Nobody is present to press the present application even in the revised reading of the cause list. Learned Additional Government Advocate is present for the State.
I have perused the records.
The present application has been filed under Section 482 Cr.P.C. for quashing of the proceedings of Case No. 4615 of 2006 (State vs. Raghunath and others) under Section 33(c) of the Indian Forest Act, 1927 and Section 2 of the Forest (Conservation) Act, 1980 pending before the Additional Chief Judicial Magistrate 1st, Shahjahanpur.
From the perusal of the records it appears that opposite party no. 2 lodged a first information report against the applicants under Section 33(c) of the Indian Forest Act, 1927 and under Section 2 of the Forest (Conservation) Act, 1980 in police station- Sadar, Shahjahanpur (Kotwali) on 03.05.2004, which states as under:-
"jsat dsl la0 [email protected]&[email protected] 'kkgtgkWiqj jsat Jh equh'k dqekj pkS/kjh ouokjh }kjk fnukad& 3-5-04 dks tkjh fd;k x;kA bldh tkWp esjs }kjk dh x;h tkWp ds nkSjku ik;k fd Jh fot; dqekj iqjk lkmFk flVh tykykckn flVh dkiksZjsV vkfQl LvsfM;e jksM cjsyh] ,0 j?kqukFk izcU/k ,YkkVk tykykckn ekxZ ds 1 fd0eh0 469 ls 470 ds e/; cjsyh eksM+ ls vkxs nk;ha iVjh ij fuekZ.kk/khu lkmFk flVh dkyksuh ds rhu xsVksa ds lkeus 8 x 14 fe0 o 65 x 21 eh0 rFkk 10 x 16 eh0 esa lajf{kr ou Hkwfe ij voS/k :i ls igqap ekxZ dk fuekZ.k fd;k gS] ogkW ns[kus ls ;g Li"V gks jgk gS fd ogkW igys o`{k jgs gksa ftudks gVk;k x;k gS Lo;a izkd`frd :i ls mls dScksa dks ugV fd;k x;k gSA mDr ekxZ ds fdukjs fd Hkwfe vf/klwpuk la0 [email protected] x 4&331&50 fnukad 10-2-60 ls Hkkjrh; ou vf/kfu;e dh /kkjk&29 ls lajf{kr ou ?kksf"kr ,oa bl rjg dk voS/k dk;Z Hkkjrh; ou vf/kfu;e 1927 dh /kkjk&33 ¼lh-½ rFkk ou laj{k.k vf/kfu;e 1980 dh /kkjk&2 ds rgr vijk/k gSA Jh fot; dqekj lkmFk flVh tykykckn jksM 'kkgtgkWiqj Jh vjofUnj flag izcU/k funs'kd ,yk;Ul lkmFk flVh dkiksZjsV vkfQl LvsfM;e jksM cjsyh] ,0 j?kqukFk izcU/k ,yk;Ul lkmFk flVh tykykckn jksM fudV cjsyh eksM+ 'kkgtgkWiqj esa lajf{kr ou Hkwfe ij voS/k dCtk dj xS[kkfudh iz;ksx esa mldk mi;ksx fd;k gSA budk ;g d`R; Hkkjrh; ou vf/kfu;e 1927 dh /kkjk&33 ¼lh-½ o ou laj{k.k vf/kfu;e 1980 dh /kkjk&2 dk mYya?ku gS o ek0 mPpre U;k;ky; ds vkns'k fnukad 12-12-96 dh vogsyuk gSAß""
The Trial Court took cognizance against the applicant on 15.09.2006 under the aforementioned sections and on non-appearance non-bailable warrant was issued. Therefore, the applicant filed the present application for quashing of the entire proceedings of the case.
While entertaining the present application on 3.12.2010, this Court passed the following order:-
"Heard Sri Pavan Kishore, learned counsel for the applicants and learned A.G.A. for the State-respondent.
The present 482 Petition has been filed for quashing of the proceedings of case no. 4615 of 2006 (State Vs. Raghunath and others) under section 33(c) of Indian Forest Act, 1927 and section 2 of the Forest (Conservation) Act, 1980 pending before the Additional Chief Judicial Magistrate 1st, Shahjahanpur.
It is contended by learned counsel for the applicants that the maximum sentence for the offence under section 33 (c) of Indian Forest Act, 1927 is six months and maximum sentence for the offence under section 2 of the Forest (Conservation) Act, 1980 is fifteen days and it is thus contended that the proceedings are barred under the provision of Section 468(2)(b) of Criminal Procedure Code.
Issue notice to opposite party no. 2 returnable within four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks' time for filing counter affidavit. Opposite party no. 2 may also file counter affidavit within the same period. As prayed by learned counsel for the applicant, two weeks' time thereafter, is granted for filing rejoinder affidavit.
