IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.111 of 2003. Date of decision: 5.4.2010 State of H.P ..Appellant Versus Bhim Chand & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellant: Sh.Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr.H.K.Paul, counsel for respondent No.1. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 17.9.2002 passed by the learned Sub Divisional Judicial Magistrate, Karsog, District Mandi in Police Challan No.199-1 of 2001/1998 whereby he acquitted the accused of having committed offences punishable under Sections 120-B and 420 of the Indian 2 Penal Code read with Sections 32 and 33 of the Indian Forest Act. Briefly stated the facts of the case are that Bhim Chand, accused No.1 who is a resident of village Thogi in Tattapani had applied for grant of T.D from jungle Kanda and sanction to cut one tree was granted to him by PW/15, DFO, Karsog. Thereafter, a complaint was made by two persons namely Dhani Ram and Uma Dutt that the residents of village Thogi had no TD rights in Kanda Jungle and that accused No.1 entered into a conspiracy with accused No.2 to 4 who were the block officer, range officer and Patwari of the concerned area. According to the prosecution, the four accused persons entered into a conspiracy and by misrepresenting the facts cheated the State Government and got an order of sanction of T.D passed in favour of the accused No.1. At the outset, we may state that after the complaint was made, the DFO, PW/15 ordered that the converted timber from the tree in question be seized by the Forest Department and this timber has been ordered 3 to be sold by the Forest Department by the learned Trial Court. The learned Trial Court acquitted the accused holding that the prosecution had miserably failed to prove that the accused had committed any act of cheating. As far as offences under the Indian Forest Act are concerned, the learned Trial Court rightly came to the conclusion that the tree had been cut and converted to timber after obtaining requisite sanction from PW/15. The main case of the prosecution is based on the premise that the residents of village Thogi have no timber distribution rights in the Forest at Kanda. This in fact, is more in the nature of civil dispute than a criminal offence. The defence of the accused is that originally the area, in question, fell under Mohal Jeori and the Bartandari rights of the residents of Mohal Jeori are recorded, as per the record of rights, in Jungle Kanda. Mohal Jeori was bifurcated and part of it fell in Mohal Tattapani. Even the residents of Tattapani had rights in Kanda forest. Tattapani was later divided into Mohal Kidya and Thogi. Here the dispute arises. Whereas according to the 4 defence, the residents of Thogi have Bartandari rights including timber distribution rights in Jungle Kanda, according to the prosecution, residents of village Thogi have no rights in Jungle Kanda. From the evidence on record, it is obvious that there is some discrepancy between the forest settlement and the revenue settlement. Even according to the prosecution, Partap Singh, while making his statement had made only reference of Sabka Bartandari rights, i.e., the previous Bartandari rights. Therefore, he had not made any false statement which could have induced the DFO to pass the order in question. In fact, it was the duty of the DFO to have verified whether Sabka rights meaning previous rights still exist or not. Admittedly, PW/15 did not make any attempt to verify the correctness of these rights. It has also been proved on record that one other person namely Tara Chand from village Thogi had been granted sanction to cut one tree from Kanda Forest. Therefore, it is obvious that the Forest Department was itself not sure whether the residents of Mohal Thogi had any rights in Kanda forest or not. It may have been better, 5 in such an eventuality, if the application of the petitioner for grant of permission to fell a tree under the timber distribution right scheme had been kept pending till this dispute was resolved, but by no stretch of imagination, it can be said that the accused persons conspired to cheat the State Government. They presented the correct facts as they perceived them to the State Government and a senior official, i.e., PW/15, DFO passed an order on the same. As held by the learned Trial Court, Bartandari rights, as claimed by the accused, may need to be adjudicated by a competent Civil Court but it cannot be said with certainty that they have no rights in the forest. This question cannot be decided in criminal proceedings and is, therefore, left open to be decided in the appropriate civil proceedings. It is however, more than clear that it cannot be said that the accused are guilty of having committed the offence of cheating. As far as the offence under Forest Act is concerned, admittedly, the tree was cut only after obtaining sanction from the Forest Department and, therefore, no offence under the said act was committed. 6 In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. The case property be disposed of in accordance with the orders passed by the learned Trial Court. 5th April, 2010 ( Deepak Gupta ) (m) Judge