Jharkhand High Court
Mangleshwar Dubey vs State Of Jharkhand & Ors. on 15 September, 2011
Author: Prashant Kumar
Bench: Prashant Kumar
Cr. M.P. No. 744 of 2006
With
Cr. M.P. No. 1046 of 2002
With
Cr. M.P. No. 1104 of 2002
With
Cr. M.P. No. 738 of 2006
With
Cr. M.P. No. 741 of 2006
With
Cr. M.P. No. 420 of 2005
In the matter of an applications under Section 482 of the Code of Criminal
Procedure, 1973
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Mangleshwar Dubey .... .... ... ... Petitioner (In all cases) Versus
1. The State of Jharkhand
2. The District Forest Officer, Forest Division (North) District Daltonganj Opposite parties(In all cases) ....
PRESENT THE HON'BLE MR. JUSTICE PRASHANT KUMAR For the Petitioner : M/s Rajeev Ranjan Tiwary, Vishal Kumar Tiwari.
Saket Upadhyay, Amit Kumar Tiwary, (In all cases) For the State : Mr. S.N. Rajgarhia, Additional PP (In all cases) ....
By Court In all the aforesaid cases, common questions of law arose, thus are heard together and dispose of by this order.
2. It appears that in all the above cases, learned Chief Judicial Magistrate, Daltonganj took cognizance against petitioner for the offences under Sections 33 and 63 of the Indian Forest Act and which are under challenge in these applications.
3. It is submitted by Sri Rajeev Ranjan Tiwari, learned counsel for petitioner in all cases, that lands in question are not forest lands, therefore, provisions of Indian Forest Act have no application. It is further submitted that petitioner is in possession of the said lands from long ago and by virtue of aforesaid possession they perfected their title over the same. It is submitted that at the earlier occasion also, Forest Department prosecuted petitioner on similar allegation, but in that case, after full fledged trial, petitioner was acquitted by Judicial Magistrate, 1st Class. It is submitted that in present cases petitioner implicated with malafide intention with a view to harass him. Accordingly, it is submitted that impugned order cannot be sustained.
4. Sri S.N. Rajgarhia, learned Additional PP appears on behalf of the State submits that in these cases, counter-affidavits were filed by State and in the said counter-affidavits notification issued under Section 29 of the Indian Forest Act annexed. He submits that aforesaid notification reveals that plot numbers 309,310,314 and 315 of Choura forest are notified as protected forest. He further submits that in the prosecution reports, it is alleged that petitioner ploughed aforesaid lands for cultivation purpose and he confessed his guilt before the Forest Guard Bishrampur. It is further submitted that in the earlier case, petitioner was acquitted, because Forest Department did not file notification to show that Choura Forest is a protected forest, thus acquittal of petitioner in the earlier case was on a technical ground which had no bearing in the present case.
5. Having heard the submissions, I have gone through the record of the case. From perusal of prosecution reports of the aforesaid cases, it appears that on different dates, petitioner ploughed forest land of Choura forest for the purpose of cultivation. It is also alleged that on query made by forest guard, petitioner disclosed that he had filed Survey Appeal claiming therein that he is possession of said lands and till the disposal of the said appeal, he will continue to show that he is in his possession of said lands. It is alleged that lands pertaining to plot numbers 309,310,314 and 315 of Choura Forest are forest land, thus ploughing of said lands for the purpose of cultivation is an offence under Section 33 of the Indian Forest Act. It is worth mentioning that petitioner made averments that he is in possession of said lands and with a view to show his possession, he has annexed photocopy of Banda Purcha and different rent receipts. However petitioner did not enclose any document to show his title over said lands. On the other hand in the counter-affidavit State annexed Gazette Notification dated 19th of July 1955 issued under Section 29 of the Indian Forest Act which shows that plot numbers 309,310,314 and 315 of Choura Forest are protected forest. As per Section 33 of the Indian Forest Act, if any person contravenes the notification under Section 30 or Rule made under Section 32 of the Indian Forest Act, then he is liable to be punished. Section 32 of the Indian Forest Act gives power to the State Government to frame Rule preventing any person from cultivating or breaking forest land for cultivation or other purpose. It is worth mentioning that in pursuance of Section 32 of the Indian Forest Act, a Rule had already framed by the State Government, preventing any person from clearing and/or breaking the lands for cultivation purpose. Under the said circumstance, in view of allegation made in prosecution report, prima-facie an offence under Section 33 of the Indian Forest Act is made out against petitioner.
6. It is true that on an earlier occasion, petitioner was acquitted by a competent Court on similar charge. But from perusal of paragraph 6 of the aforesaid judgment(Annexure-9), it is clear that in that case, notification showing that land in question is a protected forest had not been produced, because of that petitioner was acquitted. Thus I find that in the earlier case, petitioner was acquitted on technical ground. Thus judgment of said case has no bearing on the merits of these cases.
7. Sri Tiwari also pointed out that offence under Section 63 of the Indian Forest Act is not made out. From perusal of prosecution reports of present cases, I find substance in submission of Sri Tiwari. There is nothing in the prosecution reports to show that petitioner tempered, counterfeit, deface or alter marks of any tree. Thus, offence under Section 63 of the Indian Forest Act is not made out. Under the said circumstance, the learned court below is directed to keep the aforesaid observation in mind at the time of explaining the substance of accusation and/or framing of charge.
6. In view of the discussions made above, I am not inclined to interfere with impugned orders. With the aforesaid observations and directions, these applications are disposed of.
(Prashant Kumar, J.) Jharkhand High Court, Ranchi Dated 15.09.2011 Binit/NAFR