State of H.P. vs Hand Raj

Bhawani Singh, J.—This appeal, by the State, arises out of the acquittal of the accused for offences under Sections 32/33 of the Indian Forest Act by Judicial Magistrate 1st Class, Sarkaghat, in Forest Complaint No. 1-II1/84 decided on 18-2-1986.

The case against the accused is that Forest of Jalari is Demarcated Protected Forest and the accused took illegal possession of two hectares of land therein by destroying seedlings and it constructed house and cow-shed and, thus, committed an offence under Sections 32 and 33 of the Indian Forest Act. On 25-12-1982 the accused was found constructing cow-shed over this land and it was also detected that he had destroyed the plants there, thus, causing huge loss to the State.

Accordingly, Damage Report was prepared on the spot and the accused was asked not to continue with the work but he persisted in doing so with the result that the present complaint for his prosecution had to be initiated.

The accused, during his examination u/s 313 of the Code of Criminal Procedure, states that he is in possession of the land since 1962 and constructed the cow-shed and the house on the land since it was allotted to him by the Government in lieu of his land that was destroyed due to floods. He has also stated that the Forest has not been notified as Demarcated Protected Forest in the area concerned. He has also produced certain witnesses in his defense.

After permitting the parties to adduce evidence, the trial court came to the conclusion that the accused was in possession of the land in question but he could not be convicted for want of proof of the publication of notification u/s 31 of the Indian Forest Act. The result was that the accused was acquitted of the charge by the Trying Magistrate.

The state felt aggrieved by this decision, hence this appeal against this acquittal of the accused.

Shri Inder Singh and Shri Rajiv Sharma, Advocates, who appeared for the accused made submissions in defense of the judgment and submitted that the accused cannot be convicted in view of the findings of the Trying Magistrate as to the publication of the notification in accordance with Section 31 of Indian Forest Act. On the other hand, Shri Ram Murti Bisht, Law Officer for the State, assailed the decision and urged for the conviction of the accused.

So for as the evidence part of the case, is concerned, it is clearly established by the witnesses, like, Hari Singh (PW- 3), Bhag Singh (PW-2) and Hari Singh, Forest Guard (PW-3) that Jalari is a Demarcated Protected Forest and the accused was not only found in possession of some part of it but also was seen constructing the cowshed when the place was visited. The Damage Report as well as the confessional statement have been proved. The defence of the accused that he occupied it at the instance of the Deputy Commissioner, Mandi, is clearly baseless since this assertion has not been proved by the accused by any documentary evidence. Land, out of the Demarcated Protected Forest, cannot be allotted to any one and, in case, it was done in the case of the Petitioner, as he asserts, the official record allotting this land could be made available by the accused. Moreover, the accused could also have taken steps to get ownership rights recorded in the relevant revenue records. In this view of the matter, the defence of the accused is clearly base-less and the'' allegations against him stand proved. To this extent, the conclusion of the trial court is correct.

The only thing left in the case is whether the view of the trial Magistrate in recording the acquittal of the accused on the ground of non-publication of the notification u/s 31 is correct or calls for interference. The accused, as a matter of fact, knows that Jalari Forest belongs to the Government. His case is that the Deputy Commissioner permitted him to occupy any piece there found suitable by him. Since this defence has been rejected for the reasons, aforesaid, the later part of the defence requires to be examined. The State has filed the copy of Gazette Notification dated 20th of September, 1980. Entry at Sr. No. 11 of this notification makes mention of the present forest. The purpose of issuance of the notification u/s 31 of the Indian Forest appears to be that the people come to know about the Forest being declared as Demarcated Protected Forest so that they do not do such acts which are prohibited under the provisions of the Indian Forest Act. This provision is not, as a matter of fact, mandatory in nature in view of the aforesaid reasons. Moreover, everyone living in the vicinity, as a matter of fact, knows about the Govt. Forests and the boundaries thereof.

Further, when the State Government initiates the process of declaring the Forests as reserved, there are various provisions which have to be applied before a notification u/s 31 of the Forest Act is issued. When all other steps, including declaring the Forest as Demarcated Protected Forest by the notification of 20th September, 1980, have been taken, there can be no dispute that notification u/s 31 was not issued. Presumption that all official acts are presumed to be done regularly as envisaged u/s 114(e) of the Evidence Act becomes very clear in such circumstances. There can be one more reason to say that Section 31 is not mandatory in nature when we take a practical example of its application, say, a Forest was declared Protected Forest in the year 1952 and all the notifications including the one u/s 31 of the Forest Act is issued in the same year. Is it possible that persons born after 1952 would come to know about its publication in the conspicuous place as required under this Provision? It may come to the knowledge of all those who may have seen it before it got destroyed or defaced in about a week�s time but not others who may not have seen it even during the time of its publication. Therefore, it is assumed that the State Government which initiated the process of declaring the Forests as Demarcated Protected Forests under various provisions of the Forest Act, may also have issued this notification since it cannot be assumed that the State Government could issue the earlier notifications and not the later u/s 31 of the Act nor there can be any reason to say that it was not so issued.

Similar question arose in State of Himachal Pradesh v. Tangin Durja, 1989 (1) Shim LC 255 : (ILR 1989 HP 52) confirmed by Supreme Court of India in SLP (Oil. No. 832 of 1989) decided on 13th of January, 1989 which was followed in Criminal Appeal No. 64 of 1987 State v. Kamal Chand decided on August 21, 1990.

In the present case, the Petitioner knew that it was a Government Forest. In view of the aforesaid examination of the matter, offences under Sections 32/33 of the Indian Forest Act stand established against the accused and his acquittal by the Trial Magistrate is not at all justified. Accordingly, he is convicted of these offences.

Now the question arises what punishment should be awarded to the accused. A perusal of the record of this case discloses that the offence was committed on 25-12-1982. The accused had been facing litigation before the trial court before the matter came in this Court. Period of about eight years has passed. In view of this long lapse of time, interest of justice would be met in case the accused is sentenced to pay a fine instead of imprisonment. Accordingly, the accused is directed to pay a fine of Rs. 500/- and in default of payment of fine to undergo simple imprisonment for three months.