Gola Ho and Others vs Emperor

Imam, J.—These two applications in revision have been heard together as the principal point of law involved has been the same, although the convictions arise out of two different trials in respect of two different incidents. In Criminal Revision No. 256 the petitioner Gola Ho is an employee of one Tarachand Agarwala. He was convicted for an offence u/s 26, Clause (g), Forest Act, read with Section 109, Penal Code. It is said that on 18th May 1944, about 4 P.M. Gola Ho was found along with others purchasing and collecting Kendu leaves from female labourers which the latter had removed from blocks II and V of Darkada and Padampur reserved forest of the Porahat division. These Kendu leaves totalled 3100 bundles, and they are used principally for the manufacture of biri. The female labourers made a statement as to how they came to be collecting these leaves. They were subsequently examined at the trial of Gola Ho and others, and from their evidence it transpired that they had done so at the instigation of Gola Ho.

In criminal Revision No. 258 there are four petitioners, namely, Tarachand Agarwala, Bholanath Mundari, Pandeu Mundari and Gonde Gulia. Tarachand Agarwala was sentenced to a fine of Rs. 200, in default to undergo rigorous imprisonment (for one and a half-month u/s 26(g), Forest Act, read with Section 109, Penal Code. The other petitioners were also sentenced to a fine of Rs. 200 each, in default to undergo rigorous imprisonment for one and a half-month u/s 26(g), Forest Act. It is said that these petitioners were found, on 19th May 1944, in the Janta reserved forest receiving Kendu leaves, which had been illegally collected from the reserved forest by female labourers. The female labourers on being questioned by the forest guards, who had found them there, stated that they were collecting leaves for the petitioner Tarachand Agarwala.

Mr. P.R. Das, who has argued Criminal Revision No. 258 of 1944 urged that there could not be any conviction of the petitioners u/s 26(g), Forest Act, having regard to the terms of Notification No. 4246-VIF-13-B, dated 23rd April 1936, published in the Bihar Gazette of 29th April 1936. He drew our attention to the words of Section 26, Forest Act, and pointed out that for an offence to be committed under Clause (g) of Sub-section (1) of Section 26 the act must be done in a reserved forest. Admittedly the forest from which the Kendu leaves were collected belonged to Thakur Lakshmi Narayan Singh Deo of Kera. Section 38, Forest Act, under which the above mentioned notification of the Government was issued, permits the Provincial Government by notification to apply to the land of a private owner the provisions of the Forest Act as it thinks suitable to the circumstances thereof and as may be desired by the applicant. Although the Provincial Government issued the said notification, it did not thereby constitute the forest lands in the schedule thereof a reserved forest. On the contrary, the Provincial Government indicated in para. 2 of the notification that it was pleased merely to declare its intention to constitute the said lands a reserved forest in pursuance of Section 4, Forest Act. Having declared their intention in this manner it followed that the procedure indicated in the various sections to be found after Section 4 had to be complied with, and it was only when the conditions mentioned in Section 20, Forest Act, had been fulfilled that the forest lands in question could become a reserved forest. It was, however, clear that the Grown had been unable to produce any notification of the Provincial Government published u/s 20 by which they declared the forest lands mentioned in the schedule of the notification of 23rd April 1936, to be reserved forest from a date fixed therein. It was only after such a notification that Sub-section (2) of Section 20 could come into operation. Sub-section (2) states "From the date so fixed such forest shall be deemed to be a reserved forest." Mr. Das, therefore, urged that there could be no conviction of the petitioners for having done any of the acts mentioned in Clause (g) of Sub-section (1) of Section 26, since the forest lands were not a reserved forest. It was further argued on behalf of the petitioners that para. 1 of the notification, dated 23rd April 1936, by which the Provincial Government under the provisions of Section 38, Forest Act, declared that they were pleased to apply to the forest lands all the provisions of the Forest Act which are applicable or may, hereafter be extended to apply to the reserved forests belonging to Government in the Singhbhum district, was merely an enabling provision. The argument therefore was that as the forest lands in question had not become a reserved forest, the act of the petitioners was not done in a reserved forest and consequently there was no breach of the provisions of Section 26, Forest Act.

