Jharkhand High Court
Mr.M.Fasiuddin vs State Of Jharkhand & Ors. on 8 August, 2013
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P. No.31 of 2003
with
Cr.M.P.No.1066 of 2003
Mr.M.Fasiuddin................Petitioner (Cr.M.P.No.31 of 2003)
1.Sri N.S.Malliwal
2.Sri A.S.Joshi
3.Sri J.P.Mishra
4.Sri Suresh C.Singh....Petitioners (Cr.M.P.No.1066 of 2003)
VERSUS
State of Jharkhand and another ...............Opposite Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners: M/s.I.Sinha and G.M.Misra
For the State :Mr.T.N.Verma
6/ 8.8.13. Since both the cases arising out of the same case, it were heard together and are being disposed of by this common order.
Heard learned counsel appearing for the petitioners and learned counsel appearing for the State.
This application has been filed for quashing of the entire criminal proceeding of C-3 case no.87 of 1996 including the order dated 30.7.1996 whereby and whereunder cognizance of the offence punishable under Section 33 of the Indian Forest Act has been taken against the petitioners.
It is the case of the prosecution as it appears from the prosecution report that the petitioners had fell down 784 trees of a protected forest without having any permission for that and thereby the accused persons did commit offence under Section 33 of the Indian Forest Act as well as under Section 2 of the Forest Conservation Act, 1980.
On such report, cognizance of the offence punishable under Section 33 of the Indian Forest Act was taken on 30.7.1996 which is under challenge.
The impugned order has been challenged on several grounds including the ground which has been taken in the supplementary affidavit wherein plea has been taken that in absence of any notification under Section 30, one cannot be prosecuted for an offence under the Indian Forest Act. Further it was submitted that for prosecuting one under Section 33 of the Indian Forest Act the Government first should come with the notification to be issued under Section 29 of the Indian Forest Act declaring the forest land to be the protected forest.
Further the Government should also come forward with the notification reserving trees or the class of trees in the protected forest under Section 30 of the Indian Forest Act but as per the statement made in the rejoinder to the supplementary affidavit, the State Government has come forward to take a plea that notification has been issued under Section 29 of the Indian Forest Act whereas no averment is there with respect to issuance of any notification under Section 30 of the Indian Forest Act and therefore, it would be presumed that the State Government has never issued any notification under Section 30 of the Indian Forest Act declaring any trees or class of trees in a protected forest to be reserved and if that is so, one cannot be prosecuted under Section 33 of the Indian Forest Act.
It was further submitted that in the face of allegation made the question of committing offence of Forest Conservation Act does not arise and moreover, no cognizance of the offence under the Conservation of Forest Act has been taken.
Mr.T.N.Verma, learned counsel appearing for the State by referring to the statement made in reply to the supplementary affidavit submits that Noamundi and Muhandi protected forest have been declared as a protected forest, vide notification no.904 dated 23.5.1905 and that provision as contained in Section 30 has nothing to do with an issuance of any notification concerning protected forest.
In view of the provisions as has been there under Section 29 and also under Section 30 of the Indian Forest Act, the submission made on behalf of the State seems to be of without substance. The relevant provisions read as under:
29. Protected Forest (1) The State Government may, by notification in the [official Gazette], declare the provisions of this Chapter applicable to any forest-land or waste-land which is not included in a reserved forest but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled.
2. The forest-land and waste-lands comprised in any such notification shall be called a "protected forest".
3. No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest-land or waste-land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the [State Government] thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved.
Provided that, if, in the case of any forest-land or waste land, the [State Government] thinks that such inquiry and record are necessary, but that they will occupy such length of time as in the meantime to endanger the rights of Government, the [State government] may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities.
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 of 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.
From its perusal it does appear that the State Government is required under Section 29 of the Indian Forest Act to notify forest land or waste land to be a protected forest under a notification to be issued in an Official Gazette.
Further the State Government is also required to issue notification in an Official Gazette declaring any trees or class of trees in a protected forest to be reserved from a date fixed under the notification.
Thus, it becomes quite obvious that unless notifications are issued under Section 29 and also under Section 30 of the Indian Forest Act, one can hardly be prosecuted on the allegation of felling trees.
Similar question had fallen for consideration before the Patna High Court in a case of Janu Khan and others vs. State of Bihar (AIR 1960 Pat 213) wherein His Lordship observed as follows:
" Even if I take into consideration the notification referred to above, which is dated the 29th December, 1952, there had to be another notification under Section 30 of the Indian Forest Act, protected forest to be reserved from a date fixed in that notification.
Similar view seems to have been taken by this Court in a case of Jagdish Mehta vs. State of Jharkhand and others [2003(2) J.C.R 525(Jhr.)].
In the instant case, the State has come forward with a plea that the notification has been issued under Section 29 of the Indian Forest Act in the year 1905 but no averment is there that the Government ever issued any notification under Section 30 of the Indian Forest Act declaring any trees or class of trees in a protected forest (to which the instant case is concerned) to be reserved.
In that view of the matter, one cannot be prosecuted even on allegation of felling trees.
Accordingly, the entire criminal proceeding of C-3 case no.87 of 1996 including the order taking cognizance is hereby quashed.
In the result, these applications stand allowed.
(R.R.Prasad, J.) ND/