Himachal Pradesh High Court | No Liability Under Section 33 Forest Act Without Reserved Forest Notification | FIRs Maintainable Only for Encroachment Above 10 Bighas
Isabella Mariam
The High Court of Himachal Pradesh Single Bench of Justice Rakesh Kainthla held that no notice of accusation could have been issued against the accused in relation to alleged encroachment upon forest land. The Court concluded that there was no infirmity in the order passed by the Judicial Magistrate First Class, Mandi, who had earlier discharged the accused. The High Court dismissed the State’s criminal revision petition and upheld the discharge, stating that the complaint did not disclose the essential ingredients of the offences alleged, nor was the required notification under the Indian Forest Act placed on record. Consequently, the petition was dismissed, and pending applications were also disposed of.
The matter arose from allegations that the accused had encroached upon a small portion of government land. The police had filed a challan against the accused before the Judicial Magistrate First Class, Mandi, for offences punishable under Section 447 of the Indian Penal Code and Sections 32 and 33 of the Indian Forest Act. The allegation was that the accused had encroached upon 0-0-9 bighas of land bearing Khasra No. 204/38/2, which was forest land.
The police registered the First Information Report and conducted an investigation. A demarcation report was obtained, which indicated that the accused had encroached upon the government land. Based on this, a charge sheet was presented before the Trial Court.
The Trial Court considered the matter and relied upon the decision of the High Court in Param Dev v. State of Himachal Pradesh (2015:HHC:236). In that case, the Court had held that FIRs were to be registered against encroachers who had encroached upon more than 10 bighas of government land, and no FIR could be lodged for encroachment of a smaller area. Since the allegation in the present case was of encroachment upon less than 10 bighas of land, the Trial Court concluded that no notice of accusation could be framed. Accordingly, the accused was discharged by order dated 2 April 2015.
Aggrieved by this order, the State of Himachal Pradesh filed a criminal revision petition before the High Court. The State contended that the Trial Court had erred in discharging the accused despite prima facie evidence of encroachment. It was submitted by Mr. Prashant Sen, learned Deputy Advocate General, that the demarcation report had established encroachment and, therefore, the offences under Section 447 of the IPC and Sections 32 and 33 of the Indian Forest Act were made out. The State argued that the Magistrate was duty-bound to take cognisance and put notice of accusation.
The High Court examined the submissions and carefully considered the record. The Court referred to several precedents of the Hon’ble Supreme Court regarding the scope of revisional jurisdiction. It observed that revisional jurisdiction is supervisory in nature and cannot be exercised as if it were appellate jurisdiction. The Court referred to Malkeet Singh Gill v. State of Chhattisgarh (2022) 8 SCC 204, which stated that revisional jurisdiction is limited to rectifying patent defects, errors of jurisdiction, or errors of law. The Court also cited State of Gujarat v. Dilipsinh Kishorsinh Rao (2023) 17 SCC 688, and Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460, noting that revisional powers must be exercised sparingly and only when a glaring error or jurisdictional defect exists.
The High Court further referred to Kishan Rao v. Shankargouda (2018) 8 SCC 165, which held that it is impermissible for the High Court to reappreciate evidence in revision unless the order is perverse or wholly unreasonable. Similarly, in Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, it was reiterated that the revisional court cannot upset factual findings in the absence of perversity.
On applying these principles, the High Court noted that in Param Dev (supra), it had already directed that FIRs could only be registered against encroachers who had encroached upon more than 10 bighas of government land. In the present case, the allegation was of encroachment upon less than 10 bighas. Therefore, the Trial Court had rightly concluded that no FIR could be lodged and no notice of accusation could be issued.
The Court also observed that the complaint did not disclose the essential ingredients of criminal trespass under Section 447 IPC. Section 441 IPC defines criminal trespass as entry upon property in possession of another with intent to commit an offence or to intimidate, insult, or annoy the person in possession. The Court referred to Mathri v. State of Punjab AIR 1964 SC 986, where it was held that prosecution must prove the intent to insult, intimidate, or annoy. Similarly, in Rajinder v. State of Haryana (1995) 5 SCC 187, it was held that unless the intent required by Section 441 is proved, no offence of trespass is committed.
The High Court found that the complaint merely alleged encroachment and construction of a Gharat, without any averment of intent to commit an offence or to intimidate, insult, or annoy. Thus, no case under Section 447 IPC was made out.
Regarding the alleged offence under Section 33 of the Indian Forest Act, the High Court observed that no notification had been placed on record to show that the land in question was a reserved or protected forest. Referring to State of Himachal Pradesh v. Ami Chand 1992 (2) Shim LC 169 and State of Himachal Pradesh v. Ravi Kumar 2008 HLJ 363, the Court stated that in the absence of a notification duly published and made known in the locality, an accused cannot be held liable under Section 33.
In light of these findings, the High Court concluded that no notice of accusation could have been put against the accused even on merits. The Court therefore held that there was no infirmity in the order passed by the Trial Court discharging the accused.
The High Court recorded its reasoning extensively, quoting settled principles from the Supreme Court. It observed in Malkeet Singh Gill v. State of Chhattisgarh: “The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow… The object of the provision is to set right a patent defect or an error of jurisdiction or law.”
It further cited State of Gujarat v. Dilipsinh Kishorsinh Rao, wherein it was recorded: “The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.”
The High Court referred to Amit Kapoor v. Ramesh Chander for principles on the exercise of revisional jurisdiction: “Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court… The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely.”
It was also noted: “Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner… Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage.”
Quoting Kishan Rao v. Shankargouda, the Court recorded: “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court…”
The High Court also relied on Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, where it was held: “Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible.”
Referring to Bir Singh v. Mukesh Kumar, the Court recorded: “It is well settled that in the exercise of revisional jurisdiction… the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.”
Applying these principles, the Court observed that the directions in Param Dev were binding. It noted: “Given the fact that the petitioner herein has purportedly encroached upon Government/forest land to the extent of an area measuring 8-6-17 bighas… when FIRs were directed to be lodged against encroachers upon Government/forest land who have encroached therein beyond 10 bighas… no FIR in pursuance to the directions of this Court was either lodgable or instituteable against the petitioner herein.”
The Court also stated: “Even otherwise, the complaint was silent regarding the essential ingredients of the trespass… the prosecution has to prove that the aim of the accused was to insult, intimidate or annoy and merely because the insult, intimidation or annoyance was caused by the entry is not sufficient.”
It recorded from Rajinder v. State of Haryana: “In other words, unless any of the intentions referred to in Section 441 is proved, no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case.”
Regarding Section 33 of the Forest Act, the Court stated: “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 Court stated the absence of any such notification or evidence of its publication in the locality, observing: “It would be against the principle of natural justice to permit the subject of a State including the accused to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge.”
The Court finally observed: “Therefore, no notice of accusation could have been put even on the merits.”
The High Court concluded that there was no legal infirmity in the order passed by the Trial Court. It held: “Thus, there is no infirmity in the order passed by the learned Trial Court justifying the interference of this Court.” The Court directed: “Hence, the present petition fails and the same is dismissed, so also the pending miscellaneous application(s), if any.”
Advocates Representing the Parties
For the Petitioner: Mr. Prashant Sen, Deputy Advocate General
Case Title: State of H.P. v. Ghambo Devi
Neutral Citation: 2025: HHC:28247
Case Number: Cr. Revision No. 255 of 2015
Bench: Justice Rakesh Kainthla
