Justice Rakesh Kainthla, Himachal Pradesh High Court
Person Can't Be Held Liable For Offence U/S.33 Forest Act In Absence Of Notification & Its Due Publication: Himachal Pradesh High Court
|The revision petition before the Himachal Pradesh High Court was directed against the order of the Judicial Magistrate First Class vide which the accused was discharged.
The Himachal Pradesh High Court has upheld a discharge order in a case registered under the Indian Forest Act and reiterated that a a person cannot be held liable for the commission of an offence punishable under Section 33 of the Indian Forest Act in the absence of any notification and its due publication
The revision petition before the High Court was directed against the order of the Judicial Magistrate First Class vide which the accused respondent was discharged.
The Single Bench of Justice Rakesh Kainthla stated, “The charge sheet does not mention that any notification was issued that the forest where the encroachment was made was a reserved forest. This Court held in State of H.P. Vs. Ami Chand 1992 (2) Shim.LC 169 that a person cannot be held liable for the commission of an offence punishable under Section 33 of the Indian Forest Act in the absence of any notification and its due publication.”
Deputy Advocate Prashant Sen represented the Petitioner.
Factual Background
The Police presented a chargesheet against the accused before the Trial Court for the commission of an offence punishable under Section 447 of the Indian Penal Code (IPC) and Sections 32 and 33 of the Indian Forest Act. It was asserted that the accused had encroached upon a certain share of land. The police registered the FIR and investigated the matter. The Trial Court relied upon the judgment of the High Court in Param Dev Vs. State of H.P. (2015) to hold that the FIRs were to be registered against the encroachers who had encroached upon more than 10 bighas of Government land, and no FIR could be lodged against a person who had encroached upon less land. The accused was thereby discharged.
Being aggrieved by the order passed by the Trial Court, the State filed the revision asserting that the Trial Court failed to appreciate that offences punishable under Section 447 of the IPC and Sections 32 and 33 of the Indian Forest Act were made out. The Magistrate was duty-bound to take cognisance and put notice of accusation. It was in such circumstances that the matter reached the High Court.
Reasoning
The Bench took note of the fact that in Param Dev (supra) the directions were issued to institute/lodge FIRs against the encroachers who had encroached upon more than 10 bighas of Government land. It was also stated therein that the FIR could not be lodged where the encroachment was less than 10 bighas. “Therefore, the learned Trial Court had rightly concluded that the accused could not be charged with the commission of offences punishable under Section 447 of the IPC and Sections 32 and 33 of the Indian Forest Act”, the Bench said.
The Bench found that the complaint only mentioned that the accused had encroached upon the Government land and constructed a Gharat. There was no averment that the entry was made with an intent to commit an offence or to intimidate, insult or annoy the person in possession. Hence, the notice of accusation could not have been put for the commission of an offence punishable under Section 447 of the IPC. The complaint was also silent regarding the essential ingredients of the trespass.
Noting that the chargesheet did not mention that any notification was issued that the forest was a reserved forest, the Bench held that no notice of accusation could have been put even on the merits. Finding no infirmity in the order passed by the Trial Court, the Bench dismissed the appeal.
Cause Title: State of H.P. v. Ghambo Devi (Neutral Citation: 2025:HHC:28247)
Appearance
Appellant: Deputy Advocate General Prashant Sen