- (1.) The petitioners, who have been made accused, have filed this application under Section 482 Cr.P.C. for quashing the entire criminal proceeding pertaining to G.O.C.R. Case No.63 of 2004 pending in the Court Sub Divisional Judicial Magistrate at Madhupur in the district of Deoghar as also the order dated 30.11.2004 passed by the Magistrate taking cognizance for the offence under Section 33 of the Indian Forest Act and Section 2 of the Forest (Conservation) Act, 1980.
(2.) It appears that the informant, who is a Forest Guard, submitted a prosecution report alleging that on 10.2.2004 while he was on patrolling duty in the protected forest, he found the people of Eastern Coalfield Limited (E.C.L.), Chitra were dumping overburden (Soil and Stone) removed from the ECL Mines and Colliery. It is further alleged in the prosecution report that since 1980, the people of ECL have been dumping the said overburden and on being inquired, those people did not disclose their names, rather they said that the work is being done by the order of higher authority and Area Manager. It was alleged that the dumping of stones and soil have been done by encroaching the forest land. On the basis of the prosecution report, the aforementioned case was instituted for an offence under Section 33 of the Indian Forest Act read with Section 2 of the Forest (Conservation) Act against the petitioners who were holding the post of General Manager, Director (Technical), Superintending Engineers, Managers and retired Managers of Eastern Coalfield Limited. On the basis of the allegations made in the prosecution report, the Sub Divisional Judicial Magistrate took cognizance of the offence against the petitioners.
(3.) Mr. Rajesh Lala, learned counsel appearing for the petitioners, assailed the impugned order of cognizance and the entire proceeding as being abuse of process of law. Learned counsel submitted that according to prosecution report, the alleged act of dumping of soils and stones started since 1980 and the alleged dumping work was being done by unknown ECL staffs. Hence, cognizance itself is barred under Section 468 of the Code of Criminal Procedure. Learned counsel further submitted that the alleged encroachment by dumping overburden from the coal mines was being done by destroying the natural forest. Learned counsel submitted that no such notification was ever issued after the first notification dated 26.8.1955 which lapsed after 30 years. Learned counsel submitted that in absence of any notification under Section 30 of the Indian Forest Act declaring any tree or class of tress to be reserved in a protected forest, the provision under Section 33 of the Indian Forest Act cannot be sustained. Learned counsel further submitted that on the basis of prosecution report, sanction was accorded by the Divisional Forest Officer to lodge a case under Section 33 of the Indian Forest Act, but the Sub Divisional Judicial Magistrate has also taken cognizance under Section 2 of the Forest (Conservation) Act which is wholly without jurisdiction. Lastly learned counsel submitted that during the relevant period when the offence alleged to have been committed, the petitioners were never posted in the said area. Moreover, some of the petitioners have retired from the services.;