Rameshwar Prasad vs State of Uttarakhand

Umesh Chandra Dhyani, J.—An F.I.R. was lodged against four named accused at the instance of Rameshwar Prasad (present petitioner) for the offence punishable u/s 379 I.P.C. A charge-sheet was submitted against the accused persons for the offences punishable under Sections 379, 411 I.P.C. and Section 26 Indian Forest Act, 1927. Criminal trial against the accused persons is pending adjudication before Judicial Magistrate, Haridwar. In the meanwhile, an application for release of vehicle was moved by it''s owner before the trial court, who dismissed such application. The owner of the vehicle moved a criminal revision before the Sessions Judge, Haridwar, who, in turn, after hearing both the parties, allowed the criminal revision, and released the vehicle in favour of it''s owner subject to fulfillment of certain conditions.

The owner of timber moved an application before the learned Judicial Magistrate for it''s release in his favour. Learned trial court, vide order dated 18.06.2013, dismissed such an application holding that the Court does not have the jurisdiction to release such timber in view of Section 52D of Indian Forest Act, 1927 (Uttarakhand Amendment 2002). Aggrieved against the same, the owner of the timber moved criminal revision before the learned Sessions Judge, who after considering the issue, dismissed the revision vide order dated 17.05.2014. Being aggrieved against the same, present criminal writ petition is filed by the writ petitioner.

Section 4 of the Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 (as applicable in State of Uttarakhand), provides for restriction on felling and removal of trees. It says that: Except as provided in this Act or the rules made thereunder, no person shall-

(a) fell any tree standing on any land, whether included in a holding or not;

(b) cut, remove or otherwise dispose of any tree other than a tree which is completely dead and has fallen without the aid of human agency on any such land.

Shesham is placed at Sl. No. 34 of Schedule-I of the aforesaid Act. Schedule-I deals with timber trees. Shesham trees were standing in the holding of the petitioner when theft was committed. It is provided u/s 5 of the 1976 Act that the competent authority may, on the application of any person entitled to fell standing trees or to cut, remove or otherwise dispose of a fallen tree, after making such inquiry, at it thinks fit, grant permission to him to do so. Such permission shall not be refused, if the tree constitutes danger to person or property. In certain contingencies, it is provided that such permission shall not be required for the felling of any tree with a view to appropriating the wood or leaves thereof for bonafide use, purposes of fuel, fodder, agricultural implements or other domestic use. In a nutshell, the petitioner was entitled to fell standing trees or to cut or remove the same with the permission of the competent authority. This fact is under no dispute that the trees, timber of which was stolen by the thieves, belonged to the petitioner''s holding.

Section 52-D of the Indian Forest Act, 1927 (Uttarakhand Amendment) speaks about the forest produce belonging to the State Government. The timber is definitely a forest produce, but in the instant case, the forest produce did not belong to the State Government, and instead, the same belonged to the petitioner, in as much as, the same was part of the holding of the petitioner and was not the part of either reserved forest, private forest or notified area. Provisions of the India Forest Act, 1927 are applicable to reserved forest, and also notified areas. The Uttar Pradesh Private Forests Act, 1948 will be applicable to the private forests. The holdings, like the present one, will be governed by the provisions of the Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976.

It is, in such view of the matter, that the court below ought to have given the timber in the supurdagi of it''s owner, on filing his personal bond and undertaking, as learned Magistrate would have thought fit. In a nutshell, since the forest produce did not belong to the State Government and it was the part of the private holding of the petitioner, therefore, the application of the petitioner for giving such timber in his supurdagi ought to have been allowed by the trial court.

The writ petition succeeds. Order under challenge is set aside. 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Haridwar is directed to give timber in supurdagi of it''s owner/writ petitioner on his filing a personal bond and furnishing sureties/appropriate undertaking, as the learned Judicial Magistrate deems fit.