It was further contended by Mr. Das that no one''s rights in property could be taken away without compensation. Such rights were preserved by the Government of India Act, 1935. Section 38, Forest Act, was therefore ultra vires as well as the notification of the Provincial Government dated 23rd April 1936 made in pursuance of Section 38 of the said Act.

In the application of Gola Ho it was further argued, that his conviction depended largely upon the testimony of accomplices, which at best was corroborated by another piece of tainted evidence. It was also pointed out that as these accomplices, namely, the female labourers had an opportunity of coming into contact with some of the co-accused of Gola. Ho, who made statements of a confessional nature when examined u/s 342, Criminal P.C., it could not be said that their evidence was corroborated by any independent evidence. I would quote in its entirety, barring the schedule, the words of the Government notification dated 23rd April 1936, by which they proposed to apply u/s 38, Forest Act, some of the provisions of that Act to the lands mentioned in the schedule:

It is hereby declared that in accordance with an application u/s 38, Forest Act, 1927 (16 [XVI] of 1927), made to the Deputy Commissioner of Singhbhum by Thakur Lakshmi Narayan Singh Deo of Kera, Kera Estate, police-station Chakradharpur, District Singhbhum, the Government of Bihar are pleased to apply to the forest lands described in the schedule below all the provisions of the said Forest Act which are applicable or may hereafter be extended to apply to the reserved forests belonging to Government in the Singhbhum District.

Government are further pleased in pursuance of Section 4 of the said Act, to declare their intention of constituting the said lands a reserved forest.

The Government are further pleased in exercise of the power conferred by the said Section 4 to appoint Babu Shiva Prasad Singh, Deputy Magistrate and Deputy Collector, to be Forest Settlement Officer to inquire into and determine the existence, nature and extent of any right alleged to exist in favour of any person in or over any of the said lands or in or over any forest produce to be found therein and deal with the same as provided by Chap. II of the said Act.

The Government are further pleased in exercise of the power conferred by Section 17 of the said Act, to appoint the Deputy Commissioner of Singhbhum to hear appeals referred to in that section.

Before I deal with this notification, I would deal generally with what I consider to be the scheme of the Forest Act. There can be no doubt that forests and afforestry are subjects of prime importance to the administration of a country, and in the need of public interest the Forest Act was enacted to preserve and safeguard forests generally in India. The Act makes various provisions for ~such conservation of forests, and in the scheme it provides for a Provincial Government to constitute any forest lands or waste lands, which are the property of Government or over which the Government have proprietary rights, a reserved forest. Chapter 2 of the Act, therefore, deals with the subject of reserved forests. Chapter 3 deals with village forests, chap. 4 deals with protected forests, and chap. 5 deals with forests and lands not being the property of Government. In this manner it seems to me the Act contemplated the protection of forest lands, under certain conditions, whether they be reserved forests, village forests, protected forests or forests of private owners. In order to make a forest a reserved forest a prescribed procedure enjoined by the various sections found in chap. 2 has to be complied with, and there can be no doubt that once those provisions have been complied with, then u/s 20 it is provided that

(1) When the following events have occurred, namely:

(a) the period fixed u/s 6 for preferring claims has elapsed, and all claims, if any, made under that section or Section 9 have been disposed of by the Forest Settlement Officer;

(b) if any such claims have been made, the period limited by Section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or Court; and

(c) all lands (if any) to be included in the proposed forest, which the Forest Settlement Officer, has u/s 11, elected to acquire under the Land Acquisition Act, 1894, have become vested in the Government u/s 16 of that Act, 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 declaring the same to be reserved from a date fixed by the notification.

(2) From the date so fixed such forest shall be deemed to be a reserved forest.

Section 21 then provides that

The forest officer shall, before the date fixed by such notification, cause a translation thereof into the local vernacular to be published in every town and village in the neighbourhood of the forest.

