Wildlife First Ors v. Union of India Ors)

Applicant :- Shri Balkeshwar Singh And 2 Ors Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Abhishek Kumar Chaubey,Rajendra Chaubey Counsel for Opposite Party :- G.A. Hon'ble Deepak Verma,J.

1. Heard learned counsel for the applicants and learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the quash the charge sheet dated 19.10.2019 in Case Crime No. 0154 of 2019, under Sections 5 and 26 of Indian Forest Act, 1927 and 3 (2) Prevention of Damage to Public Property Act, 1984, Police Station- Anpara, District- Sonbhadra. Further, prayer has been made to stay the proceeding arising out of charge sheet dated 19.10.2019 in Case Crime No. 0154 of 2019, under Sections 5 and 26 of Indian Forest Act, 1927 and 3 (2) Prevention of Damage to Public Property Act, 1984, Police Station- Anpara, District- Sonbhadra.

3. It is alleged in the FIR that applicants are have encroached the part of Arazi Nos. 1284kha and 1284gha measuring about 5 hectare of the forest land and illegally constructed house and temple over it. Further, applicants have fenced the property by using wire. Learned counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case. Applicants comes under the definition of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and as per the provisions provided under Section 6 of the said Act, Scheduled Tribes and Other Traditional Forest Dwellers, cannot be evicted. He further submits that applicants are residing at the disputed area since last more than 100 years. Civil litigation is pending between applicants and forest department. He next submits that since applicants are other traditional forest dwellers, therefore, they have right to live in the forest area. Further, charge- sheet submitted by the Investigating Officer is illegal and not supported by any evidence. In support of his submissions learned counsel for the applicants has placed reliance over the judgment dated 28.02.2019 passed by Hon'ble Apex Court in Writ Petition(s) (Civil) No(s). 109 of 2008 (Wildlife First & Ors Vs. Union of India & Ors); wherein the Hon'ble Apex Court has ordered as under:- "...........................Let details be furnished in their affidavits to be filed by the Chief Secretaries. However, till we examine all aforesaid aspects, we keep our order dated 13.02.2019 on hold so far as eviction is concerned..................."

4. Per contra, learned A.G.A. vehemently opposed the submissions raised by applicants' counsel and submits that submissions raised by learned counsel for the applicants are disputed questions of fact, which cannot be considered and examined at this stage by this Court in exercise of power under Section 482 Cr.P.C. He next submits that though civil proceeding is pending but applicants have not filed any evidence to show that applicants falls under the category of Other Traditional Forest Dwellers. Moreover, on perusal of evidence collected during investigation by the Investigating Officer, prima facie, offence is made out against the applicants. Forest department has initiated Izra proceeding against the illegal encroachers and applicants have been declared Bhu-Maphiya. Further, present FIR has been lodged against the applicants when they did not consider the repeated request to evict the land of the forest. From the record, it is also apparent that applicants do not come under the definition of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Cognizance and proceeding initiated against the applicants are just and proper and applicants are not co-operating with the trial proceedings, therefore, N.B.W. has been issued against them.

5. Considered the submissions raised by learned counsel for the parties and perused the entire record. From the record, it is apparent that applicants have not filed any evidence to show that applicants comes under the definition of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Applicants have illegally encroached the forest land and despite repeated request, applicants have not evicted the forest land. Applicants are not co-operating with the trial, as such, N.B.W. has been issued against the applicants. The grounds taken in the application reveal that many of them relate to disputed question of fact. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the impugned criminal proceeding against the applicants is abuse of the process of the Court and is liable to be quashed by this Court. The power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.

6. In view of the above, in the light of judgment of the Apex Court in the matters of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, Manik B. Vs. Kadapala Sreyes Reddy & Anr. 2023 LiveLaw (SC) 642, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, no ground for quashing the proceedings of the aforesaid case, is made out which may call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C. as the same do not suffer from any illegality or infirmity.

