Jharkhand High Court
Anju Khemka vs The State Of Jharkhand ... ... Opposite ... on 18 May, 2023
Author: Ambuj Nath
Bench: Ambuj Nath
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 736 of 2008
1. Anju Khemka
2. Anil Khemka
3. Rajni Khemka ... ... Petitioners
- Versus -
The State of Jharkhand ... ... Opposite Party
WITH
Cr. Revision No. 928 of 2008
1. Shekh Sabbir Ali
2. Dilip Mandal ... ... Petitioners
Versus -
The State of Jharkhand ... ... Opposite Party
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CORAM: - HON'BLE MR. JUSTICE AMBUJ NATH
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For the Petitioner(s) : M/s. Rupesh Singh, Advocate For the State : M/s. Priya Shrestha, Spl.P.P
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C.A.V. on 20.04.2023 Pronounced on 18.05.2023 Heard the parties Both these revision applications arise out of a common order; accordingly, they are being disposed of by a common order.
The petitioners Anju Khemka, Anil Khemka and Rajni Khemka in (Cr. Rev No. 736/2008) and petitioners Shekh Sabbir Ali and Dilip Mandal in (Cr. Rev No. 928/2008) have filed these applications against the order dated 19.07.2008, passed by Sri S. N. Tiwari, learned J.M.F.C., Dumka in O.C.R. Case No. 145A/2003, whereby and wherein, the learned J.M.F.C., Dumka, dismissed the application filed by the petitioners for discharge in connection with the aforesaid case registered under sections 33, 41, 42 and 52 of the Indian Forest Act (Bihar Amendment Act 1989) and under section 02 of the Forest Conservation Act.
The prosecution case was instituted on the basis of official complaint filed by Sri Arvind Kumar Jha, Forest officer Dumka, alleging therein that on 22.09.2003, he received confidential information that stone chips, which were quarried from Bhavnathpur reserved forest area was being transported on two dumpers bearing registration number WB-37-4883 and WB- 11- 9445. The informant and the other members of the forest department rushed to the place of occurrence, on seeing them the drivers of both the vehicles decamped away with the vehicles loaded with the stone chips. Stone chips were found scattered at the place of occurrence. Later on, both the vehicles were seized from a place near D.C. More Dumka. The drivers of the vehicles stated that the stone chips were being transported after purchasing them from Ananpurna stone industries. They were asked to produce the documents relating to purchase and transportation of the stone chips but no document was produced. Subsequently on 29.09.2003, the official complaint was lodged. The petitioners Anju Khemka, Anil Khemka and Rajni Khemka (in Cr. Rev No. 736/2008) are owners of the Hywas while the petitioners Shekh Sabbir Ali and Dilip Mandal in (Cr. Rev No. 928/2008) are their drivers.
Mr. Rupesh Singh, learned lawyer appearing on behalf of the petitioners submitted that the confiscation proceeding was initiated before the Divisional Forest Officer, Dumka vide confiscation case no. 13/2003. The Divisional Forest Officer, Dumka ordered for confiscation of both the Hywas. Thereafter, the owners of the vehicle filed an appeal before the Deputy Commissioner, Dumka who allowed the appeal and set aside the order of the Divisional Forest Officer, Dumka, on the ground that it was not possible for the accused persons to carry the seized stone chips on the same day and transport it to a distance of 50 km from where the vehicles were seized.
The forest department preferred a revision application before the Divisional Commissioner, Dumka. Their revision application was dismissed on the ground that the divisional forest officer, Dumka without formally recording the evidence had passed confiscation order. Accordingly, it was submitted that when in the quasi legal proceeding, the offence alleged was not substantiated, their criminal trial is bound to fail.
Reliance has been placed upon the decision of the Hon'ble Supreme Court reported in Radheyshyam Kejriwal Vs State of West Bengal as reported in (2011) 3 SCC 581 wherein it was held that:-
"In case where a person has been acquitted in quasi-judicial proceeding he cannot be held guilty in a corresponding criminal case as the burden of proof in a criminal case is more stringent than in a quasi-judicial proceeding"
Reliance has also been placed upon the judgment of the Jharkhand High Court passed in Md. Fasiuddin & Ors vs State of Bihar and Another as reported in 2012 (3) JCR 602, Jharkhand wherein it was held that:-
"Under section 33 of the Indian forest Act there is no provision of vicarious liability".
From the perusal of the order of confiscation passed by the divisional forest officer, Dumka, in confiscation case no. 13 of 2003, it is apparent that the Divisional forest officer, Dumka passed the order on the basis of the offence report and other documents which were attached with the offence report. Statement of the witnesses was not recorded nor the documents on which the forest department was relying was formally proved.
From the perusal of the order of Deputy Commissioner, Dumka, in confiscation appeal number 1/2004-05, it appears that the Deputy Commissioner Dumka, has not set aside the confiscation order on merit but had set aside the confiscation order on the presumption that the offence alleged couldn't have been committed within such a short period of time. It is not the case of the prosecution that the stone chips were transported immediately after quarrying From the perusal of the order of the Divisional Commissioner, Dumka, in the revision application preferred by the forest department, it appears that the revision application was dismissed on the ground that the divisional forest officer in the confiscation case had neither recorded the statement of the witnesses nor has formally proved the document on which the forest department was relying upon.
Thus, it is evident that the quasi-judicial order passed in confiscation appeal no 1/2004-05 was not on merit but on surmises and conjectures. The Divisional commissioner, Dumka, has also dismissed the appeal of the forest department on the ground that in the confiscation proceeding, divisional forest officer Dumka, has neither recorded any statement nor documents were formally proved.
It is apparent that both these applications were not decided on merit, but on technical grounds.
Considering the aforesaid facts; I am of the opinion that the petitioners cannot be given benefit of the fact that the confiscation order passed by the Divisional forest officer, Dumka, was set aside in confiscation appeal and the same was approved by the revisional authority. There is ample material on the record for the learned court below to proceed with the trial of this case. The court below has rightly dismissed the application for discharge filed by the petitioners.
Both these revision applications are dismissed Pending I.A., if any, also stands disposed of.
(Ambuj Nath, J.) Saurabh