Hari Lal vs State of H.P.

T.R. Handa, J.—The Petitioner herein has invoked the revisional jurisdiction of this Court u/s 397 of the Code of Criminal Procedure to seek the quashing of the order of his conviction and sentence for the offence u/s 33 of the Indian Forest Act, 1927, (hereinafter called �the Act�), as recorded by the Judicial Magistrate, Chopal, and maintained in appeal by the Addl. Sessions Judge, Shimla, vide his order dated 11th November, 1985.

The case against the Petitioner was that on or about 20-1-1982 he had illicitly cut two Deodar and one Kail trees in Government notified forest Kau compartment No. 9 without the requisite permission and thereby committed an offence punishable u/s 33 of the Act.

The Petitioner had denied having cut any tree from any protected forest. The courts below relying upon the prosecution evidence came to the conclusion that the Petitioner had cut the trees aforesaid from the forest in question and thus held him liable for conviction and sentence for the offence punishable u/s 33 of the Act.

After going through the record and hearing the learned Counsel for the Petitioner and the learned Asstt. Advocate General appearing for the State, I am of the firm view that not only the order of conviction and sentence as recorded against the Petitioner but the entire trial resulting in such order is vitiated in law and, therefore, cannot be sustained.

Section 33 of the Act for which the Petitioner stands convicted and sentenced reads:

(1) Any person who commits any of the following offences, namely:

(a) fells, girdles, lops, taps or burns any tree re served u/s 30, or strips off the bark or leaves from, or otherwise damages, any such tree;

(b) contrary to any prohibition u/s 30, quarries any stone, or burns any lime or charcoal, or collects, subject to any manufacturing process, or removes any forest-produce;

(c) contrary to any prohibition u/s 30, breaks up or clears for cultivation or any other purpose any land in any protected forest;

(d) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved u/s 30, whether standing, fallen or felled, or to any close portion of such forest;

(e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion;

(f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid;

(g) permits cattle to damage any such tree;

(h) infringes any rule made u/s 32, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

(2) whenever fire is caused wilfully or by gross negligence in a protected forest, the State Government may, notwithstanding that any penalty has been inflicted under this section, direct that in such forest or any portion thereof the exercise of any right of pasture or to forest-produce shall be suspended for such period as it thinks fit.

In the instant case, the prosecution obviously relied upon clause (a) of sub-section (1). As is apparent from the plain language of this clause in order to attract this provision the prosecution had to allege and prove that the trees in question had been reserved u/s 30 of the Act.

Section 30 is in the following terms:

The State Government may, by notification in the Official Gazette:

(a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification;

(b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient, any in a locality reasonably convenient, for the due exercise of the right suspended in the portion so closed; or

(c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to and manufacturing process, or removal of, any forest-produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.

Section 30 has to be read along with the next following Section 31 which reads:

The Collector shall cause a translation into the local vernacular of every notification issued u/s 30 to be affixed in a conspicuous place in every town and village in the neigh bour hood of the forest comprised in the notification.

The expression �protected forest� as used in subclause (c) of Section 30 has been defined in the earlier Section 29 which may also be extracted:

29(1) The State Government may, by notification in the Official Gazette, declare the provisions of this Chapter applicable to any forest-land or wasteland which is not included in a reserved forest but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled.

(2) The forest-land and waste-lands comprised in any such notification shall be called a �protected forest�.

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A combined reading of the provisions of Sections 29, 30, 31 and 33 of the Act, therefore, suggest that in order to bring home a charge, punishable u/s 33(l)(a)the prosecution must allege and prove that:

(i) the accused had felled, girdled, lopped, tapped or burnt any tree or stripped off the barks or leaves from or otherwise damaged any tree;

(ii) the tree forming subject matter of the offence was standing on any forest-land or waste-land which had been declared as protected forest by a notification validly issued u/s 29 of the Act;

(iii) the tree aforesaid had been declared as reserved under a notification issued by the State Government in accordance with the provisions of Section 30 of the Act; and

(iv) A translation into the local vernacular of the notification issued u/s 30 of the Act had been affixed in a conspicuous place in the town or village in the neighbourhood of the forest comprised in that notification.

All the four factors enumerated above are essential in order to constitute an offence punishable u/s 33(l)(a) of the Act.

Now in the instant case the complaint filed against the Petitioner is silent on the point if the trees alleged to have been cut by the Petitioner had been reserved u/s 30 of the Act and that the relevant provisions of Sections 29, 30 and 31 had been complied with. Even at the trial the prosecution failed to prove if the land from where the trees were cut had been declared as protected forest, that the trees had been reserved u/s 30 and that the translation into the local vernacular of the notification issued u/s 30 had been affixed in a conspicuous place in the village in the neighbourhood of the forest in question. In the absence of the allegations as aforesaid, no accusation u/s 33 could be stated to the Petitioner so as to justify his trial for that offence. For the same reason he could not be convicted and sentenced for that offence.

With these short observations I accept this petition and quash the order of conviction and sentence as recorded by the courts below against the petitioner.