Karuppaih vs State

David Annoussamy, J.—This revision petition is by the accused against the conviction and sentence. As per the judgment of the trial court confirmed by the appellate court, the accused stands convicted for an offence under Ss. 26(c), 8, 15, and 2, 3(1) ''A'' Of the Tamil Nadu Forest Act, 1882 and sentenced to undergo R.I. for one year and also to pay a fine of Rs. 3000, in default to undergo 3 months R.I.

Both parties were heard. The learned Public Prosecutor would concede that the act committed by the accused, namely, collecting 15 teak logs in the reserve land of the forest department constitutes an offence punishable under S. 28(A) of the Tamil Nadu Forest Act, 1882, read with R.8 of the General Rules for the Management of Reserved and Unreserved Lands, 1948.

From the records, it appears that the complaint was filed by the Forest Officer under Ss. 26 ''c� 8 and 15 of the Tamil Nadu Act 5 of 1882, and Schedule Timber Act and S. 2(3)(1)(A) of the Tamil Nadu Forest Amendment Act 1979 (Act 43 of 1979).

It is stated by the learned Public Prosecutor that there is no Act called as Schedule Timber Act and that the provisions of. S. 2(3)(1)(A) of the Tamil Nadu Forest Amendment Act 1979 are meant to be incorporated respectively in S. 2 and S. 21 of the Original Act.

The trial court has not framed any charge against the accused nor recorded his plea. Instead, it has examined the accused generally quoting the Ss. 26(c), 8 and 15 of the Tamil Forest Act, 1882, and the Schedule Timber Act (which is not existing) and the provisions Of S. 2(3)(1)(A) of the Tamil Nadu Forest Amendment Act, 1979 and recorded the examination as per the provisions of S. 281 Crl.P.C. In a case instituted on a private complaint, otherwise than on a police report, as {he present one, there is no provision for examining the accused before framing the charge. Such examination is contemplated in S. 240 Crl.P.C., only in respect of a case instituted on a police report. Even in such a case, examination is not to be done in all cases. It has to be resorted to only in exceptional case when the Magistrate finds it necessary and useful for a proper trial. The charge should have been framed under S. 246, Crl.P.C. No such charge has been framed taking into account the nature of the offence alleged and after determining as accurately as possible the section of law under which it is punishable. The learned Magistrate has totally failed in his duty in properly framing the charges in this case.

The appellate court also has, not adverted its mind to the proper provisions of law and has confirmed the conviction and, sentence as imposed by the trial court.

The learned Public Prosecutor would, contend that though proper provisions of law have not been quoted, the conviction is not vitiated and that it could be confirmed as per S. 464, Crl.P.C. That section could be pressed into service only when, there has been, ho failure of justice. But in this case the sections quoted are so different from the one under which the accused would have been, legally punishable as it was impossible for the accused to know exactly for what kind of offence he stood charged,. In fact, a reading of the appellate court''s judgment shows that that court has gone into the provisions of, S. 26(c) of the Tamil Nadu Forest Act in order, to come to the conclusion that the accused was guilty. This is a clear case where injustice has occasioned to the accused by the mistake committed by the Forest Officer complaining before the court and by the Magistrate frying the case without properly framing the charge.

In the result, the criminal revision case is allowed and the convictions and sentences are set aside. The matter is remitted back; to the trial court for a de novo trial after framing the charge properly taking into account the facts alleged against the accused in the complaint of the Forest Officer, after giving Opportunity to both parties. The trial should be conducted expeditiously. The fine, if paid, shall be refunded to the accused if the trial is not completed within a period of three months from the date of receipt of the records.