Allahabad High Court
Meena And Others vs State Of U.P. And Another on 10 July, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 30.5.2019 Delivered on 10.7.2019 Court No. - 34 Case :- APPLICATION U/S 482 No. - 13764 of 2005 Applicant :- Meena And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- P.C. Srivastava, R.V. Chaudhary Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri P.C. Srivastava, learned counsel for applicants and Sri Syed Ali Murtaza, learned AGA for State of U.P.
2. This application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed by applicants, Meena wife of Dashrath Prasad; Dashrath Prasad son of Sankatha Prasad; Munni wife of Janmjai Singh and Janmjai Singh son of Pachdeo Singh, all residents of Village- Mufeewa, Post Office Sukhdewanand Ashram Mufeewa, Police Station Pipari, District Sonbhadra praying for setting aside orders dated 28.06.2005 and 03.08.2005 passed by Judicial Magistrate, Duddhi, Sonbhadra as also to quash the proceedings initiated against applicants under Sections 5/26 of Indian Forest Act, 1927 (hereinafter referred to as "Act, 1927") registered as Case No. 2319 of 2005 pending in the Court of Chief Judicial Magistrate, Duddhi, Sonbhadra.
3. It is said that applicant-1 is in possession over plot no. 444-kha, area 1.105 hectare, and applicant-3 is in possession over plot no 444-ga, area 1.1050 hectare, in village Khad Pathar, Tehsil- Duddhi, Police Station Pipari, District Sonbhadra. A survey was conducted by Forest Department. Forest Settlement Officer took the view that aforesaid land forms part of "Reserved Forest" hence, without any opportunity to applicants directed for expunction of their names and to record the said land as "Reserved Forest".
4. Applicants preferred Appeal No. 3432 of 1990, Meena Vs. State and Appeal No. 3433 of 1990, Munni vs. State which came to be decided by Additional District and Sessions Judge, Sonbhadra vide order dated 14.03.1991. Appeals were allowed and order of Settlement Officer dated 31.08.1990 was set aside. Thereafter, State preferred Review Application No. 107 of 1992 which was allowed by Additional District Judge, Sonbhadra vide order dated 13.05.1992 and Appellate order dated 14.03.1991 in Appeals No. 3432 of 1990 and 3433 of 1990 was set aside.
5. Applicants 1 and 3 challenged aforesaid order in Writ Petition No. 46236 of 2000 wherein an interim order was passed on 24.10.2000 and order dated 13.05.1992 was stayed. This Court was also directed to maintain the status quo with regard to nature, condition and possession of suit property.
6. A Forest Guard, Ashok Kumar Pal made a complaint resulting in registering of Case No. 13 of 2004-05 under Sections 5/26 of Act, 1927 on 17.07.2004 alleging that applicants were found illegally clearing Forest when Forest Guard was on duty and when workers saw them, they ran away. An enquiry was directed by Forest Director, Renukoot to be conducted by Forest Range Officer who submitted report dated 22.05.2005 confirming report of Forest Guard dated 17.07.2004 that applicants caused damage to forest property and were indulged in illegal cutting off trees and other forest property. Thereafter, Challani Report was submitted by respondent-2, Divisional Forest Officer before Civil Judge (Junior Division)/Judicial Magistrate, Duddhi, Sonbhadra and taking cognizance thereof summons have been issued to applicants by concerned Magistrate on 28.06.2005.
7. It is urged that Magistrate has taken cognizance without application of mind in a mechanical manner. It is also said that aforesaid case could have proceeded as Summons case but Magistrate has not followed mandatory provision of Section 204(2) Cr.P.C..
8. Cognizance has been taken by Magistrate for violation of Section 5 of Act, 1927 for which punishment is provided in Section 26 of Act, 1927. Section 5 as principally enacted by Central Legislature has been substituted by U.P. Act No. 23 of 1965 with effect from 23.11.1965 and reads as under:-
"5. Bar of accrual of forest rights.--After the issue of the notification under section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a 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, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest-produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf."
