RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPLICATION NO.67 OF 2002 (U/s 482 Of Cr.P.C.) Sister Superior Clementine …………Applicant Versus State of Uttaranchal & another …………Respondents Dated: August 25, 2010 Mr. BP Nautiyal, Adv. for the applicant Mr. Amit Bhatt, Addl. GA for the State/respondents HON. DHARAM VEER, J. This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the proceedings of Crl. Case No.521/97, DFO Vs. Sister Superior Clementine pending in the court of CJM Dehradun. Heard learned counsel for the parties and perused the material on record. In brief, the facts of the case are that on 8.3.1997 the respondent no.2 while on patrolling duty, saw that on the private forest land declared by the Government, without prior permission of the State Government/Forest Department, construction of a building was being done by digging the forest land for non-forest purpose. On being enquired, the labourers working on the site informed that the construction work was being carried out as per the orders of petitioner and they were employed by co-accused Rajiv Malhotra, contractor. It was also stated that for this non-forest work, the accused had not obtained prior sanction from the Government/Forest Department. Therefore, the complainant was filed as per Sections 5, 6, 2 7, 9 and 15 of U.P. Private Forests Act, 1948 [hereinafter to be referred as Act of 1948] as well as the provisions of Section 2 and 3-A of the Forest Conservation Act, 1980 [hereinafter to be referred as Act of 1980]. Thereafter, the petitioner filed an objection which was rejected by the CJM Dehradun vide order dated 18.12.2000. The petitioner also preferred a revision which was also dismissed by the Sessions Judge, Dehradun vide judgment and order dated 14.1.2002. Assailing the entire proceedings, this petition has been filed. A counter affidavit has also been filed denying the averments made in the application. Learned counsel for the petitioner primarily submitted that on a bare perusal of the complaint, the offences u/s 2 and 3-A of the Act of 1980 are not made out. I find force in this argument. Before further discussion, it is pertinent to mention Sections 2 and 3-A of the Act of 1980 which are 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; 3 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. 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.” On a bare perusal of Section 3-A of the above- said Act of 1980, quoted above, it becomes quite clear that whoever will contravenes or abets the contravention of any of the provisions of Section 2 shall be punished under this Section. Now Section 2 of the Act of 1980 prohibits the State Government and other authorities from use of the land for non-forest purpose, except with the prior approval of the Central Government, however I find that this clause is not applicable to the petitioner inasmuch as petitioner is neither the State nor any authority of the State and no individual can be held guilty for violation of provisions of Section 2 which is punishable under Section 3-A of the Act of 1980 hence this clause at all is not applicable to the petitioner. Sri Amit Bhatt, learned Addl. GA also conceded to this point. As such the proceedings u/s 2 and 3-A of the Act of 1980 so far as it relates to the petitioner are liable to be quashed and are accordingly quashed. Learned counsel for the petitioner next argued that the rest of the offences i.e. Sections 5, 6, 7, 9 and 15 of the Act of 1948 are also not made out as the work of digging does not come within the purview of forest produce. Here, I do not find any force in this argument. Forest produce has been defined under Section 3(7) of the Act of 1948 which reads as under: - “(7) “Forest produce” includes the following whether found in, or brought from, a forest or not, that is to say- (a) timber, fuel charcoal, caoutchouc’ catechu wood-oil, resin, gum, natural varnish, lac, mahua flowers, mahua-seeds, mango, jamun, ciraunji, kuth and myrobalans; and 4 (b) (i) trees and leaves, flowers and fruits, bark and other parts or produce not hereinbefore mentioned, of trees. (ii) plants not being trees (including grass, creepers, reed and moss) and all parts or produce of such plants. (iii) wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax, and all other parts of produce of animals, and (iv) peat, surface soil and rock;” In view of this definition defined u/s 3(7)(iv) of the forest produce, it is now proved that the Forest Produce also includes the peat, surface soil and rock and the petitioner was definitely doing illegal work under the domain of Forest Produce. Besides a notification u/s 4 of the Act of 1948 has also been filed by the State along with the affidavit vide which the Governor Uttar Pradesh prohibited the cutting of forests specified in the government notification dated 21.4.1966 of the trees, has been filed. Section 5 of Act of 1948 defines Rights in notified area or forest to be exercisable in accordance with this Act, Section 6 defines the restrictions on rights to cut, collect, to remove timber, etc. from domestic or agricultural needs, Section 7 defines restrictions on rights to reclaim forest for purposes of cultivation and Section 9 defines certain persons not to sell or transfer timber cut in any forest while Section 15 defines that the offences under this Chapter and trial of such of offences and penalties thereof. By Section 10 of the Act of 1948, which defines the Restrictions on rights of landlord, or persons claiming through landlord to cut and remove timber or forest produce, which provides that a landlord, or a lessee or other person claiming through the landlord, shall not cut or remove, or permit any person to cut or remove, any trees, timber or other forest produce in or from any notified area or forest to such an extent as to deprive the right-holders of such quantity as the rules 5 permit them to take in the exercise of their rights in the said notified area or the forest. Now, on a careful perusal, it reveals that admittedly the Waverly Estate, where the petitioner started construction is notified as Forest in Government Records as per the notification issued u/s 4 of the said Act of 1948. The digging work carried over the said land also comes within the purview of forest produce. Even no sanction plan could be produced by the petitioner before the Court. It is settled law that without obtaining appropriate orders from the concerned Development Authority, the petitioner cannot do the work of construction or digging. As per Section 10 of the Act of 1948, the petitioner was not authorized to cut or remove the forest produce i.e. digging the non-forest land and as has already been discussed above, peat, surface soil and rock also comes within the domain of forest produce. As such after analyzing the entire facts and circumstances of the case, at this stage I find that the offences punishable under Sections 5, 6, 7, 9 and 15 of the Act of 1948 are prima facie made out against the petitioner at this stage. Even the trial court will decide the case after recording the evidence of the complainant as well as of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint against the petitioner are taken at their face value and accepted in their entirety at this stage, I am of the view that the offences punishable u/s 5, 6, 7, 9 and 15 of the Act of 1948 are prima facie made out against the petitioner. The trial court will decide the case after recording the evidence 6 adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. For the reasons recorded above, C482 petition is partly allowed. Proceedings u/s 2 and 3-A of the Act of Forest Conservation Act, 1980 pending before the trial court against the petitioner are hereby quashed. However, the proceedings u/s 5, 6, 7, 9 and 15 of the U.P. Private Forests Act, 1948 against the petitioner, pending before the trial court shall continue as per law. (Dharam Veer, J.) August 25, 2010 Rdang