Sitaram Jagatramka and Others vs The King

Mahabir Prasad, J.—The petitioners were tried by a Magistrate, First Class, Jamshedpur, and convicted for having contravened the provisions of Section 21, Bihar Private Forests Act and sentenced to pay a fine of Rs. 10 each, and in default to suffer simple imprisonment for s days each. They have also been directed to pay Rs. 6 as damage for the destruction caused by them u/s 12(3), Bihar Private Forests Act.

What is alleged against them by the prosecution is that they out and cleared the forest situated in village Ghosda and uprooted the stumps of the trees in that forest which by a notification u/s 14(c), Bihar Private Forests Act, was declared to be constituted as a private protected forest. It appears that a Notification No. 6353-VI-F-84, dated 8th July 1946 was issued by Government u/s 14(c) of the Act declaring that it was proposed to constitute such forest as mentioned therein as a private protected forest. The notification was published at the spot on 27th September 1946 by a beat of drum. A report was submitted by the forest guard on 7th November 1946 to the Forest Department stating that the petitioners were found uprooting the stumps and otherwise damaging the forest. On such report being submitted, a complaint was lodged by the Forest Department against these petitioners before the Sub-divisional Officer of Dhalbhum on 15th November 1946. The petitioners were summoned, tried and convicted as already stated. As the sentence passed was unappealable, an application was filed before the Sessions Judge by the petitioners for a reference to this Court. The learned Additional Sessions Judge refused to refer the case to this Court. Hence this application in revision.

This matter was originally placed before his Lordship the Chief Justice sitting singly who on account of the importance of the questions raised in the case ordered it to be placed before a Division Bench.

Petitioner 1 and petitioner 2 are directors of Messrs Pharat Sebai Grass Ltd., a company registered under the Indian Companies Act having its registered office at 71 Cross Street, Calcutta, and other petitioners are employees of this company. On 30th June 1946 this company took settlement of 329 bighas of lands from one Bhagat Chandra Adhikari and others with the rights to cut, clear and reclaim the aforesaid lands, the proprietors Adhikaris agreeing to execute a deed of lease subsequently. This agreement was contained in a note dated 30th June 1946. On 8th July 1916 Government notification u/s 14, Bihar Private Forests Act was issued. This notification provided that any landlords whose interest was likely to be affected by the declaration of the forest as private forest were to apply within three months from the date of the notification to the Deputy Commissioner of Singhbhum by an application in writing stating their objections to the said forest being constituted as a private protected forest. Simultaneously with this notification, there was also an order issued by the Provincial Government u/s 21, Bihar Private Forests Act prohibiting, subject to certain conditions and exceptions as specified in the order, the cutting, collection, and removal of any trees or any class of trees in the forest in respect of which the notification u/s 14 declaring that the forest was proposed to be constituted a private protected forest was being issued. The petitioners have been convicted and sentenced as stated above for having disobeyed this order of the Provincial Government. The notification u/s 14 and the order u/s 21 were proclaimed by a beat of drum on the spot on 27th September 1946. Rajni Kant Adhikari, one of the lessors of the petitioners'' company, lodged an objection before the Deputy Commissioner, Singhbhum, on 7th October 1946 against the lands being declared as a forest area and the Bihar Private Forests; Act being made applicable to them. He also informed the authorities that he had given the aforesaid lands in lease to the petitioners'' company, and that the petitioners'' company were cultivating them. It appears that under Sub-section (2) of Section 21, Bihar Private Forests Act the order contemplated in Sub-section (1) of the said section has to be published in the neighbourhood of the said-forest in the prescribed manner, that is to say, in the manner prescribed by the rules framed under the Act. It appears that the rules for publishing the orders passed u/s 21 of the Act were framed and published on 21st October 1946. There was no fresh publication of the order u/s 21 of the Act in accordance with the rules prescribing the manner of publication of such an order. On 7th November 1946 the present occurrence is alleged to have taken place. In the Bihar Gazette dated 17th July 1946 notification No. 6353.VI-F-84R, dated 8th July 1946 was published. A reference to the Gazette of the date publishing the notification shows that this notification was not authenticated in the manner specified in rules made by the Governor in that behalf, for, it does not bear at the end the usual signature of a Secretary under the endorsement ''''by order of the Governor of Bihar."

