STATE OF ORISSA Vs. DHANIRAM LUHAR

JUDGEMENT

(1.) The State of Orissa questions legality and propriety of the order by which a learned single Judge of Orissa High Court rejected the prayer seeking leave to appeal under S. 378(3) of the Code of Criminal Procedure, 1973 (in short the Code). Following is the order passed on 1-2-1996 : "Leave to appeal is refused."

(2.) The State sought leave to appeal against the order passed by learned S.D.J.M., Nuapada, holding that the respondent-Dhaniram Luhar (hereinafter referred to as the accused) was not guilty of offences punishable under S. 27(1)(a) of the Orissa Forest Act, 1972 (in short the Act).

(3.) Stand of the prosecution was that the respondent-accused had encroached about 5 acres of land for the purpose of cultivation in the Patidanger reserved forest. The official witnesses had deposed that the respondent-accused had encroached the land inside the aforesaid reserved forest within Sunabeda Wild Life Sanctuary and also produced sketch map of the plot under occupation of the accused. It is an accepted position that the accused in his statement under S. 313 of the Code had admitted encroachment of Government land. Learned S.D.J.M. held that mere acceptance of encroachment was not sufficient for the purpose of finding him guilty. He held that the authentic copy of the notification purported to have been issued under S. 21 of the Act was required to be filed which had not been done. He further observed that since the notification was not filed, and the procedures prescribed under Ss. 21 and 22 were not complied, the respondent-accused was entitled to acquittal. As noted above, the State prayed for grant of leave against acquittal which was rejected by the impugned order. According to it, the trial Court had erroneously analysed the evidence and did not apply correct principles of law.