Khirod Modi And Ors vs State Of Jharkhand And Ors

Heard Mr. Manoj Kumar, counsel appearing on behalf of the petitioners.

Heard Mr. Hardeo Prasad Singh, counsel appearing on behalf of the opposite parties.

This petition has been filed for quashing the order dated 17.03.2010 passed by learned Additional Chief Judicial Magistrate, Civil Judge, Sr. Division at Ghatshila, East Singhbhum and also for quashing the entire criminal proceeding in C/3 Case no. 25 of 2010 instituted under section 33 of the Indian Forest Act, 1927 and Bihar Forest Amendment Act 9 of 1990 which is said to be pending in the court of learned Additional Chief Judicial Magistrate at Ghatshila, East Singhbhum.

The counsel for the petitioners, while assailing the impugned order, submits that the impugned order is fit to be quashed on account of following grounds:

(a) No offence under Section 33 of Indian Forest Act, 1927 is made out against the petitioners in view of the fact that the area involved in this case was never declared as protected forest under Section 30 of Indian Forest Act, 1927. However, during the course of argument, he has not been able to point out any specific plea in this regard from the petition, which has been filed before this Court.

(b) There is no seizure from the place of occurrence and therefore, the entire prosecution has to fail.

(c) The case is barred by limitation, in as much as, the allegation which has been made, came to the knowledge of the informant in the year 2002 and cognizance has been taken in the year 2010. As per the provisions of Section 33 of the Indian Forest Act, 1927, the punishment prescribed is six months, or with fine which may extend to Rs. 500/-, or with both and accordingly, the cognizance was required to be taken within a period of one year as per the provisions of Section 468(2)(b) of the Code of Criminal Procedure. The counsel, by referring to show-cause notice, submits that the date of knowledge in connection with the alleged offence is 14.05.2002 and the cognizance has been taken on 17.03.2010 and therefore, the entire proceeding is barred by limitation.

(d) There has been no damage caused to anybody and if any damage has been caused, the only remedy was to file a damage suit.

(e) In support of the submissions made, the counsel for the petitioners has relied upon following judgments:

(i) 2004 (2) JCR 450 (Jhr.) (Arun Kumar Agarwal vs. State of Jharkhand & Others);

(ii) 2006 (2) JLJR 445 (Anup Kumar Agrawal vs. State of Jharkhand); and

(iii) 2010 (2) JLJR 526 (Prasanna Kumar Mahapatra vs. State of Jharkhand and Ors.).

Counsel appearing on behalf of the opposite parties, on the other hand, submits as under:

(a) As per the provisions of Indian Forest Act, 1927 read with Bihar Amendment, it has been clearly provided that the punishment for the alleged offence in the instant case would be minimum term of six months, which may extend to two years and with minimum fine of Rs. 100/- which may extend to Rs. 5,000/-, or both and that, the offence under Section 33 would be both cognizable and non-bailable. He submits that this provision has been inserted vide Bihar Act 9 of 1990 with effect from 10.09.1990 and accordingly, as per the provisions of Section 468 of Code of Criminal Procedure, the period of limitation would be three years for taking cognizance. Moreover Section 468 of Cr.P.C. has to be read with Section 469 for starting point of limitation.

(b) The counsel further submits that in the First Information Report, the date of knowledge of the alleged offence has been clearly mentioned as 20.06.2008 and the document which has been referred to by the petitioners claiming to be the date of knowledge of the alleged offence, does not indicate anywhere about the alleged offence, rather it was only a show-cause relating to following violations:

i. The lease area has not been demarcated,

ii. The lease area is adjoining to the forest area,

iii. Safety zone has not been constructed to the lease area,

iv. The vehicle loaded with minerals is being transported in violation of the Forest Act, and

v. Mining is taking place outside the mining area.

The counsel also submits that as per the allegation which has been levelled against the petitioners in the instant case, it has been, inter alia, mainly alleged that the petitioners were dumping waste in the forest area which is outside the lease hold area. He submits that there is no such allegation levelled in the aforesaid show-cause relied upon by the petitioners. Accordingly, the point of limitation would start running from the date of knowledge as mentioned in the First Information Report, which has been mentioned as 20.06.2008 and the cognizance has been taken on 17.03.2010 within a period of three years from that date of knowledge.

