Patna High Court
Parhan Mahto vs Divisional Forest Officer on 18 July, 1951
Equivalent citations: AIR1952PAT261, AIR 1952 PATNA 261
ORDER Ahmad, J.
1. This application in revision is directed against an order convicting the petitioner for having committed an offence under Section 49, Bihar Private Forests Act. The petitioner has been sentenced to undergo simple imprisonment for a period of fifteen days.
2. The case for the prosecution, briefly stated, is that the private forest of Pokharia has been constituted a private protected forest under the provisions of the Bihar Private Forests Act, 1947 (IX of 1948). On 22nd September, 1949, the petitioner, along with seven others, was detected by one Jugeshwar Singh, who was patrolling in the jungle, cutting wood. Babu Radha Krishna Ram, Beat Officer, on information came to the spot, and asked the petitioner to show his permit, but he could not show it. The Beat Officer tried to seize the wood; but he was resisted. He, therefore, sent information to the police station through the forest guard, and he himself remained with the petitioner there. The forest guard returned with two constables. The wood was seized in a village called Dhabia, and kept in the custody of one Dhanuki Singh. The Beat Officer wrote down a seizure report (exhibit 2). He also wrote a report about the offence (exhibit 4). The necessary sanction having been obtained, the petitioner was prosecuted under Section 49 of the said Act.
3. The petitioner has denied the charge. His case is that he has been maliciously implicated in the case, as he refused to pay bribe to the prosecution witness No. 1 which he wanted to extort from the petitioner.
4. The prosecution has examined four witnesses, P.W. 1, Radha Krishna Ram, is the Beat Officer who acted on the information of the forest guard, Jugeshwar Singh. P.W. 2 is Gaya Singh constable who was requisitioned from the police station Ichak by P.W. 1 to help him in seizing the wood. P.W. 3, Murlidhar Prasad, is the forest guard who has proved the publication of notice under Sections 14, 21 and 29 of the Bihar Private Forests Act, 1947. P.W. 4, Jugeshwar Singh, is the forest guard who detected the petitioner cutting wood in the jungle. The petitioner examined two witnesses in support of his defence.
5. The Court of appeal has accepted the prosecution evidence and rejected the defence version.
6. Mr. L.K. Chaudhury, learned advocate for the petitioner, has contended that there is no evidence on the record in support of the fact that Pokharia forest is a private protected forest and as such the conviction passed against the petitioner is not maintainable in law. Section 3, Clause (10) of the Bihar Private Forests Act reads:
" 'Private protected forest means a forest specified in a notification issued under Section 30 or the proviso thereto;."
Section 30 of the Act provides that, when certain events have occurred which need not be mentioned here:
"the Provincial Government shall publish a notification in the official Gazette specifying definitely according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest from a date fixed by the notification, and from the date so fixed such forest shall be deemed to be a private protected forest."
So under the Act it is ultimately the publication of a notification in the official gazette specifying definitely, according to the boundary marks erected or otherwise, the limits of the forest, which converts a private forest into a private protected forest. In the absence of the publication of the notification in the official gazette as contemplated by Section 30 with regard to any particular private forest, it cannot be deemed to be a private protected forest. The only evidence on the point of publication of the notification required under the provisions of the Act is the oral evidence of P.W. 3, Murlidhar Prasad. He deposed in examination-in-chief:
"I know Pokharia Reserve Jungle. I had served notices there under Sections 14, 21 and 29 of Bihar Private Forests Act on 23rd December 1947 by beat of drums. Myself and Beat Officer Bhagwat Prasad were there. The notices were pasted in village Sijhua in the house-wall of Budhnath Mahto as village Pokharia contains no inhabitants. Nobody-- villager -- agreed to put any signature on the notices."
In support of the evidence of this witness, the service report has been exhibited in this case, and that is exhibit 5. No copy of the notification published in the gazette or the gazette itself has been placed on the record. Therefore, in the absence of the notification itself specifying therein definitely the limits of the forest and the publication of the same in the official gazette, it cannot be held on the basis of the materials on the record of this case that Pokharia forest has been constituted a private protected forest; and, unless it is established that Pokharia forest has been constituted a private protected forest, none of the provisions imposing penalty on persons for contravening the provisions of the Private Forests Act can come into play, and the conviction, therefore, passed on the petitioner under Section 49 of the Act must be held to be bad in law. Mr. Choudhury has relied on two cases. One is an unreported decision of this Court in 'LALA BALARAM LAL v. THE STATE', Cri Revn No. 374 of 1951 disposed of on the 2nd July 1951. The other is 'MANSID ORAON v. THE KING', AIR (38) 1951 Pat 380. In the earlier case. Rai, J. has observed:
"What the prosecution had to prove was that the forest in question was a 'private protected forest' as defined in the Act which could be done by bringing on record the notification published in accordance with Section 30 of the Act.
