Bina Kumari @ Bina Sharma vs The State Of Jharkhand

Heard the parties. Learned counsel for the petitioner submits that this interlocutory application has been filed with the prayer for early hearing of the instant Cr.M.P.

Since, the hearing of instant Cr.M.P. is taken up today, hence, this interlocutory application stands disposed of being infructuous.

By the Court:- Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with a prayer to quash and set aside the order dated 08.08.2024 passed by learned Judicial Magistrate-1^st Class, Jamshedpur whereby and where under the learned Judicial Magistrate-1^st Class, Jamshedpur has taken cognizance of the offences punishable under Section 33 of the Indian Forest Act, 1927 as amended by Bihar Amendment Act, 1989 and Section 27 & 29 of the Wild Life (Protection) Act, 1972 against the petitioner.

The allegation against the petitioner is that the petitioner trespassed into the forest area and carried out further construction of her house inside the protected forest area.

On the basis of the complaint filed by the Forester, the learned Judicial Magistrate-1^st Class, Jamshedpur has taken cognizance of the offences punishable under Section 33 of the Indian Forest Act, 1927 as amended by Bihar Amendment Act, 1989 and Section 27 & 29 of the Wild Life (Protection) Act, 1972 against the petitioner.

Learned counsel for the petitioner submits that the case is next fixed to 27.08.2026 for consideration of framing of charge.

Learned counsel for the petitioner next submits that the allegation against the petitioner is false and the petitioner is the lawful owner and occupier of the land and she is paying the holding tax to Jamshedpur Notified Area Committee. It is then submitted that the alleged work being undertaken by the petitioner was a repair work and the same cannot be construed as new construction or encroachment, hence, it is lastly submitted that the prayer as prayed for by the petitioner in this Cr.M.P., be allowed.

Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that there is direct and specific allegation against the petitioner of contrary to the prohibition under Section 30 of the Indian Forest Act clearing for any purpose the land inside the Wildlife Sanctuary. It is next submitted that though Section 27 & 29 of the Wild Life (Protection) Act, 1972 are respectively the restrictions and prohibitions, but the penalty therefor, has been provided for under Section 51 of the said Act and at the time of framing of charge, the learned Judicial Magistrate-1^st Class, Jamshedpur is expected to frame charges under the relevant penal provision of law i.e. under Section 51 of the Wild Life (Protection) Act, 1972. It is then submitted that Section 27 of the Wild Life (Protection) Act, 1972 restricts entry of any unauthorised person, to any sanctuary and the place of occurrence land is a portion of Dalma Wildlife Sanctuary. It is next submitted that Section 29 of the Wild Life (Protection) Act, 1972 prohibits destruction or damaging or diverting the habitat of any wildlife animal by any Act and it is next submitted that the contention of the petitioner that she is the owner of the land having right, title or interest over the same is at best a defence of the petitioner which the petitioner can raise at the time of trial and adjudication of which requires evidence to be recorded and certainly the same cannot be considered by this Court in exercise of its power under Section 528 of the BNSS, 2023. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that the defence of the accused person of the case and the veracity of the evidence put forth by the accused person, cannot be considered by the High Court, in exercise of jurisdiction under Section 482 Cr.P.C. which corresponds to Section 528 of the BNSS, 2023, as that would be the job of the trial court, as has been held by the Hon’ble Supreme Court of India, in the case of State of Madhya Pradesh vs. Awadh Kishore Gupta & Ors. reported in (2004) 2 Supreme 501.

It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of State of Uttar Pradesh & Anr. vs. Akhil Sharda & Ors. reported in 2022 LiveLaw SC 594 that no mini trial can be conducted by the high court in exercise of power under Section 482 Cr.P.C which corresponds to Section 528 of the BNSS, 2023, the relevant portion of which reads as under :-

Now coming to the facts of the case, there is direct and specific allegation against the petitioner that contrary to the prohibition under Section 30 of the Indian Forest Act, she was clearing the forest area for some purpose. There is also allegation against the petitioner of entering into the Dalma Wildlife Sanctuary without any Authority and destroying and damaging the habitat of wildlife animals.

In view of the direct allegation against the petitioner, this Court is of the considered view that this is not a fit case where the prayer as prayed for by the petitioner in this Cr.M.P. is to be acceded to by this Court in exercise of its power under Section 528 of the BNSS, 2023.

Accordingly, this Cr.M.P., being without any merit, is dismissed.