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2022 DIGILAW 1049 (JHR)

Amulya Pradhan v. State of Jharkhand

2022-08-22

DEEPAK ROSHAN

body2022
JUDGMENT : DEEPAK ROSHAN, J. 1. Since all these revision applications arise out of same impugned judgment and corresponding to same prosecution case, all are heard together and disposed of by this common judgment. 2. As per the service report, petitioner-Chaitan Pradhan (in Cr. Rev. No. 216 of 2006) has died; as such the criminal revision application No. 216 of 2006 is dismissed as abated. 3. The criminal revision applications are directed against the judgment dated 21.12.2005, passed by learned Additional District and Sessions Judge, Fast Track Court-V, West Singhbhum at Chaibasa, whereby the Cr. Appeal No. 82 of 2005, preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence dated 06.08.2005, in C/3 Case No. 12 of 1999, passed by the learned Sub-Divisional Judicial Magistrate, Porahat at Chaibasa, whereby the petitioners were convicted and sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 26 of the Indian Forest Act, has been affirmed. 4. The prosecution case in brief is based upon the official complaint of Range Officer of Forest Songra Range Bandgaon that on 25.03.1999 at about 4 P.M. while they were on patrolling seven persons were found cutting green trees and making the bundles of the wood. It is further stated that the accused persons were surrounded by the forest officials and four accused persons were arrested from the spot while rest three succeeded in escaping. A seizure list were prepared and a complaint case was instituted in the Court of learned S.D.J.M. Porahat at Chaibasa under Section 26 of the Indian Forest Act, 1927 and Section 2 (Bihar Amendment Act 1989). After investigation, the Forester submitted offence report against accused persons and thereafter, learned S.D.J.M. Porahat took cognizance for the offence under Section 26 of the Indian Forest Act, 1927, for which, petitioners pleaded not guilty and claimed to be tried. After trial, the petitioners were found guilty for the offences and they were convicted and their appeal was also rejected by the learned appellate court. 5. Mr. Vibhor Mayank, learned counsel for the petitioners while assailing the judgment of conviction submits that since no notification has been brought on record to the extent that the particular place of occurrence comes under the reserve forest area, petitioners cannot be prosecuted under the Forest Act. 5. Mr. Vibhor Mayank, learned counsel for the petitioners while assailing the judgment of conviction submits that since no notification has been brought on record to the extent that the particular place of occurrence comes under the reserve forest area, petitioners cannot be prosecuted under the Forest Act. He further draws attention of this Court towards Section 26 (1) of the Indian Forest Act, 1927 and submits that to constitute an offence under Section 26 (1) of the Act specified in the clauses of the Section, it should be committed in an area which is a reserved forest under the Act and unless and until the particular area is notified as forest land, provision of Section 26 (1) cannot be initiated or under that section nobody can be prosecuted. Admittedly, no notification declaring the place of occurrence as reserved forest area has been brought on record by the prosecution either before the learned trial court by way of exhibit nor before the appellate court. Merely, by the deposition of PW-2 who was the informant that the area comes under the Forest Act would not suffice the requirement of law in this regard, as such, on this ground itself prosecution should be held as bad in law and the surviving petitioners in all the criminal revision applications should be acquitted. 6. Ms. Nehala Sharmin, Ms. Vandana Bharti and Mr. Sanjay Kumar Srivastava, all learned APPs appearing for the opposite party-State in their respective cases opposed the prayer of the petitioners and submit that it is true that for any prosecution under the Forest Act it is necessary that the area must be declared as reserved forest land and in the instant case PW-2 has stated in his deposition that the land has been declared as forest land; however, the learned counsels fairly admitted that no such document has been exhibited in the court of law nor it has been produced before the appellate court. 7. Having heard learned counsel for the parties and after going through the impugned judgments including the LCR the only question which requires to be answered by this Court is whether the Forest area where the petitioners of respective cases have committed the act alleged against them was a reserved forest or not. In this regard, admittedly, the law requires that for any area to be reserved forest there has to be a notification. In this regard, admittedly, the law requires that for any area to be reserved forest there has to be a notification. It is quite logical also that without any notification the general people would not be able to understand which is the reserved forest area and which is the general area. Admittedly, in the instant case no such notification was produced before the court of law. It is only the statement of PW-2 in his deposition that the area has been notified as reserve forest land where there was the place of occurrence. This statement of PW-2 is not acceptable by this Court, inasmuch as, if there was notification, nobody prevented the prosecution to bring that notification before the court of law. 8. The learned trial court as well as learned appellate court committed the same error by not asking for the said notification and not verifying the said notification that the place of occurrence comes under the reserved forest land. The issue with regard to offence under Section 26 (1) of the Indian Forest Act has been no more res integra. Way back in the year 1964 the Hon’ble Supreme Court in the case of Union of India Representing the Union Territory of Tripura vs. Abdul Jalil and Others, (1964) 8 SCR 158 has held at Para 21 as under: “21. In the view that we have taken of the main question argued before us, we do not find it necessary to consider whether there were any other legal defences open to the several accused. For instance, it will be notice that the accused in these cases were held guilty of offences under Section 26 (1) (a), (d) and (h). As regards the offence under clause (a) the learned Attorney-General conceded that it was a pre requisite for a person being held guilty of an offence under that clause that there should be a notification under Section 4 because Section 5 which is referred to in Section 26 (1) (a) reads: “5. As regards the offence under clause (a) the learned Attorney-General conceded that it was a pre requisite for a person being held guilty of an offence under that clause that there should be a notification under Section 4 because Section 5 which is referred to in Section 26 (1) (a) reads: “5. After the issue of a notification under Section 4, no right shall be acquired in over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.” In the absence, therefore, of such a notification the accused could not have been held guilty of a contravention of Section 26 (1) (a).........” 9. After perusing the aforesaid judgment it clearly transpires that in the absence of any notification, any accused could not have been held guilty of contravention of Section 26 (1) (a) of the Forest Act. As such, since there was no such notification brought before the court of law either by way of exhibit or by any such document affidavited even before the appellate court, these revision applications require interference. 10. Consequently, all these revision applications are hereby allowed. The common impugned judgment dated 21.12.2005, passed by learned appellate court and judgment dated 06.08.2005, passed by the learned trial court, are hereby quashed and set aside. 11. The petitioners shall be discharged from the liability of their bail bonds. 12. Let the copy of this order be communicated to the court below. 13. Let the lower court record be sent back to the court concerned forthwith.