 1927 is made out from the written report of the Forester of Gamharia Forest and as such the order taking cognizance for the offence under section 33 of the Act, 1927 cannot be legally sustained. 9. However, in the written report of the forester, it has specifically been alleged against the petitioner that he altered the boundary mark of the forest and was using the forest land for his own purpose and as such, the offence is prima facie made out under section 63 of the Act, 1927 which specifically provides for penalty for counterfeiting or defacing marks on trees and timber and for altering boundary marks. Thus, I am of the considered view that from the written report of the forester, Gamharia Forest Range, an offence under section 63 of the Act, 1927 is prima facie made out in the present case. 10. Thus, I am of the considered view that from the written report of the forester, Gamharia Forest Range, an offence under section 63 of the Act, 1927 is prima facie made out in the present case. 10. The other limb of the argument of the learned counsel for the petitioner is that the petitioner has not encroached any forest land, rather he is in possession of the land which has been purchased in the name of his wife and one Ramdayal Chourasia and the said land is adjacent to the forest land. The said argument of the learned counsel for the petitioner is factual in nature and the same is required to be determined by the court below after taking into consideration the evidences led by the parties. 11. Much stress has been given by the learned counsel for the petitioner that earlier also similar case was instituted by the forest department alleging encroachment of the forest land, however the same ended in acquittal of the petitioner. I am of the considered view that the said fact is not a cogent ground to quash the present criminal proceeding. The earlier case i.e. C/3 – 59 of 1995 was instituted alleging that on 15.08.1994 the accused persons were levelling the earth and were involved in making plantation work in the field which belonged to the forest department and in such way, they damaged the green plants of the forest department. In the said case, the accused persons were acquitted vide judgment dated 13.06.1997 as the prosecution failed to establish its case whereas the present case has been instituted alleging that the petitioner omitted the boundary of the forest and constructed his own boundary wall, gate and asbestos shed seven-eight years before and shifted the boundary pillars to some other place and he was using the forest land as road and doing other temporary works. Since the cause of action of both the cases is different, merely on the ground that earlier case ended in favour of the petitioner, the present case cannot be quashed. Moreover, in the counter affidavit filed on behalf of the D.F.O., a map has been annexed showing the encroached area as demarcated therein. The veracity of the same is required to be adjudged by the court below on the basis of the evidence adduced by the parties. 12. Moreover, in the counter affidavit filed on behalf of the D.F.O., a map has been annexed showing the encroached area as demarcated therein. The veracity of the same is required to be adjudged by the court below on the basis of the evidence adduced by the parties. 12. In view of the aforesaid legal and factual position, the order taking cognizance dated 05.01.2010 passed in G.O Case No. 03 of 2010 by the Chief Judicial Magistrate, Seraikella is quashed. The court below is directed to issue fresh process to the petitioner for the offence under section 63 of the Act, 1927 and to proceed in the matter in accordance with law. 13. The present petition is disposed of with the aforesaid directions. However, the observations made hereinabove are prima facie in nature only for the disposal of the present petition and will not affect the respective cases of the parties before the learned court below.