Arjun Behera vs State of Orissa

S. Acharya, J.—One of the four accused persons, convicted u/s 27(3)(c) of the Orissa Forest Act (hereinafter referred to as the ''Act'') both by the trial Court and the appellate Court, has preferred this Criminal Revision against the judgments of conviction arid the sentence passed against him thereunder.

The prosecution case against the Petitioner and the other three accused persons is that they illegally dug earth from an area of Ac. 0.18 decimals of land inside Sunajhari reserve forest and were raising ridges thereon. On the above allegation they were convicted u/s 27(3)(c) of the Act.

Mr. Misra, the learned Counsel for the Petitioner, contends that in this case the prosecution has not adduced any evidence to establish the fact that the Divisional Forest Officer, before the specified date in the notification issued u/s 21 of the Act, got an Oriya translation of the said notice published at a conspicuous place in every town and village in the neighbourhood of the forest in question. So, in the absence of proof of the said fact, Mr. Misra contend''s that the conviction of the accused persons cannot be maintained. In support of his above submission, Mr. Misra has cited the decision reported in Sadhu Patra and Ors. v. The State of Orissa 36 (1970) C.L.T. 395. In paragraph 5 of the said decision it has been held that the prosecution has to prove that the notification has been published in the manner and in accordance with the provisions of Section 21 of the Indian Forest Act. The absence of proof of the publication of the said notification, as has peen found in the said case, is an infirmity in the prosecution case.

Mr. Misra has also cited the decision of the Patna High Court reported in Chandrama Pd. Mishra and Ors. v. The State of Bihar 1963 (1) Cri.L.J. 134. It has been held in that decision that the prosecution should prove according to law the issue of the notification under Sections 29 and 30 of the Indian Forest Act and that the Collector got the notifications issued u/s 30 affixed in the manner provided in Section 31 of the said Act. Where, therefore, there is no evidence, nor is there any finding in the judgments of the Courts below that the accused had any knowledge of the notifications issued under Sections 29 and 30 of the Act, specially of the latter, conviction of the accused u/s 33(1)(c) of the Act is bad and deserves to be set aside.

Sections 21 and 31 of the Indian Forest Act, referred to in the Orissa and the Patna decisions, are in pari materia with the provisions of Section 22 of the Orissa Forest Act. That being so, the above observations and decisions in the aforesaid cases directly apply to a case where there is absence of publication of notification u/s 22 of the Orissa Forest Act. I am in agreement with the above-mentioned decisions, and in view of the law laid down therein, the conviction of the Petitioner in this case cannot be maintained, as there is no evidence in this case, that the provisions of Section 22 were complied with in respect of the forest in question or that the accused-Petitioner had atlest knowledge of the notification issued u/s 21 or Section 22 of the Orissa Forest Act.

Accordingly, the order of conviction of the Petitioner and the sentence passed against him thereunder are set aside and he is acquitted of the said offence.

As this matter has come up before me in my revisional jurisdiction and the entire case record is before me, and the ground on which the Petitioner is being acquitted applies squarely also to the other Adivasi co-accused persons in this case, I, in the interest of justice, deem it just and proper to set aside the orders of conviction and sentence passed against them though they somehow have not been joined as Petitioners in this revision. Prasad Gareri Vs. Mt. Kesari and Another, , supports such an action. So, the orders of conviction and sentence passed against the other three co-accused persons in 2(b) CC 21 of 1973 are also set aside. I do not, however, know if these accused persons have already under gone the short period of imprisonment passed against them by the Courts below. If by now those accused persons have not been apprehended and have not already undergone the imprisonment imposed against them, they ate not to be apprehended and are not to undergo the imprisonment imposed on them in this case.

The revision petition is accordingly allowed.