Madhya Pradesh High Court
Bhuru vs The State Of Madhya Pradesh on 1 August, 2018
1
CRR No.3759/2017
Bhuru Vs. State of M.P.
Indore, Dated: 01/08/2018
Shri Pratyush Mishra, Counsel for the applicant.
Shri Vibhore Khandelwal, Public Prosecutor for the
respondent/State.
This criminal revision under Section 397/401 of CrPC has been filed challenging the judgment and sentence dated 27/9/2017 passed by the First Additional Sessions Judge, Jhabua in Criminal Appeal No. 176/2016 by which the judgment dated 20/10/2016 passed by the JMFC, Jhabua in Criminal Case No. 1742/2015 by which the applicant has been convicted under Section 26 (1-J) of Indian Forest Act and has been given the benefit of Probation of Offenders Act.
The necessary facts for the disposal of the present revision in short are that it is alleged that on 22/7/2015 a Beat-Guard Naval Singh (PW-1) posted in Mokampura Beat Division Jhabua had gone on patrolling in Kalyanpura Beat No. 270. There, the forest department had dug pits with the help of the JCB Machine. He found that the applicant, by cultivating the forest land, was trying to encroach upon the forest land for the purposes of cultivation. Accordingly, a POR was registered. The applicant was arrested and, after completing the investigation, the complaint for offence under Section 26 (1-J) of Indian Forest Act, 1927.
The charge under Section 26 (1-J) of the Indian Forest Act was framed by order dated 17/12/2015 and after recording the evidence and examining the accused/applicant, the trial Court, by judgment dated 21/10/2016, convicted the applicant for offence under 2 CRR No.3759/2017 Bhuru Vs. State of M.P. Section 26 (1-J) of Indian Forest Act and, after extending the benefit of Probation of Offenders Act, released him on the conditions that he would not repeat the offence of the similar nature during the next three years and would plant at least 50 plants and would look after them and would also hand over the possession of the forest land to the Forest Department etc., and the appeal filed by him has also been dismissed.
Challenging the judgments passed by the Courts below, it is submitted by the counsel for the applicant that in fact the applicant is a Forest Dwelling Scheduled Tribe as defined under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short "Act, 2006") and since his application for conferment of forest rights was pending, therefore, in the light of Section 4 sub-Section 5 of the Act, 2006, the applicant was entitled to maintain his possession over the forest land till the recognition or verification of the procedure is completed. It is further submitted that although the applicant did not produce any document before the trial Court in support of his contentions that his application for conferment of the forest rights was pending, however, those documents were placed on record in the appeal and without considering the effect of those documents in detail, the appellate Court, in paragraph 14 of the judgment, came to the conclusion that it cannot be inferred from the documents placed on record that the forest rights were already confirmed in respect of the land under encroachment. It is submitted that the appellate Court did not consider the effect of Section 4 sub-Section 5 3 CRR No.3759/2017 Bhuru Vs. State of M.P. of the Act, 2006 and, therefore, the judgment and sentences passed by the Courts below are perverse and they are liable to be set aside and the applicant is entitled to be acquitted.
Heard the learned counsel for the applicant as well as the State.
It is undisputed fact that the applicant did not place any document on record before the trial Court to show that he had ever made any application for grant of forest rights in respect of the land which is in his possession as a trespasser/encroacher. However, he filed certain documents before the appellate Court.
I have perused the record of the appellate Court. It appears that the applicant, without supported by an application under Section 391 of CrPC, had filed some photocopies of the documents along with a printed list of documents to claim that the Gram Sabha has passed a resolution recommending the conferment of the forest rights on the applicant in respect of the land in dispute and the matter was recommended by Van Adhikar Samiti and the said proceedings were pending for final adjudication. Similarly, the applicant has not filed any application under Section 391 of CrPC before this Court also for taking the additional evidence on record.
The first question for determination is that whether the appellate Court, without there being an application under Section 391 of CrPC, can look into the additional documents/evidence filed by the applicant along with a printed list of documents or not.
