Chandrasen Bag and Others vs State of Orissa

A. Pasayat, J.—The petitioners call in question legality of the order passed by the learned Additional Sessions Judge, Jeypore, confirming the conviction and sentence awarded by the learned Judicial Magistrate, first class, Bissam cuttack convicting the petitioners u/s 37 (1) (c) of the Orissa Forest Act, 1972 (in short, the''Act'') and sentencing them to undergo rigorous imprisonment for two months and to pay a fine of Rs. 500/-, in default to undergo a further period of rigorous imprisonment for one month.

The prosecution case which led to the trial of the petitioners is that on 3-9-1984 they were found felling the trees at Khuntabadi unreserved forest by means of saw and cutting the logs. They did not have any permit for doing so. The saw and the wood were seized in presence of the witnesses. After obtaining sanction, prosecution report was submitted Under Section, 37 (1) (c) of the Act, The petitioners faced trial.

Their plea in essence was two fold, (i) They being labourers engaged by Durjya Bhatra the question of their being guilty of offence Under Section37(1)(c) did not arise, (ii) further in order to attract culpability u/s 37 (1) (c) it has to be established that any protected forest was affected by the acts of the petitioners. The plea did not find acceptance by the Courts below.

Mr. S. C. Samantaray, learned counsel for the petitioners, submits that in order to attract culpability u/s 37 (1) (c) it has to be established that the area in question was declared to be protected forest. In the absence of any such notification being brought on record accusations for contravention of Section 37 (1) (c) cannot be maintained. The learned counsel for the State, however, submitted that the judgment is in order and needs no interference.

In order to appreciate the submissions made by the learned counsel for the parties, it is relevant to refer to Section 37 (1) (c) of the Act which reads as follows :

"37. Penalties for acts in contravention of notification u/s 34 or of Rules u/s 36.-(1) Any person who-

(a)..................

(b)..................

(c) contraty to any prohibition u/s 34 breaks up or clears for cultivation or any other purpose any land in any protected forests or cultivate or attempts to cultivate anysuch land in any manner: "

Apparently in order to have operation of Section 37 (1) (c) there has to be prohibition in terms of Section 34. The said section deals with powers to issue notification reserving trees, etc. It is also apparent that Section 37 (1) (c) relates only to protected forest. What is prohibited in terms of Section 37 (1) (c) is breaking up or dealing for cultivation or any other purpose any land in any protected forest or cultivating or attempting to cultivate any such \\and in any manner. Section 33 deals with protected forest. The said section prescribes that by notification the State Government may declare the provisions of Chapter IV to be applicable to any land which is not included in a reserved forest, but which is the property of Government or over which the Government have proprietary rights. Therefore, in order to be declared a protected forest the land has to be one which is not included in a reserved forest. Therefore, in the case of unreserved forest a notification to declare the provisions of Chapter IV applicable has to be issued, in terms of Section 34.

A conjoint reading of the provisions makes it clear that the land in respect of which the notification is to be issued is unreserved forest. The Courts below have proceeded on the footing that since the land was unreserved forest no notification was necessary. The conclu- sion is indefensible. It is accepted that no notification was brought on record to show any declaration that the land where the alleged act was committed was a protected forest. In that view of the matter, the conviction as made and the sentence as awarded cannot be maintained.

The revision application succeeds. The bail-bonds of the petitioners be discharged.