9. Similarly, Section 26 also has certain amendment in State of U.P. Section 26(1)(a) has been substituted by U.P. Act, No. 23 of 1965 with effect from 23.11.1965 and thereafter in Clauses (b),(e) and (f) in sub-section (1) of Section 26, there was further amendments made by U.P. Act. No. 1 of 2001. Section 26 as amended in State of U.P. and stood at the time of incident in question reads as under:-
"26. Acts prohibited in such forests.-- (1) Any person who--
(a) makes any fresh clearing or does any other act prohibited by section 5, or"
(b) sets fire to a reserved forest or to a forest in the land in respect of which a notification under Section 4 has been issued, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;
(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf;
(d) trespasses or pastures cattle, or permits cattle to trespass;
(e) causes any damage by negligence in felling any tree or cutting or removing any timber; (e) causes any damage by negligence in felling any tree or cutting or dragging any timber;"
(f) fells, girdles, lops, or burns any tree or strips off the bark or leaves from, or otherwise damages, the same or any forest produce;
(g) quarries stone, burns lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;
(h) clears or breaks up any land for cultivation or any other purpose;
(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares; or
(j) in any area in which the Elephants' Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made, shall, for an act under clause (b) or clause (f) or clause (g) or clause (h), be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and on the second and every subsequent conviction for the same offence, with imprisonment for a term which may extend to two years, or with fine which may extend to twenty thousand rupees but which shall not be less than five thousand rupees, or with both, and for an act under any of the other clauses, be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both and on the second and evers subsequent conviction for the same offence, with imprisonment which may extend to six months, or with fine which may extend to two thousand rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.
(2) Nothing in this section shall be deemed to prohibit--
(a) any act done by permission in writing of the Forest-officer, or under any rule made by the State Government;
(b) the exercise of any right continued under clause (c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.
(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the State Government may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion thereof the exercise of all rights of pasture or to forest-produce shall be suspended for such period as it thinks fit." (UP. Amendments are shown in Bold letters)
10. As per the case set up by Forest Department, disputed land is a part of "Reserved Forest" in view of Notification dated 14.04.1976 issued under Sections 4/20 of Act, 1927 and no clearance could have been made therein and it constitute an offence under Section 5 punishable under Section 26 of Act, 1927. A copy of complaint filed before Magistrate (Annexure-8 to the application) also shows the name of witnesses, Ashok Kumar Pal, Forest Guard and Ghulam Nemani, Forest Inspector (वन दरोगा) hence it cannot be said that there is any violation of Section 204(2) of Cr.P.C.
11. I also find that special powers have been conferred upon Forest Officer to make investigation and on the said report Magistrate shall proceed and also evidence recorded during such investigation is admissible in trial before Magistrate. In this regard, Section 72 of Act, 1927 reads as under:-
"72. State Government may invest Forest-officers with certain powers.--
(1) The State Government may invest any Forest-officer with all or of the following powers, that is to say:--
(a) power to enter upon any land and to survey, demarcate and make a map of the same;
(b) the powers of a Civil Court to compel the attendance of witnesses and the production of documents and material objects;"
(c) power to issue a search-warrant under the Code of Criminal Procedure, 1898 (5 of 1898)*; and"
(d) power to hold an inquiry into forest-offences, and, in the course of such inquiry, to receive and record evidence."
(2) Any evidence recorded under clause (d) of sub-section (1) shall be admissible in any subsequent trial before a Magistrate, provided that it has been taken in the presence of the accused person."
12. The procedure of trial therefore, in the present case has to be considered in the light of special provisions of Act, 1927 read with Cr.P.C. and at this stage I am not satisfied that there is any violation of any procedural statutory provisions which may vitiate the cognizance of case taken by Magistrate. I find no merit in the submission.
13. Application lacks merit and is accordingly dismissed.
Order Date :- 10.7.2019 Siddhant Sahu/AK