Judgment:
Narendra Nath Tiwari, J.
1. In I.A. No. 1040 of 2009, the petitioners have prayed for sending the lower court record back to the court below, as the documents available on record are required to be produced in a civil suit, being T.S. No. 10 of 1997, pending in the court of Sub-Judge-I, Chatra.
2. It has been submitted that by order dated 14th March, 2002, this Cr.M.P. was admitted and lower court record was called for. Further proceeding of the court below was also stayed. However, this case could not be finally heard by this Court.
3. It has been submitted that the petitioners have filed the said title suit for declaration of their right and title including other reliefs, as the Opposite Party-Forest Department time and again disputes the petitioners' right, title and peaceful possession over the land and institutes frivolous criminal cases. On the same set of allegation regarding the said land, the Forest Department had earlier brought a complaint case, being U.C. Case No. 412 of 1992, in the court of Judicial Magistrate, 1st Class, Chatra in which the petitioners-Loki Mahto and Charan Mahto were also made accused of the offence under Section 33 of the Indian Forest Act. In the said case after full-fledged trial, the petitioners were acquitted of the charges. It has been submitted that though the petitioners have their bona fide claim of title and possession over the land, the Forest Department, taking undue advantage of its power unnecessarily, has dragged the petitioners in a criminal case and the learned court below without taking into consideration all the legal and factual aspects has taken cognizance of the offence under Section 33 of the Indian Forest Act against the petitioners over again.
4. Subsequently, in U.C. Case No. 48 of 1996 instituted by the Forest Department over the said land, rule was made absolute against the Forest Department and discharged in favour of the petitioners. In order to avoid the said situation, the petitioners have filed a title suit in the court of Subordinate Judge for declaration of their right and title, in which the documents, which are available on this record, are required to be filed. Learned Counsel submitted that the case itself can be finally heard and disposed of.
5. Learned A.P.P. appearing on behalf of the opposite parties has no objection.
6. With the consent of the parties and in the circumstance, this petition has been taken up for final hearing and disposal.
7. In this petition, the petitioners have prayed for quashing the entire criminal proceeding' including the order dated 8th November, 2000 passed in U.C. Case No. 258 of 2000 (T.R. No. 1031 of 2000) by learned Sub Divisional Judicial Magistrate, Chatra, whereby learned court below has taken cognizance of the offence under Section 33 of the Indian Forest Act against the petitioners.
8. The complaint was made by the Forest Guard before the Range Officer, alleging that the petitioners were cutting soil over a portion of Khata No. 75, Plot No. 1189 of village Vakchumba, P.S. Chatra, District Chatra, which according to them is forest land. On that basis the complaint was lodged against the petitioner under Section 33 of the Indian Forest Act. Learned Sub-Division Magistrate, Chatra took cognizance of the offence under Section 33 of the Indian Forest Act against the petitioners and proceeded with the case.
9. The petitioners have challenged the order taking cognizance including the entire criminal proceeding on the ground that they are lawful owner of the land, in question, and they have got valid right, title and interest. They have been in physical possession over the land for decades and their names have been mutated in the office of State and they have been making payment of rent of the land to the State and getting receipt thereof. According to them, the Forest Department has absolutely got no concern over the land, in question. The interested officials of the Forest Department, however, go on implicating the petitioners in frivolous cases. A proceeding under Section 144 Cr.P.C. was disposed of in their favour by order dated 25th April, 1996 (Annexure-3). Earlier, they were implicated in a criminal case, being U.C. Case No. 412 of 1992, in which the charge was framed under Section 33 of the Indian Forest Act, but the same was found false and they were acquitted of the charge in view of their genuine documents pertaining to lawful right of ownership and possession of the land.
10. It has been submitted that the land, in question, has, been released from the Forest Department, but the interested officials of the department now denied their said documents. The Forest Department also implicated the petitioners and their family members in following cases:
(i) U.C. Case No. 408 of 1998.
