Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 425 (JHR)

Mahendra Rajak v. State of Jharkhand

2023-03-27

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : 1. Heard the parties. 2. Criminal Miscellaneous Petition No. 1358 of 2018 has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding arising out of Complaint Case No. 232 of 2018 (Forest) including the order taking cognizance dated 08.03.2018 under Section 33 of the Indian Forest Act, 1927, passed by the learned Judicial Magistrate -1st Class, Bokaro and Criminal Miscellaneous Petition No. 1064 of 2020 has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding arising out of Complaint Case No. 1233 of 2018 (Forest) including the order taking cognizance dated 23.06.2019 under Section 33 of the Indian Forest Act, 1927, passed by the learned Judicial Magistrate -1st Class, Bokaro 3. The allegation against the petitioners in Complaint Case No. 232 of 2018 (Forest) in respect of which Criminal Miscellaneous Petition No. 1358 of 2018 has been filed is that the petitioners were constructing house after encroaching over plot no. 15 of Mouza – Bandhagoda, Thana No. 35 which is a protected forest land. The forest officials reached the place of occurrence and upon seeing the forest officials, the persons who were involved in constructing the house fled away. The forest officials could apprehend the petitioners who were involved in encroaching the forest land and for their own profit constructing houses and they could not produce any documents in support of the place of occurrence land. 4. The allegation against the petitioner in Complaint Case No. 1233 of 2018 (Forest) in respect of which Criminal Miscellaneous Petition No. 1064 of 2020 has been filed, is that on 06.11.2018 when the complainant–forest guard along with other forest officials were on patrolling within the forest land, they saw that 4-5 labourers were illegally carrying on construction work in the upper storey of the building and were carrying out construction of the wall by using bricks and cement inside the house and when the complainant–forest guard along with the other forest official attempted to make the door of the ground floor open with a view to stop the construction work, the persons who were carrying out the construction work on the upper storey of the building did not open the door. 5. It is submitted by Mr. 5. It is submitted by Mr. Rama Kant Tiwari, the learned counsel for the petitioners that no offence under Section 33 of the Indian Forest Act, 1927 is made out against the petitioners as plot no. 15 is a raiyati land which has been purchased by the petitioners by registered sale deed from Adarsh Co-operative House Construction Society Ltd. of the then district –Dhanbad now the district of Bokaro. It is then submitted by the learned counsel for the petitioners that plot no.15 involved in this case was the subject matter before this Court in Criminal Miscellaneous Petition No. 2730 of 2017 which was allowed vide order dated 04.08.2022 and the entire criminal proceeding of the connected complaint case including the order taking cognizance was quashed by this Court. It is next submitted by Mr. Tiwari that the said plot number 15 was also the subject matter of Cr.M.P. Nos. 3031 & 3428 both of 2019, 594 of 2020, 628 of 2020 and 631 of 2020 and vide order dated 18.10.2022, a Co-ordinate Bench of this Court has quashed the entire criminal proceeding of connected complaint cases and respective orders taking cognizance, pending before the learned Judicial Magistrate -1st Class, Bokaro, was quashed. Para -4 of the order dated 04.08.2022 of Cr. M.P. No. 2730 of 2017 reads as under:- “4. Mr. Saurav Arun, learned counsel for the petitioners submits that the petitioner no. 1 is the President and petitioner no. 3 is the Secretary of Adarsh Sahkari Grih Nirwan Samiti. He further submits that the land in dispute is plot nos. 5 and 15 of village Bandhgora, Thana No. 35, P.S. Pindrajora, District-Bokaro which was raiyati land and earlier a dispute was raised between the Forest Department and concerned raiyats of the plot in question for which Title Suit No. 140 of 1954 was preferred by 11 plaintiffs against the State of Bihar and one of the plaintiff was Shanti Ram Mahtha and the plot nos. 5 and 15 of Khata No. 28 were covered in the said title suit. He further submits that on 24.07.1956 a decree was passed in favour of the plaintiffs of the said title suit in which it was held that the said government notification would not cover plot no. 5 and 15 of Khata No. 28 were covered in the said title suit. He further submits that on 24.07.1956 a decree was passed in favour of the plaintiffs of the said title suit in which it was held that the said government notification would not cover plot no. 5 and 15 as private protected forest of Forest Department and as such the right, title and the interest of the plaintiffs was maintained over the same. He further submits that the said land was purchased by the Adarsh Sahkari Grih Nirman Samiti from heirs of Shanti Ram Mahtha by registered deed in the year, 1984. He further submits that when the members of the said Samiti were started to construct their house, the Range Officers, Chas Range, Chas has filed a petition under section 144 of the Cr.P.C. registered as Case No. 1701 of 1987 and the same was decided in favour of the Samiti on 12.02.1988. He