Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 526 (KAR)

Eregowda v. State Of Karnataka

2020-02-24

MOHAMMAD NAWAZ

body2020
JUDGMENT 1. This appeal is filed by the accused challenging his conviction and sentence passed by the Court of Karnataka Land Grabbing Prohibition Special Court, Bengaluru in LGC(P) No.1017/2017, wherein he has been convicted for the offence punishable under Section 4(3) of the Karnataka Land Grabbing Prohibition Act, 2011 (the Act for short). 2. I have heard the learned counsel appearing for the appellant and the learned High Court Government Pleader for respondent-State. 3. It is the case of prosecution that the appellant herein encroached the reserved forest land in survey No.1 of Shivapura Kaval, Salagame Hobli, Hassan District to an extent of 8 acres and thereby committed an offence punishable under Section 4(3) of the Act. 4. It is the contention of the learned counsel for the appellant that the Special Court has arrived at an erroneous conclusion that the appellant has encroached upon the forest land to an extent of 8 acres, solely relying on the documents produced by the respondent herein. He submits that the appellant has not encroached any Government or forest land as alleged. He submits that mahazar at Ex.P1 is not drawn in the presence of the appellant and before conducting inspection, no notice was served on him. The mahazar refers to a different village and therefore, the Special Court has committed a serious error in relying on the documents produced by the prosecution to hold that the appellant has encroached the Forest Land. He submits that no independent witnesses are examined on behalf of the prosecution to prove the alleged encroachment and therefore submits that the prosecution has failed to prove beyond all reasonable doubt that the appellant has encroached the forest land as alleged by the prosecution. 5. In support of his contention the learned counsel has placed reliance on a decision of this Court reported in ILR 2008 Kar 4520 in the case of Smt. Lalitha Sastry v. State of Karnataka . 6. Per contra, learned High Court Government Pleader has vehemently contended that an inspection was conducted at the spot and in this regard mahazar was drawn by the Deputy Range Forest Officer. Since none of the villagers as well as the appellant co-operated, mahazar was conducted in the presence of Officials of the Forest Department. He submits that the prosecution has produced Ex.P2 sketch of Shivapura Kaval grama and also Exs.P3 and P4 GPS readings. Since none of the villagers as well as the appellant co-operated, mahazar was conducted in the presence of Officials of the Forest Department. He submits that the prosecution has produced Ex.P2 sketch of Shivapura Kaval grama and also Exs.P3 and P4 GPS readings. The said documents clearly establishes that the accused has encroached the Forest Land in question. He submits that notice was issued to the accused before conducting the mahazar, however, he has remained absent and not filed any objections to the notice. Hence, he submits that the Special Court was justified in convicting the accused. Accordingly, he seeks to dismiss the appeal. 7. It is the specific case of the prosecution that the accused encroached to an extent of 8 acres of Forest Land in survey No.1 of Shivapura Kaval, Salagame Hobli, Hassan District. In this regard, a complaint was filed by PW.1-Range Forest Officer before the Special Court marked as Ex.P8. 8. To establish its case, the prosecution has got examined PW1-Range Forest Officer and PW.2-Deputy Range Forest Officer and got marked Exs.P1 to P9. 9. PW.1 in his evidence has stated that survey No.1 of Shivapura Kaval, Salagame Hobli and survey Nos.73 and 74 of Sigegudda Kaval Village totally consist 2653 acres. He has stated that the accused had encroached 8 acres of land in Shivapura Kaval, Salagame Hobli since 25 years and in the year 2002-03, a case was registered against him. He states that the Deputy Range Forest Officer conducted a spot panchanama as per Ex.P1 after taking GPS readings. He has stated that a sketch was prepared as per Ex.P.2. Exs.P3 and P4 are the GPS sketches. Since it was found that the accused had encroached upon 8 acres of land, a complaint was filed as per Ex.P8. 10. Though it is stated that in the year 2002-03 a case was registered against the accused, however, no document has been produced and marked in this behalf. 