As in the present case there is nothing on the record from which it can be ascertained that the forest in question was a private protected forest on the relevant date, the conviction of the petitioner cannot stand."
The second case is in connection with an offence under clauses (f) and (h) of Section 26 (1) of the Forest Act, 1927. Under that Act a reserved forest is constituted by the operation of the Section 20. That section provides that, when certain events have occurred, the Provincial Government "shall publish a notification in the official gazette specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declare the same to be reserved from a date fixed by the notification". Sub-section (2) of that section says that "from the date so fixed shall be deemed to be a reserved forest". For all practical purposes, the words used in Section 20 of the Forest Act, 1927, are the same as in the proviso to Section 30 of the Bihar Private Forests Act, 1947. In that case also the prosecution had not produced the notification, if any, issued under Section 20 specifying definitely the limits of the forest, Agarwala, C.J. observed :
"The prosecution has, by oral evidence, endeavoured to prove that the land in question falls within certain boundary pillars. Presumably it was intended to imply that these were the boundary marks referred to in Sub-section (1) of Section 20. It may be that they are so; but for the purpose of proving the guilt of the petitioners it is necessary to show not only that they did the acts mentioned in Clauses (f) and (h) of Section 26 (1), but also that they were not entitled to do those acts because there had been a notification issued under Section 20 (1) specifying the limits of the forest and that the land in question fell within those limits."
7. Mr. Chakravarty, appearing for the State, has laid down three propositions. His first contention is that whether or not Pokharia forest was a private protected forest is a question of fact and cannot be agitated for the first time in revision. In support of this contention he has cited a case reported in 'MAHADEO PRASAD v. EMPEROR', 27 Pat L T 112 at p. 137. The passage relied upon is the observation made by Shearer J:
"The existence of a law, or of a rule or order having the force of law, may in the last resort be a fact; but is it a fact which stands on precisely the same footing?" After some discussion, Shearer J. has observed :
"This is an aspect of the matter which as yet does not appear to have been considered and which, I think myself, ought to be considered at some future date."
So this is 'obiter' 'dictum'. This rule, however, can in no case apply to the present case, as the presumption of existence of a rule of law cannot apply to the publication of a certain fact according to the procedure laid down in a statute.
8. Next Mr. Chakravarty argued that, as the petitioner knew that Pokharia forest was a private protected forest, the conviction cannot be set aside in revision even if the notification has not been brought on the record. I think that the case referred to above decided by Rai J. in 'Cri Revn. No. 374 of 1951, D/-2-7-1951 (Pat) is a complete answer to this proposition. I hold that this point also has got no substance.
9. The third contention was that, even if in the trial Court or in the Court of appeal, the necessary copy of the publication in the gazette has not been placed on record, that may be taken in this Court during the hearing of the revision petition. He has cited two decisions, one reported in 'RAM SARAN v. EMPEROR', AIR (12) 1925 Lah 298 and the other reported in 'NANAK CHAND v. EMPEROR', AIR (18) 1931 Lah 273 in support of his contention. In the first case, Campbell, J. observed :
"The net result to be extracted from them is that knowledge by a printer of the nature of the matter printed is a question to be determined on the particular facts of a particular case."
And in that case he, on the basis of the circumstance disclosed on the record, came to the conclusion that the printer had the knowledge of the nature of the matter printed in a certain pamphlet which was on the record. I am afraid this proposition does not in the least apply to the facts of the present case, and perhaps this case has been cited in a desperate attempt to support the conviction. In the second case Abdul Qadir, J. has referred to the case of 'BAWA SARUP SINGH v. EMPEROR', AIR (12) 1935 Lah 299 where a copy of a Gazette Notification was produced before the High Court in a revision and the Court presumed the genuineness of the Gazette under Section 81. Evidence Act, and held the production of it in the High Court sufficient even if it had not been tendered in evidence before. Under Section 81 no doubt the High Court can presume the genuineness of the gazette; but the matter is not free from limitation. Even if the document is taken in evidence, the question will arise whether it can be used against the accused at that stage without giving him opportunity to meet it. If he is prejudiced as a result of the filing of the evidence at that stage. I think the document cannot be used against the accused, and it will be too hard against the accused to admit a document at a very late stage. In this case one of the necessary elements that has to be notified is the limit of the forest constituted as a protected forest. It has nowhere been proved by the prosecution that the tree cut falls within defined specified limits and that those limits are covered by the boundary given in the copy of the gazette proposed to be filed now in this Court during the hearing of this criminal revision. I hold that by accepting this gazette at this stage the petitioner will be adversely prejudiced. Therefore, I do not accede to the prayer of Mr. Chakravarty that the copy of the gazette should be taken in evidence at this stage.
10. Accordingly I hold that the prosecution has failed to proved the charge framed against the petitioner. The conviction and sentence passed against him are set aside.