Iswar Panda vs Emperor

Macpherson, J.—This rule has been issued to consider the conviction by the Sub-divisional Magistrate of Dhalbhum of the petitioner Ishwar Panda on a charge of abetment of theft and the fine of Rs. 50 imposed upon him u/s 379 read with Section 109, I.P.C.

On 28th January last the petitioner who is the am-mukhtar of Gobinda Panigrahi, a raiyat of village Kokpara within the Dhalbhum estate, as such directed some men to proceed to Murakatti jungle in that estate with four carts to out and bring firewood for his master. They had loaded the carts with small jamun wood suitable only for fuel and of a value estimated and perhaps overestimated at Rs. 4, and were about to remove the firewood when they were challenged and arrested by the forest staff of the proprietor. The petitioner and Gobinda were placed on trial for abetment of theft of the firewood from jungle in possession of the proprietor (local Raja) of the Dhalbhum estate but Gobinda being paralyzed was acquitted while the petitioner was convicted and sentenced as already stated.

The prosecution case was simply that even firewood could not be taken by the petitioner''s master without a pass or permit issued by the estate.

The defence was that the petitioner was entitled under his master''s customary rights as a raiyat of the estate to send men "to cut and appropriate wood for domestic purposes." In more detail the defence was first, that there is a customary right in favour of raiyats of the Dhalbhum estate to take from the jungle of the estate, irrespective of whether it is within the ambit of the village wherein the raiyati holding is, forest produce for bona fide domestic and agricultural use; secondly in addition that in view of the fact that he has been paying jungle kar steadily for over 30 years at the rate of six pies per rupee of recorded rent, as entered also in his settlement khatian, the raiyat has a right to take forest produce; and thirdly that at any rate in view of the fact that Gobinda Panigrahi had actually paid the jungle kar up to the end of 1336 F (September 1.929) his claim to take such forest produce in January 1930 in accordance with the practice of many previous years was bona fide, and in any event could palpably not be designated a mere pretence as would be necessary to support a conviction for theft.

The learned Magistrate has chiefly, if not wholly, considered the question of right to take the firewood without a permit and has held mainly on his interpretation of a letter of 1914 from Mr. John Reid, (Director of Land Records who, as Assistant Settlement Officer, had been in charge of the preparation of the Record-of-Rights in Pargana Dhalbhum and wrote the Final Report thereof), that tenants of the estate could not enter "the bahar jungle" except on terms (which he concedes must be reasonable) laid down by the landlord, and in particular that the proprietor was competent to insist on a permit being first taken, and that the remedy of the tenants if the terms of the permit were unfair was not to take jungle produce without one but to "petition for a review of their recorded rights and the management of the estate" (sic). On this view he declined to consider the papers and rent receipts filed by the defence.

To my mind the learned Subdivisional Magistrate entirely failed to appreciate the points for adjudication in a charge of theft in particular; he failed to observe that the question of right besides being an extremely intricate one and hardly proper for a criminal trial was by no means the only and perhaps not even the most important question for determination. And further to put it mildly there is room for doubt whether this finding even on the question of right is correct.

The question of the right of a raiyat of the Dhalbhum estate to take firewood from a jungle outside the boundaries of the village in which he has his holding is a most vexed one. The decision in Criminal Revisions No. 191 of 1926 (Iswar Behera petitioners) and No. 192 of 1926(2) (Nanda Kumar petitioners) is of no assistance in this regard. There the petitioners were rightly convicted of theft because their, claim to cut and carry away large quantities of sal logs as well as similar logs of paras was clearly not bona fide but a mere pretence, there being omnium conseno customary right nor even a bona fide claim of right on the part of raiyats to extract from the jungle great sal logs such as are not utilized for agricultural or house building purposes by ordinary raiyats in Dhalbhum. The history of the dispute between proprietor and raiyats is well known. A raiyat is admittedly entitled to take from the jungle of his own village without any payment forest produce for bona fide domestic and agricultural requirements. The raiyats also claim an immemorial customary right to take for the same purposes free of charge from other jungle of the estate. There was a proclamation in 1843 by Chittreswar Dhal whereby the headmen and raiyats were permitted to take on the score of reward, "wood khar leaves and wood for preparing houses, sagars, ploughs, yokes etc." from the jungles of the estate in perpetuity free of payment, this being in all probability of confirmation of previously existing rights. In spite of the inability of the petitioners in the revision cases already mentioned to prove this proclamation at their trial no one who has had wide experience of Singhbhum during the last quarter of a century could possibly doubt that the proclamation was made and that the record of it is authentic. But in 1893 when the Dhalbhum estate was under management as an "encumbered estate" the manager while admitting

the acknowledged rights of the raiyats to a free supply of wood for their domestic purposes