(c) Counsel for the opposite parties has accordingly argued that the order taking cognizance is not barred by limitation.

(d) He further submits that notification issued under Section 29 of the Indian Forest Act, 1927 is a part of the First Information Report and it has been alleged in the First Information Report that the mining waste is being dumped in the area covered by the said notification and falls within the forest area. The counsel has also submitted that even if there is no seizure from the place of occurrence, the same is not fatal in view of the fact that the photographs were already taken, which also forms a part of the First Information Report.

(e) In response to the argument of the petitioners that there has been no damage caused, the counsel for the opposite parties submits that as per the First Information Report itself, damage has been caused to the forest area whose value has been assessed at Rs. 5 lakhs as mentioned in the documents annexed alongwith the First Information Report. He further submits that the filing of damage suit has nothing to do with the criminal liability involved in this case.

Section 33 of the Indian Forest Act, 1927 is quoted as under:

"33. Penalties for acts in contravention of notification under section 30 or of rules under section 32.- (1) any person who commits any of the following offences, namely:-

(a) fells, girdles, lops, taps or burns any tree reserved under section 30, or strips off the bark or leaves from, or otherwise damages, any such tree;

(b) contrary to any prohibition under section 30, quarries any stone, or burns any lime or charcoal or collects, subjects to any manufacturing process, or removes any forest-produce;

(c) contrary to any prohibition under section 30, breaks up or clears for cultivation or any other purpose any land in any protected forest;

(d) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30, whether standing, fallen or felled, or to any closed portion of such forest;

(e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion;

(f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid;

(g) permits cattle to damage any such tree;

(h) infringes any rule made under section 32;

Shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

(2) ............."

The aforesaid Section 33 of Indian Forest Act, 1927 has been amended with regard to its applicability in the State of Bihar by virtue of Bihar Act 9 of 1990 which was made effective from 10.09.1990. The punishment prescribed in section 33 of the Indian Forest Act, 1927 was amended to the following extent:

"shall be punishable with imprisonment for a minimum term of six months which may extend to two years or with minimum fine of one hundred rupees which may extend to five thousand rupees or with both. The offence under this section shall be cognizable and non-bailable."

After hearing the counsel for the parties and after considering the materials on record, this Court finds that it is the specific case of the complainant that date of knowledge of the alleged offence is 20.06.2008 as mentioned in the First Information Report itself. This Court further finds that so far as the argument of the petitioners regarding the show-cause notice dated 14.05.2002, which was issued to the petitioners, this Court finds that the same does not disclose the offence which has been alleged in this case against the petitioners. This Court finds that the same was issued by way of show-cause notice in connection with certain violations of the terms and conditions of the lease and violation of the Forest Act by indicating that the Forest Act was being violated as excess loaded trucks were being transported through forest road.

This Court finds that in the instant case, the allegation against the petitioners is that the petitioners have been dumping mining waste within the area covered by declaration under section 29 of Indian Forest Act, 1927 and a copy of the notification is a part of the First Information Report.

Accordingly, this Court finds that the period of limitation would not commence from date of show-cause notice i.e. 14.05.2002 as it does not cover the main allegation involved in this case, but the same would be the date, on which the alleged forest offence has come to the knowledge of the opposite parties. The date of knowledge has been mentioned in the First Information Report as 20.06.2008 and the date of cognizance is 17.03.2010. This is over and above the fact that the petitioners have advanced their argument ignoring the aforesaid Bihar Amendment. As per the provisions of Bihar Amendment read with Section 468 of the Code of Criminal Procedure, the punishment prescribed for the alleged forest offence is a minimum period of six months upto two years with or without fine and accordingly, the period of limitation would be three years and not one year, as claimed by the petitioners. Moreover the period of limitation would commence from the date of knowledge as per the provisions of Section 469 of the Code of Criminal Procedure. What is the date of knowledge is a matter of evidence to be raised and considered at appropriate stage.

