Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 116 (GAU)

Taba Yanam Narah v. State Of Arunachal Pradesh

2021-02-11

PARTHIVJYOTI SAIKIA

body2021
JUDGMENT Parthivjyoti Saikia, J. - Heard the learned counsel Mr. T. T. Tara, appearing for the petitioner and also heard Ms. L. Hage, learned Additional Public Prosecutor appearing for respondent No.1 and Ms. T. Wangmo, learned Junior Government Advocate appearing for respondent 2. The petitioner, namely, Smti Taba Yaham Narah have filed this application under Section 482 of the Cr.P.C praying for quashing the CR Case No.24/2018 under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia. 3. The Deputy Commissioner, Yupia, Papum Pare District issued a Land Possession Certificate No. DC/LM/LPC-18/2012 dated 02.02.2012 to the petitioner for a plot of land measuring 18,700 square metres at Village-Upper Jumi in the district of Papum Pare. 4. On the basis of the Land Possession Certificate issued to the petitioner, she has been in possession of the said land since then. In fact, this parcel of land has been in occupation of the petitioner since 1930. The land was originally occupied by the parents of her husband. 5. On 21.02.2018, the respondent No.3 accused the petitioner of illegally trespassing into the forest land. He further accused the petitioner of clearing the jungle without permission. 6. The respondent No.3 filed a complaint against the petitioner before the court of Judicial Magistrate First Class, Yupia and on 15.05.2018, the court took cognizance of the offence under Sections 24 (a) & (b) and 25 (a), (b), (d) & (f) of Assam Forest Regulation 1891. The order dated 15.05.2018 was passed in CR. Case No. 24/2018. 7. The petitioner has submitted that the court below did not have the jurisdiction to take cognizance of the aforesaid offences. While referring to Assam Forest Regulation 1891, Mr. Tara, appearing for the petitioner, referred to section 9 of the aforesaid Regulation of 1891. Section 9 of the Regulation defines "Magistrate". Section 9 of the Regulation 1891 reads as under: "Magistrate" means magistrate of the first or second class, when he is specially empowered by the [State] Government to try forest offence." 8. For giving explanation as to why Section 9 of the Regulation of 1891 has been referred, Mr. Tara has referred to Section 190 of the Code of Criminal Procedure. For giving explanation as to why Section 9 of the Regulation of 1891 has been referred, Mr. Tara has referred to Section 190 of the Code of Criminal Procedure. Section 190 of the Code of Criminal Procedure mandates that subject to the provision of chapter 14 of the Code, any magistrate of first class and any magistrate of second class specially empowered can take cognizance of offences. 9. This is the reason why on 02.08.2019, the Government of Arunachal Pradesh issued a notification empowering the Chief Judicial Magistrates and Judicial Magistrate First Class in the State of Arunachal Pradesh to try offences under Assam Forest Regulation, 1891. The Notification reads as under: "NOTIFICATION The 2nd August, 2019 No. JUD-82/86.- In pursuance of sub-section (9) of Section 3 of Assam Forest Regulation, 1891 (7 of 1891) as applicable in the State of Arunachal Pradesh, the Government of Arunachal Pradesh in consultation with the Gauhati High Court is pleased to empower the Chief Judicial Magistrates and Judicial Magistrate First Class in the State to try offences under Assam Forest Regulation, 1891 within their respective territorial jurisdiction." 10. Mr. Tara, learned counsel for the petitioner has submitted that the court below took cognizance of the aforesaid offences on 15.05.2018 and on that date the court of Judicial Magistrate First Class at Yupia did not have the jurisdiction to try offences under Assam Forest Regulation, 1891. 11. Referring to Section 461 of the Code of Criminal Procedure, Mr. Tara, learned counsel for the petitioner has submitted that irregularity committed by the court below has vitiated the proceeding. Section 461 (k) is quoted as under: "461(k). Takes cognizance of an offence under clause (c) of sub-section (1) of Section 190." 12. Respondent No.2, on the other hand, has submitted that the LPC given to the petitioner was in violation of Forest Conservation Act, 1980 and the issue of the said LPC was also against the stand of the Government of Arunachal Pradesh that forest land shall not be converted into a non-forest land. 13. I have given my anxious consideration to the submissions made by the learned counsel. 14. Section 9 of Assam Forest Regulation, 1891 has defined the word "Magistrate" as a magistrate of first class or second class, when he is specially empowered by the State of Government to try forest offences. 13. I have given my anxious consideration to the submissions made by the learned counsel. 14. Section 9 of Assam Forest Regulation, 1891 has defined the word "Magistrate" as a magistrate of first class or second class, when he is specially empowered by the State of Government to try forest offences. The Government of Arunachal Pradesh issued the notification on 02.08.2019 and empowered the Chief Judicial Magistrates and Judicial Magistrate First Class in the State of Arunachal Pradesh to try offences under Assam Forest Regulation, 1891. The impugned order whereby, the magistrate took cognizance of the forest offences was passed on 15.05.2018. It goes to show that on 15.05.2018, the Judicial Magistrate First Class at Yupia did not have power to try the offences under the Regulation of 1891. Therefore, it is clear on the face of record that on 15.05.2018, Judicial Magistrate First Class at Yupia did not have the jurisdiction to take cognizance of the offences under the Regulation of 1891. The criminal proceeding against the petitioner is vitiated by irregularity as per the provision of law laid down under 461 (k) of the Cr.P.C. 15. The provision of quashing as laid down in the Section 482 of the Cr.P.C was inserted into the Code by the Code of Criminal Procedure (Amendment) Act, 1923. It was done because till then the High Courts in India did not have the power to do complete justice. Even if there is palpable irregularity in ordinary criminal proceeding pending before the sub-ordinate courts. It is a settled position of law that the power under Section 482 of the Cr.P.C cannot be used in an ordinary manner. There is no quarrel with the proposition of law that the power under Section 482 of the Cr.P.C can be exercised by the High Court only for preventing abuse of the process of the court and for securing the ends of justice. 16. The case in hand is one where the Magistrate did not have the jurisdiction to try offences under Assam Forest Regulation of 1891. Therefore, criminal proceedings vide CR case No. 24/2018 pending in the court of Judicial Magistrate First Class at Yupia is vitiated under Section 461 of the Cr.P.C. Such a proceeding cannot be allowed to continue. 16. The case in hand is one where the Magistrate did not have the jurisdiction to try offences under Assam Forest Regulation of 1891. Therefore, criminal proceedings vide CR case No. 24/2018 pending in the court of Judicial Magistrate First Class at Yupia is vitiated under Section 461 of the Cr.P.C. Such a proceeding cannot be allowed to continue. Therefore, this Court is of the opinion that this is a fit case of exercising the power under Section 482 of the Cr.P.C. Accordingly, the Criminal Petition is allowed. 17. It is also directed that this order shall not act as bar for the State of Arunachal Pradesh to stick to its stand that forest land shall not be allowed to be used for nonforest purposes. 18. With the aforesaid observations, the proceeding of CR Case No.24/2018 under Sections 24 (a) and (b) and 25 (a), (b), (d) and (f) of Assam Forest Regulation, 1891 pending before the court of Judicial Magistrate First Class, Capital Complex, Yupia is quashed. 18. The Criminal Petition is disposed of accordingly.