proposed that fees should be levied from raiyats who had no jungle within their villages for the exercise of their rights to take wood from jungles situated in adjoining villages. In 1897 a levy of six pies per rupee of rent from raiyats with no "buffer jungles" in their villages was sanctioned by the Local Government officials. This was in keeping with the practice of agents of the management of an encumbered estate in many other instances, the executive orders of a manager being accepted by the ignorant raiyats as authoritative decisions of Government which it was hopeless to contest. Twenty-five years ago Satrugham Dhal, the late proprietor leased the Dhalbhum estate to the Midnapur Zamindari Company whereupon Government directed the preparation of a Record-of-Rights which was made in 1906 to 1911. In the khatian of raiyats who as in Kokpara have no jungle in their own village adequate for their requirements the entry is made in the remarks column that forest produce is taken on payment of the jungle kar of six pies in the rupee. As has already bean said payment has been duly made of this kar by Gobinda Panigrahi as by others up to the end of the last fasli year. Formerly the junglekar was collected with the rent but a few years ago owing to difficulties under the rent law in connexion with sale of a holding in execution of a decree for rant and jungle kar together it has been collected separately by the Midnapur Zamindari Company. In their case permits were not regularly or perhaps at all required before forest produce for domestic use should be taken but in any event permits given merely with the view of conservation of forest would not have any effect on the honesty of the intention of the raiyat. The fact is that the settlement authorities did not really decide the question of right as between zamindar and raiyats as to the right of the latter to satisfy their bona fide domestic and agricultural requirements from the bahar jungle of villages other than their own but evaded it by merely recording the existing position.

Reliance is indeed placed on the opinion of Mr. John Reid already referred to. But in the first place his letter itself shows in the last paragraph that no inference adverse to the raiyats'' claim can be drawn from the entry in the Record-of-Rights. Mr. Reid''s opinion is that the substantive rights to jungle produce were ordinarily confined to the raiyat''s own village but that in point of fact

raiyats of other villages in which there is no jungle do frequently take forest produce from neighbouring jungle appertaining to other villages on payment of a fee; but this is a matter of agreement or contract between them and their landlords. The latter have, I think, the right to cancel the contract.

Now it would be entirely unsafe to act upon a personal opinion of the Director of Land Records even if it were not a hesitating one. It is certainly open to argument that even if the raiyats had not an immemorial customary right to satisfy their requirements of jungle produce from any Jungle in the estate and even if Chittreswar Dhal''s gift of "free rights" is not now binding, yet the realization and payment of the jungle kar at six pies in the rupee of rent which has been effective for over 30 years, was a compromise in perpetuity settling the dispute on the point which had arisen in spite of the Manager''s admission of 1893. It would not be easy to reject this contention, but even if it eventually failed, it would be extremely difficult to hold that when jungle kar on the rent of raiyats was in vogue for a generation, a raiyat acted dishonestly and not in pursuance of a bona fide claim of right when in accordance with practice he entered the jungle of the estate outside his own village in order to take from it firewood only. And there are even further grounds which make it impossible that the claim of the petitioner could be regarded as a mere pretence. The present proprietor took over from the Midnapur Zamindari Co., only from 1st September last. There is nothing to show that even if he had a right to cancel the previous practice, he either did so or gave notice thereof to the raiyats of the estate and in particular to the petitioner. Here I would guard against any appearance of implying an opinion and still more of deciding that such notice would operate to entail or to enhance liability civil or criminal on the part of the petitioner. The petitioner took forest produce in the time-honoured manner without permit within four months of 1st September; he did so openly and not stealthily; and clearly the petitioner''s master was also prepared to pay the jungle kar as usual and that too even if it is not a valid imposition. In my opinion there is not a trace of dishonest intention to bring the petitioner within the purview of the definition of theft in Section 378, I.P.C. Prosecutions for theft of raiyats of the Dhalbhum estate are entirely inappropriate in circumstances like the present and until it has been definitely held in a duly constituted civil proceeding, in which the interests of raiyats are properly represented, that the claim based on immemorial custom, the proclamation of Chittreswar Dhal and the long-continued payment of jungle cess (one or more of these) is unfounded. Such prosecutions are purely oppressive. In particular consideration of the expediency of preserving jungle is not only irrelevant to a charge of theft but is nearly always a factor tending to judicial error and it must be strenuously resisted in the criminal Court. That is of course not to say that prosecutions such as occurred in Criminal Revisions Nos. 191 and 192 of 1926 are not sound. There the case was one of depredation on a mere pretence of right by taking timber of a size which could not possibly come within the purview of the custom, the proclamation or rights connoted by the junglekar. Those were manifestly instances of criminal liability deserving serious punishment, whereas in this instance there is no trace whatever of criminality. The conviction being entirely unsound, this rule is made absolute. The conviction and sentence are set aside and the fine, if paid, will be refunded.