Harish Chandra Mishra, J. - (1.) Heard learned counsel for the petitioners and learned counsel for the opposite parties. This application has been filed for quashing the order dated 30.11.2004 passed by the learned Sub -Divisional Judicial Magistrate, Madhupur at Deoghar, in GOCR Case No. 61 of 2004, whereby the cognizance has been against the petitioners for the offence under Sec. 33 of the Indian Forest Act and Sec. 2 of the Forest (Conservation) Act. The petitioners have also prayed for quashing the entire criminal proceeding against them in the said case.
(2.) The offence report was submitted by the forest guard stating that on 11.2.2004 at about 9 AM, he found the officials of ECL, Chitra, dumping the coal in Bhawanipur and Tulsidawar protected forests. On the basis of the offence report, the prosecution report was also submitted with the same allegations, in which the petitioners have been made accused, being the officials of S.P. Mines, Chitra, belonging to Eastern Coal Fields Ltd. In the prosecution report, it is stated that the forest in question was notified by notification No. C/F 17044/55 -2612 -R dated 26.8.1955 and accordingly, it is alleged that the petitioners had committed the offence under Sec. 33 of the Indian Forest Act and Sec. 2 of the Forest (Conservation) Act, and on the basis of the prosecution report, the Court below has taken cognizance against the petitioners as aforesaid.
(3.) Learned counsel for the petitioners has taken a short point challenging the order taking cognizance and the criminal proceeding against the petitioners. It is submitted that the prosecution report clearly shows that the notification declaring the forest to be protected forest, was issued on 26.8.1955 itself. It is submitted that under the provision of Sec. 30 of the Indian Forest Act, the validity of the notification is only for 30 years and accordingly, its validity expired in the year 1985. Learned counsel submitted that since the notification had lost its validity, no offence can be said to be committed under Sec. 33 of the Indian Forest Act. It has also been submitted that Sec. 2 of the Forest (Conservation) Act is not a penal provision and taking cognizance under the said Sec. shows complete non -application of judicial mind by the Court below. Learned counsel accordingly, submitted that the impugned order, as also the entire criminal proceeding against the petitioners, cannot be sustained in the eyes of law.;