Now it seems to me that until the conditions mentioned in Section 20, Forest Act, have been fulfilled, a forest cannot be deemed to be a reserved forest. The Act does not define what is a "reserved forest," but I think that the words of Sub-section (2) of Section 20 make it perfectly clear that it is only from the date fixed by the notification mentioned in Sub-section (1) of that section that a forest shall be deemed to be a reserved forest. By the notification, dated 23rd April 1936, made u/s 38 of the Act the Provincial Government applied to the forest-lands mentioned in the schedule to that notification all the provisions of the Forest Act, which are applicable or may hereafter be extended to apply to the reserved forests belonging to Government in the Singhbhum District. It is to be noticed that the notification does not purport to apply all the provisions of the Forest Act. It has applied only those provisions of the Act which are applicable to the reserved forests of the Government in the District of Singhbhum, that is to say, such forests of Government in the District of Singhbhum as have become reserved forests. From the moment a forest has become a reserved forest, Sections 3 to 21 of chap. 2 of the Act can have no application to it. Hence the provisions of the Act which are applicable to reserved forests of Government in the District of Singhbhum are Sections 22 onwards of chap. II and other sections of the Act applicable to such forests.

The provisions of Chap. III regarding village forests may also be referred to in this connexion. Section 28 Sub-clause (1) permits a Provincial Government to assign to any village community rights of Government to or over any land which has been constituted a reserved forest. Sub-clause (2) of this section permits a Provincial Government to make rules for regulating the management of the village forests; and Sub-clause (3) provides that all the provisions of the Forest Act relating to reserved forests shall, so far as they are not inconsistent with the rules so made, apply to village forests. Obviously Clause (3) of Section 28 did not intend that the procedure indicated in Sections 4-21 of the Act should be gone through all over again. What was intended by this clause was that all the provisions of the Act relating to forests which have become reserved forests shall apply to village forests in so far as they are not inconsistent with the rules made under Clause (2) and thereby gave protection to the village forests in the same manner as that given to reserved forests. It is to be noticed that neither Section 28 nor Section 38 of the Act provides in express terms for any penalties and it is only by applying the provisions of the Act applicable to reserved forests that any protection can be given to village forests or forests belonging to private owners. There can be no doubt that Section 26 of the Act is applicable to reserved forests.

I do not think that para. 2 of the notification in any way affects the provisions of para. 1 of the notification. It is necessary to refer to Section 38 of the Act in this connexion. Section 38 provides:

(1) The owner of any land, if there be more than one owner thereof, the owners of shares therein amounting in the aggregate to at least two-thirds thereof may, with a view to the formation or conservation of forests thereon, represent in writing to the Collector their desire-

(a) that such land be managed on their behalf by the forest-officer as a reserved or a protected forest on such terms as may be mutually agreed upon; or

(b) that all or any of the provisions of this Act be applied to such land.

(2) In either case, the Provincial Government may, by notification in the Official Gazette apply to such land such provisions of this Act as it thinks suitable to the circumstances thereof and as may be desired by the applicants.