So far as the point regarding seizure is concerned, this Court finds that although it is alleged that there is no seizure, but there are certain photographs filed with the F.I.R. and what would be the consequence of there being no seizure, cannot be decided in an application seeking quashing of the order taking cognizance and it is for the prosecution to prove the case on the basis of the evidence. Merely because there has been no seizure and photographs have been taken, the same alone cannot be a ground to quash the entire criminal proceedings and it can not be said that no useful purpose will be served by proceeding further in the criminal case.

So far as the argument of the petitioners that there has been no damage caused to anybody and if any damage has been caused, the only remedy is to file a damage suit, this Court finds that there has been specific averment in the report annexed with the First Information Report that a damage amounting to Rs. 5,00,000/- has been caused. There can be no dispute that the criminal procedure is not a procedure for realization of damage and the damage can be realized by filing a damage suit, but criminal liability can certainly be saddled over and above the civil liability of damage. Accordingly, this Court is of the considered view that contention of the petitioners that there has been no damage and accordingly the criminal case is fit to be quashed, is hereby rejected and this Court is of the view that the criminal proceedings involved in this case has nothing to do with the damage suit, if any.

So far as the claim of the petitioners that no offence under Section 33 of Indian Forest Act, 1927 has been made out, this Court finds that as far as the provisions of Section 29 of the Indian Forest Act, 1927 is concerned, there is a specific provision that the forest land and waste land comprised in any notification issued under Section 29(1) is to be called as protected forest. Accordingly, the case for the alleged offence which is involved in this case, has been filed for violation of the provisions of Forest Act and this Court finds that the learned court below, at the stage of cognizance, has given a prima facie view that a criminal case is made out against the petitioners and this Court finds that factual disputes are involved in this case. Thus, this argument of the petitioners is rejected.

So far as the judgment relied upon by the petitioners which is reported in 2004 (02) JCR 450 (Jhr.) is concerned, this Court finds that in the said case, it was held that no forest offence was committed in as much as the criminal case was instituted calling upon the petitioner of the said case to show-cause as to why JCB earth removing machine used for widening the road be not confiscated for alleged violation of Section 33 of Indian Forest Act, 1927 and this Hon'ble Court, while quashing the proceedings, found that admittedly in the said case, there was no case that the petitioner has been cutting and removing the trees and/or doing any mischief with the forest land for their personal benefit. In the instant case, there is an allegation against the petitioners that the petitioners have been throwing waste mining products outside their mining lease in the forest area causing damage to the forest land. Accordingly, this judgment does not apply to the facts and circumstances of this case.

So far as the judgment, which is reported in 2010 (2) JLJR 526 is concerned, in the said case there was an allegation of felling trees and there was no seizure to that effect. This Court finds that if there is an allegation of felling trees and there has been no seizure, the timber being a movable property, could have been removed and accordingly, this Court was of the view that in absence of seizure, the prosecution would never succeed. However, as held above, although there is no seizure, but there are photographs taken from the spot and it is for the prosecution to establish the case before the learned court below and merely because there is no seizure in the instant case, it cannot be said that the prosecution would never succeed. The case at hand requires evidence to be adduced.

The third judgment which has been relied upon by the petitioners is reported in 2006 (2) JLJR 445. In the said case, the allegation itself was vague as it was not specified on which side of the boundary illegal extraction was being made and who were the persons involved in the commission of offence and accordingly, the Hon'ble Court found that the continuation of criminal proceedings would be an abuse of the process of court. However, in the instant case, specific allegations have been made and accordingly, this Court finds that even this judgment does not apply to the facts and circumstances of this case.

In view of the aforesaid findings, this Court is not inclined to quash the criminal proceedings and accordingly, the instant case is hereby dismissed.

The petitioners have come before this Court at the stage of taking cognizance. It will be open to the petitioners to take various points available to them under law, before the learned court below at appropriate stage and decision of this case will not prejudice the case of the parties in any manner.

Interim order, if any, stands vacated.

Pending interlocutory applications, if any, are dismissed as not pressed.