further submits that again a petition under section 145 of the Cr.P.C. was filed by the Forest Department against the petitioners in which an attachment order was passed and the same was challenged before the Hon’ble Court which was numbered as Criminal Revision No. 27 of 1990 (R) which was decided on 23.05.1995 holding therein that Notification under section 29 of the Act was published, possession of the land would be deemed to have been taken by the Forest Department, cannot be held to be legally sustainable and must be rejected. He further submits that the Range Officer, Chas Range, Chas thereafter filed a land encroachment case before the Land Reforms Deputy Collector, Dhanbad which was numbered as BPLE Case No. 19 of 1988-89 against the Adarsh Sahkari Grih Nirman Samiti and the said case was decided in favour of the said Samiti. He further submits that inspite of these orders Forest Department again issued a notice on 20.11.1992 in the same case i.e. BPLE Case No. 19 of 1988-89 and being aggrieved by the same the Samiti filed a Writ Application numbered as CWJC No. 1232 of 1993 which was finally decided on 16.06.2003 by which notice was quashed by this Court and the case was decided in favour of the petitioners. He further submits that in the said case liberty was provided to the Forest Department to avail remedy but the remedy was not availed and again the Forest Department filed Title Suit No. 11 of 2005 which is still pending. He further submits that this case was instituted by the O.P. No. 2 only on the basis that the land belongs to Forest Department on the basis of notification, but the said notification has already been held by this Court as not legally sustainable and further it was held that the land belongs to the Samiti, inspite of that Forest Department has instituted the present case against the petitioners. He further submits that the learned Munsif, Purulia in T.S. No. 140 of 1954 vide decree dated 30.07.1956 issued the decree in favour of petitioners declaring that the property decreed in schedule no. 1 to 4 have not been constituted into private protected forest land as contemplated under Bihar Forest Act. He further submits that notification under section 29 of the Forest Act is dated 24.05.1958 and Section 30 (b) of the Act provides that notification shall remain in force for 30 years. He further submits that no notification is there under section 30 of the Act.” Hence, it is submitted that the entire criminal proceeding arising out of Complaint Case No. 232 of 2018 (Forest) including the order taking cognizance dated 08.03.2018 under Section 33 of the Indian Forest Act, 1927, passed by the learned Judicial Magistrate -1st Class, Bokaro and the entire criminal proceeding arising out of Complaint Case No. 1233 of 2018 (Forest) including the order taking cognizance dated 23.06.2019 under Section 33 of the Indian Forest Act, 1927, passed by the learned Judicial Magistrate -1st Class, Bokaro be quashed. 6. Learned Addl. P.P. on the other hand opposes the prayer for quashing the entire criminal proceeding and the order taking cognizance as prayed for by the petitioners. It is further submitted by the learned Addl. P.P. that the petitioner has no right, title and interest over the plot no.15 but fairly submits that this Court in different criminal miscellaneous petitions had quashed the entire criminal proceeding involving the offences punishable under Section 33 of the Indian Forest Act, 1927 in respect of plot no. 15 which is also the plot involved as involved in this case. 7. 15 which is also the plot involved as involved in this case. 7. Having heard the submissions made at the bar and after going through the materials in the record, it is pertinent to mention here that it is an admitted fact that the subject matter involved in this case being plot no.15 of Mouza –Bandhagoda, Thana No. 35, which is the place of occurrence land of these two cases, are the same plots in respect of which the entire criminal proceedings as well as the order taking cognizance has been quashed by the Coordinate Benches of this Court in other cases. 8. Perusal of the record reveals that the name of the said Adarsh Co-operative House Construction Society Ltd. has been entered in Register –II and rent receipts are also been issued in the name of the said society on the basis of the order dated 25.07.1986, passed in Mutation Case No. 30(vii)/1986-87 by the Circle Officer, Chas. 9. Considering the facts of the case, this Court is of the considered view that continuation of this Criminal proceeding will amount to abuse of process of the Court, as no offence could be made out against the petitioners unless it is established that the place of occurrence land is a protected forest. Thus for the ends of justice, the entire criminal proceeding arising out of Complaint Case No. 232 of 2018 (Forest) including the order taking cognizance dated 08.03.2018 under Section 33 of the Indian Forest Act, 1927, passed by the learned Judicial Magistrate -1st Class, Bokaro and the entire criminal proceeding arising out of Complaint Case No. 1233 of 2018 (Forest) including the order taking cognizance dated 23.06.2019 under Section 33 of the Indian Forest Act, 1927, passed by the learned Judicial Magistrate -1st Class, Bokaro is hereby quashed and set aside. 10. In the result, these criminal miscellaneous petitions are allowed.