Mr. Gaurav, Advocate Ms v. Bharti, APP
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2960 of 2022 1.Om Prakash Agrawal 2.Kuldeep Bara Versus 1.The State of Jharkhand. 2.Deepak Singh ........... .... .. ... Petitioner(s) .. ... ... Opp. Party(s) CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner(s) : For the State :
Legal Reasoning
12. After having considered rival submissions, the petitioner’s claims to title and possession is on the basis of a sada hukumnama or unregistered deed of settlement made on 5.01.1952 by the ex-land lord and the Forest Department claims it to be a protected forest area on the basis of a Govt. notification dated 15.09.1955. 13. The plea for quashing of the instant petition is premised on the fact that earlier the criminal case lodged against the father of the petitioner under Section 33 of the Indian Forest Act resulted in final acquittal and therefore, the instant prosecution was hit by Section 300 of the Cr.P.C. It is also contended that in Demarcation Case No.1/R-8 of 1960-61, the Plot No.706, area 19.10 Acres and Plot 715, Area 2.37 acres, the total area of 21.47 acres of Village- Farsabera under Khata No.48 had been demarcated by the Sarkari Amin in favour of petitioner’s father, namely, Jhaman Seth and grand-father, namely, Ram Kumar Marwari of petitioner no.1. In a proceeding under Section 145 of the Cr.P.C possession of the predecessor in interest had been declared in Case No.82 of 1960, T.R. No.321 of 1961 with respect to Plot No.706, Area 19.10 acres, Khata No.48, Village- Farsabera, which has been decided by learned Magistrate 1st Class, Simdega vide order dated 30.11.1962. 14. At the outset it must be stated that Section 300 of the Cr.P.C will have no application in the present case as parties are different in both the cases. The essentials of issue estoppel are : i. The parties in the two proceedings must be the same; ii. The issue that was decided earlier must be identical with that which is sought to be re-agitated. 4 15. The claim of title over the land in question for the reason that earlier criminal case was decided in favour of the grandfather of the petitioner is unsustainable, since titles are not decided in a criminal case or for that matter in a proceeding before an executive magistrate in a proceeding under Section 145 of the Cr.P.C. Petitioner will be entitled to lead defence on his possession during the criminal trial, but the plea of possession cannot be a ground for quashing the instant petition. 16. The very claim of title of the petitioner over the land in question lacks conviction, as it is made against a claim of the Forest Department over Govt. land which has been declared as a protected forest area. Under Section 29 of the Indian Forest Act, it is a Govt. land which can be declared as protected and heavy onus lies on the party who claims it to be private raiyati land. Here the claim of title is grounded on a sada hukumnama executed by the ex-landlord on 5.1.1952 after the enactment of the Bihar Land Reforms Act 1950. Section 4(h) of the BLR Act provides that collector shall have power to make inquiries in respect of any transfer including the settlement or lease made after 1.1.1946. Further, elaborate procedure has been laid down under Bihar land Reform Rules, 1951 on mode of filing of return by the ex-land lord and of determination of fair rent. In Mahadeo Oraon Vrs. State of Bihar 2009 (3) JCR 340, the High Court of Jharkhand has held that unregistered hukumnama is not admissible and cannot be considered as deed of title. 17. Without expressing any opinion over the merit of the case, this Court is of the view that petitioner will be entitled to plead his defence at the time of trial but this cannot per se be a ground for quashing the entire criminal proceeding. I do not find any infirmity in the impugned order. Accordingly, the instant Criminal Miscellaneous Petition is dismissed.
