Had already been imposed fine by Tehsildar
Srinagar: The J&K High Court has quashed an First Information Report (FIR) lodged against three residents of Budgam village on the ground that they cannot be prosecuted under criminal law for the act under which they have already been punished.
The FIR was lodged against the residents for lopping the branches of a walnut tree that protruded over their houses. On the complaint of neighbours, the residents had been imposed fine by Tehsidlar for the act.
As per the Section 38 of the Jammu and Kashmir Land Revenue Act and Section 13 of the Jammu and Kashmir Preservation of Specified Trees Act, the cutting of walnut trees is prohibited.
The aggrieved petitioners had approached the court through their counsel, Shafkat Nazir for the quashing of FIR lodged in Police Station Chari-Sharief under section 436-A RPC.
The petitioner counsel had stated before court that it against the law that petitioners were charged for a crime which they have not done. In actual they helped and piled the walnut wood in a nearby graveyard.
After hearing the counsel, Justice MK Hanjura had observed that the Station House Officer (SHO) had misdirected himself while registering a case against the petitioners under section 435-A RPC.
The case diary reveals that due to heavy rains and snow, massive landslides were triggered in many parts of valley in 2015. The worst hit was the Budgam district where 16 people had died.
The petitioners reside in village Hafroo where a red alert was declared. With the landslides, the tree standing on the upper areas fell to the lower end on the residential houses of petitioners. The trees included the walnut tree that protruded over the residential houses of the petitioners.
The petitioners approached the concerned authorities to seek permission for removing the walnut tree but had a cold response from the authorities.
The petitioners removed the walnut tree and piled the wood in the graveyard themselves.
On 13-04-2015, the neighbors of the petitioners approached lodged a complaint with Tehsil office accusing petitioners of lopping the branches of the walnut tree standing in graveyard and prayed for initiation of action against them.
The Tehsildar deputed a team of officials of the revenue department to visit the spot and assess the facts. The Tehsildar proceeded against the petitioners as per the provisions of Jammu and Kashmir Land Revenue Act and Jammu and Kashmir Preservation of Specified Trees Act and imposed a fine of Rs 3500.
Dissatisfied with the order of the Tehsildar, the neighbors lodged a complaint in Police station Chari-Shareef regarding the same act. A FIR was lodged under section 436-A RPC.
Section 37 of the Jammu and Kashmir Land Revenue Act deals with the reserved trees and provides a reserved tree shall not be sold or converted by any person to his own use without government order. A cabinet order no. 621-C of 1955 said that walnut tree shall be deemed to be reserved tree in Kashmir and the removing of walnut tree without the permission in writing of competent authority is prohibited.
The court said that the Sub Section (1) of the Section 38 of the Jammu and Kashmir Land Revenue Act makes it clear that a person under whom a fine has been imposed under such section shall not be prosecuted for the same act under the criminal law.