- (1.) THIS application has been filed for quashing of the entire criminal proceeding of Complaint Case No.52 of 2004 including the order dated 20.12.2004 passed by the then Chief Judicial Magistrate, Chaibasa whereby and whereunder cognizance of the offence punishable under Section 33 of the Indian Forest Act was taken against the petitioner.
(2.) EARLIER the submission which had been advanced was noted under order dated 9.9.2013 which reads as follows : "Mr. Manoj Tandan, learned counsel appearing for the petitioner submits that this petitioner, who happened to be the Junior Engineer in the Department of Rural Engineering Organization, is being prosecuted, as one road, under the scheme of Prima Minister Gram Sarak Yojna, was being constructed over the forest land, by felling trees, but the petitioner, as per the allegation, was discharging public duty and in that event, he is not liable to be prosecuted for the offence under the Forest Act. For the other reasons also, the petitioner is not liable to be prosecuted, as the prosecution has not come forward with a case that any notification under Section 30(b) of the Forest Act, reserving the trees, which have been alleged to have been felled by this petitioner, has been reserved by issuing a notification and if no such notification is there, as stated above, one cannot be prosecuted under the Forest Act for felling trees and under the situation, the instant prosecution is fit to be quashed. However, learned counsel appearing for the State submits that earlier he was asked to file counter affidavit, but no counter affidavit has been filed but he will be taking instruction in the matter as to whether any notification had been issued in terms of Section 30(b) of the Forest Act relating to said forest where road was allegedly being constructed and, therefore, matter be posted after two weeks. As prayed for, let this case be listed on 23.9.2013. Till then, interim order passed on 19.8.2013 shall continue.  Today also learned counsel appearing for the State submits that counter affidavit could not be filed as necessary instruction has not been received. On such submission, prayer was made to adjourn the case.
(3.) HOWEVER , Mr. Tandan, learned counsel appearing for the petitioner submits that the matter can be disposed of on the point other than the point relating to issuance of notification in terms of the provision as contained in Section 30(b) of the Forest Act. 2004 (2) J.C.R 450 (Jhr.)]. 6. Similar issue akin to the fact of this case had fallen for consideration before this Court in a case of Arun Kumar Agarwal vs. State of Jharkhand and others (supra) wherein Their Lordships did observe as follows: "Admittedly, therefore, it is not the case where the petitioner has been cutting and removing the trees and/or doing any mischief with the forest land for their personal benefits. The work allotted to the petitioner was for widening and strengthening of the road 2 meters each from both the sides and in course of widening of the road, if some damages are caused to the newly growing plants that will not constitute forest offence and thus the machine used for the executing of the work could not have been seized by the officials of the Forest Department. At best the Forest Department may claim damages either on the petitioner or from the Road Construction Department for the alleged damages caused to the plantation. I am, therefore, of the opinion that seizure of the machine and notice for initiation of confiscation proceeding is wholly arbitrary and without jurisdiction. 7. Thus, on this count alone, entire criminal proceeding including the order taking cognizance warrants to be quashed. 8. However, going further in the matter the provision of Section 30(b) of the Indian Forest Act needs to be taken notice of which reads as follows: "30. Power to issue notification reserving trees etc. - -The State Government, may by notification in the Official Gazette, - (a).. (b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such terms, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the right suspended in the portion so closed; or (c)  9. As per the provision as mentioned above, any declaration made by the Government for the land to be a protected forest shall expire after expiry of 30 years from the date of the issuance of the notification. 11. Similar question fell for consideration before the Patna High Court in a case of Janu Khan and others vs. State of Bihar (AIR 1960 Pat 213) where His Lordship observed as follows: "Even if I take into consideration the notification referred to above, which is dated the 29th December, 1952, there had to be another notification under Section 30 of the Indian Forest Act, protected forest to be reserved from a date fixed in that notification.  11. Same view was taken by this Court in a case of Jagdish Mehta vs. State of Jharkand and others [2003 (2) J.C.R 525 (Jhr.)]. 12. Here in the instant case, nothing was placed before me as to whether any notification after expiry of 30 years had been reissued or not. 13. In that event, the prosecution of the petitioner seems to be unwarranted. 14. Accordingly, entire criminal proceeding of Complaint Case No.52 of 2004 including the order dated 20.12.2004 taking cognizance is hereby quashed. 15. In the result, this application stands allowed. Application allowed.;