(ii) U.C. Case No. 258 of 2000
(iii) P.C. No. 96 of 1997
(iv) P.C. No. 97 of 1998.
11. It has been submitted that the petitioners once acquitted of the charge under Section 33 of the Indian Forest Act cannot be subjected to the same charge and cannot be repeatedly vexed by instituting malicious prosecution in respect of the same land. In the instant case, the petitioners have been sought to be prosecuted for the charge under Section 33 of the Indian Forest Act on the same ground, which did not find favour in several cases. The prosecution against the petitioners is, thus, frivolous, malicious and vexatious and the same is an abuse of the process of the Court and is liable to be quashed.
12. Learned A.P.P., supported the order of the learned court below and submitted that though it is true that the earlier cases had gone in favour of some of the petitioners or their family members and they have been acquitted of the charge under Section 33 of the Indian Forest Act, yet the same cannot be a ground for quashing the impugned criminal proceeding and the order taking cognizance. The impugned order taking cognizance has been passed on the basis of a fresh set of allegation and material and it cannot be said to be malicious or vexatious proceeding. Though the petitioners have filed a suit for declaration of their right and title, the same also cannot be said to be a ground for quashing the criminal proceeding, in question.
13. Having heard learned Counsel for the parties, I considered the facts and materials on record. From Annexures-3 and 4, it is evident that the disputes in the past arising out of the said land were decided in favour of the raiyats of the land including two petitioners of this case. They were prosecuted for the charge under Section 33 of the Indian Forest Act long back in the year 1992 in U.C. Case No. 412 of 1992, but after full-fledged trial, they were acquitted. On perusal of the written report, it is clear that the petitioners have been sought to be prosecuted for cutting soil over the land, in question, which has been claimed to be the raiyati land of the petitioners. The petitioners have brought on record rent receipts issued by the State Government (Annexure-5), which goes to show that the demand in respect of portion of land of Khata No. 75 has been running in the names of the petitioners.
14. On perusal of Annexure-5 and the judgment passed in U.C. Case No. 412 of 1992/T.R. No. 490 of 1995, it is evident that learned Magistrate, who tried the said case, found several documents in favour of the petitioners and held them not guilty of the offence under Section 33 of the Indian Forest Act.
15. I find substance in the submissions of learned Counsel for the petitioners that on the basis of the said claim in respect of the said land, the prosecution against the petitioners for the charge under Section 33 of the Indian Forest Act is an abuse of the process of the Court. In view of the earlier judgment/order passed in favour of the petitioners, it was a fit case which should have been fought in a competent court of civil jurisdiction. The Forest Department, however, has not opted for the same. According to the petitioners, they have filed Title Suit No. 10 of 1997, which is pending in the court of Subordinate Judge, Chatra in which they have prayed for declaration of right and title including other reliefs in respect of the said land against the Forest Department. The opposite party-Forest Department has appeared in the case and filed written statement and the department has been contesting the said suit in the court of Subordinate Judge. The said fact situation has not been disputed by learned A.P.P.
16. In view of the above, this Court does not find any justification for criminally prosecuting the petitioners for tilling the land in question in assertion of their right title, supported by documents.
17. The claim of right and title over the land, in question, has to be decided by a competent Civil Court and the matter is subjudiced before the Subordinate Judge, Chatra. The parties can take their respective stands and establish their claim in the said Court. The criminal proceeding based on such claim is malicious and an abuse of the process of the Court.
18. For the reasons aforesaid, this petition is allowed. The impugned order taking cognizance dated 8th November, 2000 as also the criminal proceeding in connection with U.C. Case No. 258 of 2000, pending in the court of Sub Divisional Judicial Magistrate, Chatra are quashed.
19. Let the lower court record be transmitted to the court below forthwith, which is required to be produced before learned Subordinate Judge, Chatra in connection with Title Suit No. 10 of 1997, through special messenger, if the cost is deposited by the petitioners.
20. In view of the above, I.A. No. 1040 of 2009 also stands disposed of.