It is clear then that an owner may represent in writing to the Collector his desire that such land be managed on his behalf by the forest-officer as a reserved or a protected forest, or that all or any of the provisions of the Act be applied to such land. Sub-section (1) of Section 38 is merely a provision which enables an owner of any land to apply to the Collector in order that the provisions of the Act may be applied to his land, or that the land may be managed for him as a reserved forest. By Sub-section (2), however, the Provincial Government in either case may by notification apply to such land such provisions of the Act as it thinks suitable to the circumstances thereof and as may be desired by the applicant. We have not before us the actual representation made by Thakur Lakshmi Narayan Singh Deo of Kera under this section, but it seems to me that on a fair reading of the notification it is clear that the Provincial Government not only purported to apply at once certain provisions of the Act to the lands mentioned in the schedule but also declared their intention to constitute such lands a reserved forest presumably as requested by the Thakur. In my opinion, the wording of Sub-section (2) of Section 38 of the Act is wide enough to contemplate the action of the Provincial Government as indicated by their notification of 23rd April. The immediate effect of para. 1 of the notification was to apply to the lands mentioned in the schedule all the provisions of the Act which were applicable to the reserved forests of Government in the district of Singhbhum. In affording such protection the Provincial Government must have contemplated that claims of certain persons in these lands may thereby be affected, and it was thought desirable that the lands in question should be constituted a reserved forest in order that the various provisions of the Act may come into play in order to enable persons to lay their claims. For this reason I think para. 2 stated that the Government were further pleased in pursuance of Section 4 of the Act to declare their intention of constituting the said lands a reserved forest. The notification went on by paras. 3 and 4 to appoint certain persons to perform certain duties under the Act, such as to appoint the Deputy Commissioner of Singhbhum as the officer to hear appeals u/s 17 of the Act. I can find no real conflict between the words of para. 1 and paras. 2, 3 and 4 of the notification. I am, therefore, satisfied that the provisions of Section 26 of the Act, were applicable to the forest lands of Thakur Lakshmil Narayan Singh Deo of Kara.

As to the contention that Section 38, Forest Act, and the notification made thereunder dated 23rd April 1936 is ultra vires, it may be pointed out that Section 38 of the Act does not deprive any owner of any right in property. The section merely enables an owner to apply to the Collector for the management of his forest lands or to have applied to such lands all the provisions of the Act. The application of the owner u/s 38 of the Act is voluntary and a request for the management of his property or for the application of the provisions of the Act to his lands can hardly be said to be deprivation of his rights in such property. His rights in property remain and it is only the management of the property which is requested by him to be done by a forest-officer. Section 38 also enables the owner to represent to the Collector his desire that all or any of the provisions of the Act be applied to such land. Here again the owner by such representation in effect seeks protection and the benefits afforded by the Act. His right in the property still remains. u/s 202, Government of India Act, 1935, all the law in force in India immediately before the commencement of Part III, Government of India Act, 1935, shall continue in force until altered or repealed or amended by a competent Legislature. u/s 293, Government of India Act, 1935, it is permissible by Order in Council to make adoptions and modifications in the existing law as it appeared to His Majesty to be necessary or expedient for bringing the provisions of that law into accord with the provisions of the Government of India Act, 1935. The Forest Act was enacted in 1927 and by an Order in Council certain modifications were made therein, for instance, the words ''Provincial Government'' were substituted for the words ''Local Government.'' None of the petitioners have proved that they had any right in the forests and in Criminal Revision No. 256, Tarachand Agarwala asserted that the forest department had given him a lease of Kendu leaves recovered from the forest. There was no proof of this. Even on this assertion whatever rights he claimed, he claimed as a lessee of the forest department and not as a lessee of Thakur Lakshmi Narayan Singh Deo. In Criminal Revision No. 258 no attempt was made to prove that any of the petitioners had any rights in the forests which were affected by the action of the Provincial Government in issuing the notification dated 23rd April 1936 u/s 38 of the Act. I do not, therefore, think that there is any force in the argument that Section 38, Forest Act, is ultra vires of the Government of India Act, 1935.

In the application of Gola Ho although the two female labourers may be called accomplices in the strictest sense, the circumstances are that they were female labourers carrying out the behests of Gola Ho and his master Tarachand Agarwala. The Courts below believed their evidence, and I think there is substantial corroboration in the circumstance that Gola Ho and his companions were found within the forest area purchasing the leaves so collected. I do not think there would be any justification for interference with the conviction on that ground. I think, however, that his sentence is somewhat severe, and I would reduce it to a fine of Rs. 50 only, in default one month''s rigorous imprisonment.

In the case of Tarachand Agarwala and others in Criminal Revision No. 258, I would uphold the conviction and sentence of Tarachand Agarwala without any modification, but I would reduce the sentence of the other petitioners who appear to be merely his servants, to a fine of Rs. 50 each, in default one month''s rigorous imprisonment. The applications are dismissed with the above modifications.

Meredith, J.

I agree.