Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1179 of 2012 ----------- Madhu Agarwal @ Madhusudan Agarwal, Son of Hanuman Agarwal, Resident of Bandwan, P.O. and P.S. Bandwan, District-Purulia, West Bengal. …..Petitioner Versus 1. The State of Jharkhand.
2. Shankar Chandra, Forester, Ghatshila, P.O. and P.S. Ghatsila, District-East Singhbhum. ….Opposite Parties ----- Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY ----- For the Petitioner : S.L. Agarwal, Advocate For the State : APP ----- 8/23-02-2015 Heard learned counsel for the petitioner and learned counsel for the State. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with C3 Case No. 29 of 2008, including the order dated 7.8.2008, passed by learned Additional Chief Judicial Magistrate, Ghatshila, whereby and whereunder cognizance has been taken for the offence punishable under sections 26, 41 and 42 of the Indian Forest Act. The prosecution was initiated by the forest department, in which it was stated that on 22.05.2008, forest guard Subhash Chandra Dhal along with another forest guard Praveen Kumar Mandal had gone to Vasadera for inspection. It has been alleged that the villagers disclosed that the accused had got constructed a path 20 chain in length by removing the bushes with the help of villagers and that he is collecting manganese stone from an old mine. It is stated that thereafter the accused had tried to take help from the villagers but no help could be given since the area is very sensitive. It was further alleged that during the course of inquiry, the accused was summoned but he did not make himself present. It has also been stated that the accused had been planning to mine in the said area in a large scale and about 10 tones of stone were found dumped and the loss, which was suffered by the department, was estimated to the tune of Rs.3,45,000/-. After the offence report was submitted, cognizance was taken by learned Additional Chief Judicial Magistrate, Ghatshila vide order dated 7.8.2008 for the offence punishable under sections 26, 41 and 42 of the Indian Forest Act. It has been submitted by the learned counsel for the petitioner -2- that none of the provisions, under which cognizance has been taken, is applicable in the facts and circumstances of the case. It was further submitted that section 41 of the Indian Forest Act (the Act for short) deals with the rule making power of the State Government to regulate transit of forest produce and it is not a penal offence. It has also been submitted that no where it has been stated by the complainant as to which rule under section 41(2) of the Act has been contravened by the petitioner, which is punishable under section 42 of the Act. While referring to Section 26 of the Act, it has been submitted that quarrying of stones by the petitioner has not been seen by any other person and the entire allegation is based on hearsay witness. In this context, learned counsel for the petitioner has referred to a case of Prasanna Kumar Mahapatra @ P.L. Mahapatra @ P.K. Patra Vs. State of Jharkhand & Ors., reported in 2010 (2) JCR113( Jhr) and in the case of Jagdish Mehta Vs. State of Jharkhand & Ors, reported in 2003 (2) JCR525( Jhr). Learned counsel for the State on the other hand has submitted that the villagers have specifically stated that it was the petitioner, who had constructed the road in the jungle and that he was making plans for mining manganese and the acts/actions of the petitioner resultantly had caused a huge loss to the department. After hearing learned counsel for the petitioner and learned counsel for the State and on going through the records, I find that the prosecution report has been submitted on the basis of disclosures made by the villagers with respect to the fact that it was the petitioner, who had constructed the road and that about 8 tones of costly stones were found located in a single place. It has been strenuously argued by the learned counsel for the petitioner that a notification under section 30 (b) of the Act was issued only for 30 years, which was in the year 1937 and as such after expiry of 30 years, there has been no notification thereafter. The said argument of learned counsel for the petitioner is fit to be rejected on the ground that a bare perusal of the notification dated 26th July, 1937 reveals that the same was issued under the provisions of Section 20 of the Act and the schedule mentioned in the said notification was declared to be reserve forest with effect from 6th September, 1937 and was known as Dhalbhum Reserve Forest. It , therefore, appears that the -3- mining activities, which were said to be carried out by the petitioner as alleged in the prosecution report were in a reserve forest and not in a protected forest as has been argued by the learned counsel for the petitioner. In the case of Jagdish Mehta (supra), the subject matter of the said case was a protected forest, in which notification was issued declaring the area as a protected area in the year 1953, which was not renewed. The notification of the aforesaid judgement and the notification of the present case seem to be under different provisions of the Act and as such the said judgment is not applicable in the facts and circumstances of the present case. In the case of Prasanna Kumar Mahapatra @ P.L. Mahapatra @ P.K. Patra ( supra), the initiation of the criminal proceeding under the Forest Act was quashed on the ground that no seizure of incriminating articles were effected and in absence of such vital piece of evidence, the prosecution would not be able to prove the charges. Reference was also made to the case of R.P. Kapur Vs. State of Punjab, reported in AIR1960SC866 In the case of Rajiv Thapar and another Vs. Madan Lal Kapoor, reported in (2013) 3 SCC330 while considering the powers of the High Court, it was held as follows:-
"8. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. In the case at hand, it was specifically found in course of inspection that the petitioner had constructed a road and had also extracted 10 tones of stones, which were kept at one place. Thus, the offence report itself discloses that the petitioner was involved in -4- committing a forest offence and so far as the provisions, under which cognizance has been taken, the veracity or otherwise of the same have to be determined by the learned trial court at the appropriate stage. Section 26 of the Act clearly prohibits certain acts in such forest as the same comes within the parameters of Sub Section 1(g) of Section 26 of the Act. It, thus, projects that so far as Section 26 of the Act is concerned, an offence is clearly made out against the petitioner. Since there is apparently a prima face case made out against the petitioner for violation of the provisions of Forest Act, at this stage under Section 482 Cr.P.C., the Court will be reluctant to interfere in the criminal proceedings. In such circumstances and in absence of any illegality having been pointed out by learned counsel for the petitioner so as to cause interference by this Court , the present application is hereby dismissed. (Rongon Mukhopadhyay,J) Rakesh/