11. According to PW.2, the Deputy Range Forest Officer, the total extent of Forest Land in Shivapura Kaval, Salagame Hobli of Aladalli Village in survey No.1, is 2653 acres. He has stated that on 29.04.2018 he conducted spot mahazar and after taking GPS readings and Google sketches, he submitted the report to the complainant. He has stated that the accused has encroached upon 8 acres of land and he is in possession of the same. 12. He has stated that on 29.04.2018 he conducted spot mahazar and after taking GPS readings and Google sketches, he submitted the report to the complainant. He has stated that the accused has encroached upon 8 acres of land and he is in possession of the same. 12. A perusal of Ex.P8-complaint shows that the same is dated 16.06.2017. However, the mahazar-Ex.P1 stated to have been drawn at the spot by PW.2 is on 29.04.2018. PW.1 and PW.2 have not sated in their evidence as to how the complaint came to be filed before conducing the spot mahazar. 13. Though PW.2 has stated that survey No.1 is in Shivapura Kaval village, however, in Ex.P1-spot mahazar, it is mentioned as survey No.1 of Aladalli Village. According to Ex.P-1, mahazar was drawn in survey No.1 of Aladalli Village in Salagame Hobli. It is not clarified either by PW.1 or PW.2 as to why in Ex.P1 Shivapura Kaval village is not mentioned. 14. The accused has not disputed that survey Nos.1, 73 and 74 of Shivapura Kaval village, Sigegudda Kaval Village are forest lands. However, his contention is that he is the owner and in possession of about 6 acres of land in survey No.68 and 69 of Shivapura Kaval village. According to him survey No.1 is adjacent to the said land and he has not encroached the forest land or Government land in survey No.1 of Shivapura Kaval village. 15. The accused has denied that he was present at the spot at the time of drawing up of Ex.P1. Even in Ex.P1 there is no mention about the accused being present at the time of conducting the mahazar. Though the accused has admitted that he had received a notice and appeared before the Range Forest Officer, however, it is not forthcoming as to whether the said notice was issued prior to conducting the spot mahazar. Copy of the notice is also not produced and marked by the prosecution. The prosecution has therefore failed to establish that a notice was issued to the accused before conducting the spot mahazar calling upon him to show cause and to file objection. Copy of the notice is also not produced and marked by the prosecution. The prosecution has therefore failed to establish that a notice was issued to the accused before conducting the spot mahazar calling upon him to show cause and to file objection. In this regard it is relevant to refer to the decision of this Honble Court in Smt. Lalitha Sastry (quoted supra), wherein it is held that Section 192(a) of the Karnataka Land Revenue Act, 1964 stipulates procedure under which a show cause notice is to be given calling upon those alleged encroachers to file their objections within 15 days. If no objections are received, authorities are called upon to visit the spot, conduct a mahazar in the presence of the villagers, obtain their signatures and thereafter to initiate criminal proceedings if they are satisfied that there is encroachment. 16. It is not forthcoming from the evidence on record that the prosecution has issued show cause notice calling upon the appellant to file objections. No such notice is produced and marked. The prosecution has also not examined the panch witness, who have signed Ex.P1-mahazar. For all these reasons, I am of the view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence the impugned judgment and order of conviction passed by the Special Court is not sustainable in law. 17. According to the accused he has not at all encroached upon the forest land and he is not in possession of the same. It is made clear that in case hereafter the authorities find that the accused has encroached the forest/Government land including the lands in question, a fresh cause of action would arise and in that case they are not prevented from initiating appropriate proceedings against the accused including criminal proceedings, in accordance with law. With the above observations, I pass the following; ORDER Appeal is allowed. The impugned judgment and order dated 04.01.2019 passed by the Karnataka Land Grabbing Prohibition Special Court, Bengaluru in LGC(P) No.1017/2017, convicting and sentencing the accused for the offence punishable under Section 4(3) of the Karnataka Land Grabbing Prohibition Act, 2011 is hereby set aside. The accused is acquitted and his bail bonds are cancelled. If any fine amount is deposited, same shall be returned to the accused.