Partly allowed

Prasad Paswan v. State of Jharkhand

Jharkhand HC13 Mar 2019Cr.Rev./654/2002

Case brief

AI extract

What is this about?

In a criminal revision, the High Court held that conviction under Section 2 of the Forest (Conservation) Act, 1980 was erroneous as the provision is not penal, leading to the petitioner's acquittal on that charge. However, evidence was deemed sufficient for conviction under Section 33 of the Indian Forest Act, 1927 regarding forest land ploughing, and the sentence was modified to time already serv

What did the court decide?

Petitioner acquitted of charges under Section 2 of the Forest (Conservation) Act, 1980; conviction under Section 33 of the Indian Forest Act, 1927 upheld; sentence modified to time spent in custody.

Prasad Paswan Vs State of Jharkhand — Property and Title | Jharkhand HC (2019)

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Cr. Rev. No.654 of 2002

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Rev. No.654 of 2002

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(Against the judgment dated 13.08.2002 passed by the learned 7^th Additional Sessions Judge, Palamau at Daltonganj in Criminal Appeal No.123 of 1997)

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Prasad Paswan, son of Briksha Paswan, resident of village Sushiganj, Police Station Chhatarpur, District Palamau ..... Petitioner

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Versus

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The State of Jharkhand ….. Opposite Party

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioner : Mr. Abhilash Kumar, Advocate Mr. Anurag Kashyap, Advocate For the State : Addl. P.P.

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By the Court:-

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Heard the parties.

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This revision is directed against the judgment dated 13.08.2002 passed by the learned 7^th Additional Sessions Judge, Palamau at Daltonganj in Criminal Appeal No.123 of 1997 whereby and where under, learned 7^th Additional Sessions Judge, Palamau at Daltonganj has upheld the conviction and sentence of the revision petitioner for the offence punishable under Section 33 of the Indian Forest Act, 1927 and Section 2 of the Forest (Conservation) Act.

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The brief facts of the case is that the forester of Bergain Sub-beat submitted a prosecution report on the basis of the offence report of the forest guard concerned wherein it has been alleged that while the forest guard was patrolling Patsara protected forest on 04.09.1992 at about 3.00 pm, he found inter alia the revision petitioner ploughing the forest land within the protected forest.

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In support of its case, the prosecution examined four witnesses. Out of the four witnesses, P.W.1- Shankar Tiwary and P.W.2- Mudrika Prasad are the forest guards concerned. They have stated that on 04.09.1992 at 3.00 pm while patrolling in Patsara forest area, they saw the revision petitioner and three others ploughing the land within the reserved forest. On being asked, the revision petitioner and the co-accused persons disclosed their names and addresses but they did not allow the P.Ws.1 and 2 to seize the implements used by them for ploughing land. They have also stated that the revision petitioner and co-accused persons ploughed 3½ acres of forest land. P.W.1- Shankar

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Cr. Rev. No.654 of 2002

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Tiwary has also stated that the accused persons of the case have cleared bushes from the forest area and the plot number of the place of occurrence was 76. In his cross-examination, the P.W.1- Shankar Tiwary has stated that though he demanded the documents of ownership of the land ploughed by the revision petitioner and the co-accused persons but they did not show any document of ownership of the said land.

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P.W.3- Muneshwar Singh is a forest guard. He has stated that on receiving the offence report on 04.09.1992 from P.W.2, on 05.09.1992 he inspected the place of occurrence and he found forest land having been ploughed after being encroached upon. He prepared the map and on being proved, the same was marked Ext. 2. He also proved the prosecution report marked Ext. 3 and sanction report marked Ext. 4.

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P.W.4-Banshidhar Dubey is a formal witness. He has proved the notifications under Section 29 and 30 of the Indian Forest Act, 1927 which have been marked Ext. 5, 6 and 7 and the signature of the forest guard has been marked Ext. 7/1.

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Learned court below basing upon the evidence in the record, convicted the revision petitioner and the co-accused persons for the offence punishable under Section 33 of the Indian Forest Act and Section 2 of the Forest (Conservation) Act, 1980 and sentenced the revision petitioner to undergo simple imprisonment for six months for the offence punishable under Section 33 of the Indian Forest Act, 1927 but it did not pass any separate sentence for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980.

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The learned first appellate court made an independent appreciation of the evidence in the record and taking into consideration the oral and documentary evidence in the record, concurred with the trial court and dismissed the appeal and upheld the conviction and sentence of the revision petitioner and the coaccused persons.

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Learned counsel for the revision petitioner submits that both the courts below erred by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as the same is not penal provision. It is submitted that the learned appellate court could not properly appreciate the evidence in the record. It is further submitted by the learned counsel for the revision petitioner that petitioner is an old man of 74 years and he is facing the rigors of criminal prosecution since 1993. It is submitted that the petitioner was in custody from 12.11.2002 and bail was granted to him on

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Cr. Rev. No.654 of 2002

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10.12.2002 by this court and after some days, the revision petitioner furnished the bail bond and was released on bail. Hence, it is submitted that in case of his conviction is upheld, a lenient view may be taken in the matter of sentence.

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Learned Addl. P.P. on the other hand defended the impugned judgment passed by the appellate court and submitted that the appellate court has rightly upheld the conviction of the revision petitioner. Hence, it is submitted that this revision, being without any merit be dismissed.

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Having heard the submission made at the Bar and after going through the record, it is pertinent to mention here that Section 2 of the Forest (Conservation) Act, 1980 reads as under:-

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2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose. – Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,-

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(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

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(ii) that any forest-land or any portion thereof may be used for any non-forest purpose;

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[(iii) that any forest-land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

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(iv) that any forest-land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using in for reafforestation.]

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It is crystal clear from the recital of Section 2 of the Forest (Conservation) Act, 1980 that the same is not penal provision of law. Hence, certainly both the learned courts below erred by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980. Hence, the conviction of the revision petitioner so far as Section 2 of the Forest (Conservation) Act, 1980 is concerned, being not sustainable in law, is set aside and the revision petitioner is acquitted of the charge for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980.

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So far as the conviction of the revision petitioner for the offence punishable under Section 33 of the Indian Forest Act, 1927 is concerned, after going through the evidence in the record, it is found that both the P.W.1Shankar Tiwary and P.W.2- Mudrika Prasad are the eye-witness of the occurrence. Nothing has been elicited in their cross-examination to discredit or disbelieve their testimonies. They have categorically stated about the revision petitioner ploughing the forest land and clearing the bushes from the forest area in violation of Section 33 of the Indian Forest Act, 1927. Hence, this Court is of

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Cr. Rev. No.654 of 2002

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the considered view that the evidence in the record is sufficient to establish the charge for the offence punishable under Section 33 (1) (c) of the Indian Forest Act, 1927. Accordingly, interference in exercise of the revisional jurisdiction in respect of conviction of the revision petitioner so far as Section 33 of the Indian Forest Act, 1927 is unwarranted. So far as the sentence is concerned, keeping in view the fact that there is no specific evidence in the record about the dimension of the area which was cleared for cultivation by the petitioner as well as the fact that he has undergone the rigors of the criminal prosecution for a considerable period of time, this Court is of the considered view that the sentence of the petitioner be modified to the period that he has already undergone in the custody.

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Accordingly, this criminal revision is dismissed with the modifications in the sentence as mentioned above.

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Let the Lower Court Records be sent back to the court concerned along with a copy of this Judgment forthwith.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 13^th of March, 2019 AFR/ Animesh/-

Prasad Paswan v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Prasad Paswan v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

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