List after expiry of aforesaid period before appropriate Court.
Till the next date of listing, no coercive action shall be taken against the applicant pursuant to the aforesaid case."
The opposite party no. 2 is served through the Civil Court, Shahjahanpur. The State has filed counter affidavit.
The contention on behalf of the applicant, as appears in the application as well as from the order dated 03.12.2010, is that in the present case there is bar to take cognizance as the period of limitation has been lapsed under Section 468(2)(b) of Criminal Procedure Code. Section 468 of Criminal Procedure Code reads as under:-
"468. Bar to taking cognizance after lapse of the period of limitation.-
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]"
Counsel for the State has pointed out that by virtue of U.P. Act No. 1 of 2001, Section 33 of Indian Forest Act, 1927 has been amended, whereby the offence under Section 33(c) is now punishable for a term which may be extended to two years, which was six months before the amendment.
Amendment carved out by U.P. Act No. 1 of 2001 reads as under:-
"Uttar Pradesh.- In section 33, in sub-section (1),-
(i) in clause (c), after the words "or clears", insert the words "or attempts to break-up or clear";
(ii) in clause (f), for the word "drags", substitute the word "removes";
(iii) for the words "six months or with the which may extend to five hundred rupees, or with both", substitute the words "two years, or with fine which may extend to five thousand rupees, or with both and on the second and every subsequent conviction for the same offence, with imprisonment for a term which may extend to two years and with fine which may extend to ten thousand rupees."
Section 33 of the Indian Forest Act as exist, after amendment, is mentioned herein after:-
"33. Penalties for acts in contravention of notification under Section 30 or of rules under Section 32.-(1) Any person who commits any of the following offences, namely:-
(a) fells, girdles, lops, taps or burns any tree reserved under Section 30, or strips off the bark or leaves from, or otherwise damages, any such tree;
(b) contrary to any prohibition under Section 30, quarries any stone, or burns any lime or charcoal or collects, subjects to any manufacturing process, or removes any forest-produce;
(c) contrary to any prohibition under Section 30, breaks up or clears 1[or, attempts to break up or clear] for cultivation or any other purpose any land in any protected forest;
(d) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under Section 30, whether standing fallen or foiled, or to say closed portion of such forest;
(e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion;
(f) fells any tree or 2[removes] any timber so as to damage any tree reserved as aforesaid;
(g) permits cattle to damage any such tree;
(h) infringes any rule made under Section 32, shall be punishable with imprisonment for a term which may extend to 3[two years, or with fine which may extend to five thousand rupees, or with both and on the second and every subsequent conviction for the same offence, with imprisonment for a term which may extend to two years and with fine which may extend to ten thousand rupees.] (2) Whenever fire is caused wilfully or by gross negligence in a protected forest, the State Government may, notwithstanding that any penalty has been inflicted under this section, direct that in such forest or any portion thereof the exercise of any right of pasture or to forest-produce shall be suspended for such period as it thinks fit."
The applicants are also summoned for contravention of Section 2 of Indian Forest (Conservation) Act, 1980, which is punishable under Section 3A for 15 days. Section 2 and 3 reads as under :-
"2. Restriction on the dereservation 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-
(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;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(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;
(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 it for reafforestation.
Explanation - For the porpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation;
but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
3. Constitution of Advisory Committee.
The Central Government may constitute a Committee consisting of such number of persons as h may deem fit to advise that Government with regard to-
(i) the grant of approval. under Section 2; and
(ii) any other matter connected with the conservation of forests which may be referred to h by the Central Government.
3A. Penalty for contravention of the provisions of the Act.
Whoever contravenes or abets the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.
In view of the amendment in Section 33(2) of the Indian Forest Act, the limitation for taking cognizance is three years, as the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
Section 468(2)(3) Cr.P.C. states that in case of more than one offences are tried together, the period of limitation shall be determined with reference to the offence which is punishable with more severe punishment. In the present matter punishment prescribed under Section 33(2) of the Indian Forest Act is more severe i.e. up to two years.
In the present matter the first information report was lodged on 03.05.2004 and the trial court took cognizance on 05.09.2006 i.e. within the period of three years, as prescribed under Section 468 (2)(3) of the Act.
From the above mentioned discussions, it is clear that after amendment in the year 2001, Section 33(2) of the Indian Forest Act is punishable for term up to two years in the State of U.P. i.e. the limitation under Section 468, for taking cognizance of such offence, is up to three years. In the present matter the cognizance has been taken within three years. Therefore, there is no illegality in the order of cognizance.
In view of the above discussions, the application lacks merit and is dismissed. Interim order, if any, stands vacated.
(Saurabh Shyam Shamshery, J.) Dated: 31.1.2019 Pkb.