Sri Surendra Prasad Sahu and Sri D.P. Singh vs The State of Jharkhand and The Divisional Forest Officer, Dhanbad Forest Division, Dhanbad. and Another

R.R. Prasad, J.—Heard learned counsel appearing for the petitioners and learned counsel appearing for the State. This application has been filed for quashing of the entire criminal proceeding of B.F. Case No. 144 of 2000 including the order dated 03.10.2000 passed by the learned Chief Judicial Magistrate, Dhanbad whereby and whereunder learned Chief Judicial Magistrate, Dhanbad took cognizance of the offence punishable u/s 33 of the Bihar Forest Act, 1927 against the petitioners.

It appears that when these two petitioners and one other person were found indulging themselves in doing mining work over the land situated within the protected forest, an offence report was submitted on 23.11.1998. After investigation, the prosecution report dated 08.08.2000 was submitted, upon which cognizance of the offence was taken on 03.10.2000. That order is under challenge.

Mr. Mehta, learned counsel appearing for the petitioners submits that the petitioners cannot be said to have committed any offence by doing mining work over the land which has been claimed to be the forest land as when the petitioners had earlier been restrained from doing mining work over the piece of land, alleged to be the forest land by the Forest Department, the petitioners did prefer writ application before this Hon''ble Court vide CWJC No. 66 of 1999 (R), which was admitted on 11.02.1999 whereby an order was also passed that "during the pendency of the writ petition, the respondents are restrained from interfering with the mining activities of the petitioner in connection with the project commonly known as Muraidih Open Cast Project."

It was further submitted that though the Forest Department has claimed the land as protected forest by virtue of the Notification issued in the year 1964, but it lost its force after expiry of 30 years. Thereafter, no further notification has been made and if any further notification would have been made after expiry of thirty years reference should have been made in the prosecution report itself. But since, the prosecution report is silent, it can easily be assumed that after 1964, no notification was issued in terms of Section 30 of the Indian Forest Act and on this ground alone, entire prosecution, in view of the decisions rendered in the cases of Jagdish Mehta Vs. State of Jharkhand and Others, and Janu Khan and others vs. State of Bihar (AIR 1960 Pat 213) is fit to be quashed.

However, learned counsel appearing for the State submits that there has been a specific allegation that these two petitioners were found doing mining work over the land which was a part of the protected forest land and, thereby, the petitioners are rightly being prosecuted.

Having heard learned counsel appearing for the parties and on perusal of the record, I do find that earlier to lodgment of the instant prosecution, when there was interference on the part of the forest department over the mining work which was being done by these petitioners over a piece of land allegedly the part of the forest land, the petitioners did approach to this Court vide C.W.J.C. No. 66 of 1999 (R) whereby this Court vide its order dated 11.02.1999 restrained the respondents from interfering with the mining activities undertaken by the petitioners in connection with the project commonly known as "Muraidih Open Cast Project".

A clear cut stand has been taken that the prosecution, which has been lodged, is with respect to the same "Muraidih Open Cast Project" but it has never been denied. Under this situation, the petitioners cannot be said to have committed any offence.

So far other submission relating to consequence of non-issuance of the notification, after expiry of thirty years is concerned, one needs to take notice of the provision as contained in Section 30B of the Indian Forest Act, which reads as follows:-

Power to issue notification reserving trees, etc. -

The State Government may, by notification in the Official

Gazette, --

(a)..............................................................

(b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such terms, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the right suspended in the portion so closed; or

(c )........................................................................

Here in the instant case, as it appears from the prosecution report that the land is being claimed to be the forest land by virtue of a Notification issued in the year 1964.

No reference is there of any notification issued after expiry of thirty years and as such, it can be easily assumed that after 1964, no notification has been issued in terms of Section 30B of the Indian Forest Act and under the situation, one is constrained to hold that the land over which mining activities were done, can never be assumed to be the protected forest land.

Under this situation, no offence can be said to have been committed by the petitioners even if mining activities were undertaken over the land in question.

Accordingly, the entire criminal proceeding of B.F. Case No. 144 of 2000 including the order dated 03.10.2000 is hereby quashed. In the result, this application is allowed.