Section 391 of CrPC reads as under:-
4 CRR No.3759/2017Bhuru Vs. State of M.P. "391. Appellate Court may take further evidence or direct it to be taken. - (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
Thus, it is clear that in order to lead further evidence, it is essential for the appellant to prove that the additional evidence is necessary for the disposal of the appeal and the appellate Court, after recording its reason, may either take said evidence by itself or direct it to be taken by a Magistrate or by a Court of Sessions/Magistrate. Therefore, it is clear that the appellant, relying upon the additional evidence, must prove, by filing the necessary application, that the additional evidence is essential for the just 5 CRR No.3759/2017 Bhuru Vs. State of M.P. decision of the appeal. The applicant shall also be under obligation to clarify as to why he did not place such documents on record before the trial Court. In the present case, the appellant did not file any application under Section 391 of CrPC before the appellate Court for taking the additional evidence on record for prima facie establishing that the said documents are essential for the just decision of the appeal/case. There is also no explanation as to why such documents were not placed on record before the trial Court. Under these circumstances, this Court is of the considered opinion that without supported by an application under Section 391 of CrPC, the applicant could not have filed the additional evidence along with a printed list of documents on record. However, as the appellate Court has considered the effect of the documents filed before it, therefore, it becomes essential for this Court to consider that whether the documents which were placed on record as an additional evidence by the applicant before the appellate Court were essential for just decision of the appeal or not.
Section 2 sub-Section (c) of the Act, 2006 defines Forest Dwelling Scheduled Tribes as under:-
""forest dwelling Scheduled Tribes"means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities;
From the plain reading of this Section, it is clear that 6 CRR No.3759/2017 Bhuru Vs. State of M.P. only those persons shall be treated as "forest dwelling Scheduled Tribe" who primarily resides in and depend on the forest or forest land for bonafide livelihood needs and includes the Scheduled Tribe pastoralist communities. Thus, in order to take advantage of Section 2 sub-Section (c), the appellant must prove the following ingredients:-
(i) that he is the member of a community of scheduled tribe who primarily resides in, and
(ii) depend on the forest or forest land for bonafide livelihood needs.
In the present case, undisputedly the applicant is the resident of a village falling within the Gram Panchayat and Gram Sabha, therefore, prima facie it appears that the applicant does not reside in the forest area, but he is the resident of revenue area. Merely because the applicant is a member of the Scheduled Tribe who has encroached upon the forest land would not mean that he would automatically become a "forest dweller Scheduled Tribe" entitled for the forest rights over the forest land under his possession/encroachment.
I have gone through the documents which were filed by the applicant before the appellate Court from which it merely appears that the Gram Sabha as well as Van Adhikar Samiti had recommended the name of the applicant for grant of forest rights, but it is nowhere mentioned that the applicant primarily resides in forest area. On the contrary, the fact that the resolution was passed by the Gram Sabha clearly shows that the applicant is the resident of village Talawali falling within the jurisdiction of Gram Sabha. There is nothing on record to 7 CRR No.3759/2017 Bhuru Vs. State of M.P. show that whether this village Talawali falls within the forest area or not. In absence of this prima facie evidence, it cannot be presumed that the applicant primarily resides in forest area. Although, the Van Adhikar Samiti as well as Gram Sabha might have recommended the name of the applicant for grant of forest rights on the land under encroachment by the applicant, but that by itself would not make the applicant entitled to take advantage of Section 4 sub-Section 5 of the Act, 2006 unless and until first ingredient of "forest dwelling Scheduled Tribe" i.e. the applicant must prima facie reside in the forest area is satisfied. Under these circumstances, it is clear that once the applicant cannot be said to be the "forest dwelling Scheduled Tribe", then he cannot take advantage of pendency of the proceedings for grant of forest rights under Section 4 sub-Section 5 of the Act, 2006 and is not entitled to retain his possession over the land in question as a trespasser/encroacher during the pendency of the said proceedings.
It is fairly conceded by the counsel for the applicant that even till today the forest rights have not been conferred on the applicant so far.
Once this Court has already come to a conclusion that the applicant is not entitled for the protection of retaining his possession over the forest land as provided under Section 4 sub-Section 5 of the Act, 2006 for the simple reason that the applicant has failed to prove that he is the "forest dwelling Scheduled Tribe", this Court is of the considered opinion that the Courts below did not commit any mistake in convicting the applicant for offence under 8 CRR No.3759/2017 Bhuru Vs. State of M.P. Section 26 (1-J) of the Indian Forest Act.
So far as the question of sentence is concerned, the trial Court, subject to certain conditions, has already extended the benefit of Probation of Offenders Act to the applicant. Under the facts and circumstances of the case as the applicant has already been given the benefit of Probation of Offenders Act, in the considered opinion of this Court, the said order does not require any interference.
Accordingly, the conviction and sentence passed by the JMFC, Jhabua by order dated 21/10/2016 in Criminal Case No. 1742/2015 and passed by the First Additional Sessions Judge, Jhabua by judgment dated 21/9/2017 in Criminal Appeal No. 176/2016 are hereby affirmed.
This revision fails and is accordingly dismissed.
Digitally signed by ALOK KUMAR Date: 2018.08.04 17:04:22 +05'30' (G.S.Ahluwalia) AKS Judge