Arguments
Mr. Gaurav, Advocate Ms. V. Bharti, APP …... C.A.V. ON 17.02.2023 PRONOUNCED ON 28 .02.2023 1. The instant Cr. M. P. has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 11.08.2021 passed in Complaint Case No.42 of 2021 whereby and whereunder, cognizance of the offence has been taken under Section 33 of Indian Forest Act. 2. On 04.02.2021 it was detected by the forest patrolling party that Farsabera Protected Forest area, plot no.706 of forest land had been illegally ploughed and bounded. The informant came to know from local villagers that the said work was done by Kuleep Bara (petitioner no.2) under the instruction of Om Prakash Agarwal (petitioner no.1). The petitioner claimed the land to be settled in favour of his grandfather Ram Kumar Agarwal and that he was in cultivating possession of the same since long. Forest department claims the said land to be protected forest declared vide notification no.C.F 17050 /55-2863— R- 15.9.50. The encroachment over the 3 acre land had caused a loss revenue to the tune of Rs. 6,00,000/- On the basis of the prosecution report the cognizance has been taken, aggrieved by the order, instant petition for quashing has been filed. 3. It is submitted by the learned Counsel on behalf of the petitioner that petitioner no.1 has absolute title and possession over Plot No.706, Khata No.48, Village- Farsabera and he was the rightful owner and in possession over the alleged land, they were rightly cultivating the crops over the land, in question. 4. It is further submitted that the present case has been filed by the Forest Department against the petitioners which is gross abuse of law and is hit by Section 300 Cr.P.C. because father of the petitioner No.1 had already been tried by competent court for the same nature of offence. 5. It is submitted that grandfather of petitioner no.1, namely, Ramkumar Seth @ Ram Kumar Marwari had taken settlement of Plot No.706, having total area of 19.10 acres of land of Farsabera from the then landlord Zamindar Lal 2 Sri Narayan Singh Deo, by Sada Hukumnama dated 05.01.1952 and was paying rent to ex-landlord and even after abolition of Zamindari, the State of Bihar has recognized the said Ramkumar Seth as actual holder/tenant of land and issued rent receipt to him. 6. It is further submitted that earlier District Forest Officer had instituted a complaint case against the father of the petitioner No.1, namely, Jhaman Seth, under Section 33 of Indian Forest Act on the same set of allegation regarding the same Plot No.706 alleging therein that Jhaman Seth had cleared a part of forest from the Plot No.706 and grown crops over the protected forest land which was notified in Bihar Gazette Notification No.C/F-17050/55-2863-R dated 15.09.1955, Jhaman Seth has been tried by competent court for the same set of offence in connection with Case No.C(ii) 25/1960 and T.R. No.60 of 1961 and acquitted by learned J.M. 1st Class, Simdega vide judgment dated 30.11.1961. 7. Against the judgment dated 30.11.1961, State Government (Forest Department) filed Government Appeal No.02 of 1961 before the Hon’ble High Court of Judicature, Patna whereby and whereunder the same had been dismissed vide order dated 13.02.1963 and observed that father of the petitioner was in possession of the land, in question bearing Plot No.706 and further it has been observed that “there can be no successful prosecution of the State (Forest Department) under Section 33(i)(c) of Indian Forest Act unless question of title is decided by the competent Civil Court.” 8. Earlier on the basis of petition filed by Range Officer, Simdega East Range, a proceeding under Section 145 Cr.P.C. was instituted between Jhaman Seth (father of the petitioner no.1) and Forest Department vide Case No.82 of 1960, T.R. No.321 of 1961 with respect to actual possession of Plot No.706, Area 19.10 acres, Khata No.48, Village- Farsabera, which has been decided by learned Magistrate 1st Class, Simdega vide order dated 30.11.1962 declaring in favour of the father of the petitioner no.1, namely, Jhaman Set who is in actual possession of the land, in question. 9. The Circle Inspector (C.I.), Simdega submitted enquiry report to Sub Divisional Officer (SDO), Simdega on 24.09.1959 through Circle Officer, Simdega vide office letter No.76 dated 14.07.1959, Plot no.706 of Village Farsabera mentioning therein that Ram Kumar Marwari had taken settlement of the land from Zamindar, Lal Narayan Singh Deo, the ex-landlord of the village in the year 1952 and since then he is in the cultivating possession of the land. 3 10. In the light of the order passed by Sub Divisional Officer, Simdega in Demarcation Case No.1/R-8 of 1960-61, the Plot No.706, area 19.10 Acres and Plot 715, Area 2.37 acres, the total area of 21.47 acres of Village- Farsabera under Khata No.48 has been demarcated by the Sarkari Amin in favour of father, namely, Jhaman Seth and grand-father, namely, Ram Kumar Marwari of petitioner no.1. 11. The State has filed counter-affidavit and contested the claim of the petitioner by claiming the land to be protected forest area by virtue of Govt. notification no.C/F-17050/55-2868 R dated 15.09.1955. With regard to the Judgment delivered in favour of the father of the petitioner, it is argued that Section 300 of the Cr.P.C will not apply as the present case has been filed on a fresh cause of action.
Decision
Pending I.A., if any, stands disposed of. Jharkhand High Court, Ranchi Dated the 28th February, /2023 AFR /Sandeep (Gautam Kumar Choudhary, J.)