7. The present application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed. Order Date :- 26.5.2025 Aditya ADITYA KUSHWAHA High Court of Judicature at Allahabad

Applicant :- Shri Balkeshwar Singh And 2 Ors Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Abhishek Kumar Chaubey,Rajendra Chaubey Counsel for Opposite Party :- G.A. Hon'ble Deepak Verma,J.

1. Heard learned counsel for the applicants and learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the quash the charge sheet dated 19.10.2019 in Case Crime No. 0154 of 2019, under Sections 5 and 26 of Indian Forest Act, 1927 and 3 (2) Prevention of Damage to Public Property Act, 1984, Police Station- Anpara, District- Sonbhadra. Further, prayer has been made to stay the proceeding arising out of charge sheet dated 19.10.2019 in Case Crime No. 0154 of 2019, under Sections 5 and 26 of Indian Forest Act, 1927 and 3 (2) Prevention of Damage to Public Property Act, 1984, Police Station- Anpara, District- Sonbhadra.

3. It is alleged in the FIR that applicants are have encroached the part of Arazi Nos. 1284kha and 1284gha measuring about 5 hectare of the forest land and illegally constructed house and temple over it. Further, applicants have fenced the property by using wire. Learned counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case. Applicants comes under the definition of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and as per the provisions provided under Section 6 of the said Act, Scheduled Tribes and Other Traditional Forest Dwellers, cannot be evicted. He further submits that applicants are residing at the disputed area since last more than 100 years. Civil litigation is pending between applicants and forest department. He next submits that since applicants are other traditional forest dwellers, therefore, they have right to live in the forest area. Further, charge- sheet submitted by the Investigating Officer is illegal and not supported by any evidence. In support of his submissions learned counsel for the applicants has placed reliance over the judgment dated 28.02.2019 passed by Hon'ble Apex Court in Writ Petition(s) (Civil) No(s). 109 of 2008 (Wildlife First & Ors Vs. Union of India & Ors); wherein the Hon'ble Apex Court has ordered as under:- "...........................Let details be furnished in their affidavits to be filed by the Chief Secretaries. However, till we examine all aforesaid aspects, we keep our order dated 13.02.2019 on hold so far as eviction is concerned..................."

4. Per contra, learned A.G.A. vehemently opposed the submissions raised by applicants' counsel and submits that submissions raised by learned counsel for the applicants are disputed questions of fact, which cannot be considered and examined at this stage by this Court in exercise of power under Section 482 Cr.P.C. He next submits that though civil proceeding is pending but applicants have not filed any evidence to show that applicants falls under the category of Other Traditional Forest Dwellers. Moreover, on perusal of evidence collected during investigation by the Investigating Officer, prima facie, offence is made out against the applicants. Forest department has initiated Izra proceeding against the illegal encroachers and applicants have been declared Bhu-Maphiya. Further, present FIR has been lodged against the applicants when they did not consider the repeated request to evict the land of the forest. From the record, it is also apparent that applicants do not come under the definition of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Cognizance and proceeding initiated against the applicants are just and proper and applicants are not co-operating with the trial proceedings, therefore, N.B.W. has been issued against them.

5. Considered the submissions raised by learned counsel for the parties and perused the entire record. From the record, it is apparent that applicants have not filed any evidence to show that applicants comes under the definition of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Applicants have illegally encroached the forest land and despite repeated request, applicants have not evicted the forest land. Applicants are not co-operating with the trial, as such, N.B.W. has been issued against the applicants. The grounds taken in the application reveal that many of them relate to disputed question of fact. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the impugned criminal proceeding against the applicants is abuse of the process of the Court and is liable to be quashed by this Court. The power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.

6. In view of the above, in the light of judgment of the Apex Court in the matters of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, Manik B. Vs. Kadapala Sreyes Reddy & Anr. 2023 LiveLaw (SC) 642, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, no ground for quashing the proceedings of the aforesaid case, is made out which may call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C. as the same do not suffer from any illegality or infirmity.

7. The present application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed. Order Date :- 26.5.2025 Aditya ADITYA KUSHWAHA High Court of Judicature at Allahabad