It has been contended on behalf of the petitioners by Mr. Baldeo Sahay that the order-under Section 21 of the Act for the disobedience of which the petitioners have been convicted was not published and could not be published in the-manner prescribed by the rules because on the date this order was passed and is alleged to have been published, rules prescribing the manner in which such orders had to be published were not framed. It will be seen that while it is alleged that this order was proclaimed by a beat of drum on 27th September 1946 rules prescribing the manner of their publication came to be framed on 2lst October 1946. Sub-section (2) of Section 21 lays down that "such order shall be published in the neighbourhood of the said forest in the prescribed manner." There being, therefore, no due publication u/s 21 of the Act in the circumstances of the present case, no one can be prosecuted for having disobeyed this order. This contention has great force. Sub-section (2) of Section 21 of the Act makes it imperative that the order shall be published in the prescribed manner. It will not do to publish it in any other manner than the one prescribed by the rules. So long as the rules prescribing the manner of publication were not framed, the orders u/s 21, even if issued, could not be published and made effective. Publication of this order by the beat of drum was not enough.

It has been argued by Mr. K.P. Varma on behalf of the Crown that there can be no doubt on the evidence in the case that the petitioners had the knowledge that the notification containing prohibition against cutting, collection and removal of any trees u/s 21 of the Act had been issued, and, therefore, it must be held that the publication of this order in the manner as stated by the peon who proclaimed it by the beat of drum was sufficient compliance of Sub-section (2) of Section 21 of the Act Reliance has been placed on a decision of this Court in the case of Prahlad Rai and Another Vs. Emperor, on behalf of the Crown in support of the proposition that what matters is the knowledge of the person concerned, and if that is proved, it is not necessary for the prosecution to prove that the order was published in the manner prescribed. It will be seen that in this case the accused were convicted for contravening the order of the Sub-divisional Magistrate made under Rule 81(2)(b), Defence of India Rules prescribing the sale of certain commodities above a certain rate. The prosecution offered no direct evidence of the method of publication or of the method prescribed by the Sub-divisional Magistrate for publication of his order as required by Rule 119, Defence of India Rules. It will be remembered that Rule 119, Defence of India Rules, laid down that the authority making the order under the Defence of India Rules was to indicate the manner in which the order made by them was to be published. The question that arose in that case was whether on the facts proved in that case, it could be held that the authority making the order had determined the manner in which the notice under the order was to be published, and that the order had been so published before the alleged offence had been committed by the accused. It was held that from the finding in the case that the accused issued a cash memo wrongly showing that the prices that they had charged were the prices prescribed by the Sub divisional Magistrate, it was clearly inferable that they not only knew that the Sub-divisional Magistrate had made an order fixing the prices of various commodities at certain rates but that knowledge of that order had been brought to the notice of the accused in the manner contemplated by the Sub-divisional Magistrate. In the present case from the finding that the petitioners had know-ledge of the order issued u/s 21 of the Act, it cannot be inferred, that this order was published in the manner prescribed by the rules which came to be framed long after the alleged publication. This case, therefore, does not help the prosecution. In a number of cases where prosecutions were launched for disobedience of orders made under Rule 81(4), Defence of India Rules, the accused were held not to have committed the offence if the prosecution failed to prove that the competent authority had determined the manner in which a notice of the order was to be published, and that the order had been so published before the alleged offence had been committed by the accused. The case of Jagarnath Sah Vs. Emperor, may be cited as an instance. It is clear that in the present case the Provincial Government had not determined the manner in which the order u/s 21 had to be published, and there is no evidence that when the rules prescribing the manner of the publication of the order came to be framed on 21st October 1946 the order u/s 21 of the Act was republished in the manner prescribed in the rules before the alleged offence was committed. There is, therefore, no escape from the conclusion that the conviction of the petitioners for having contravened the order in question is bad in law and cannot stand.

Mr. Baldeo Sahay on behalf of the petitioners raised other contentions also. He argued that there has been no contravention of Section 21, Bihar Private Forests Act, 1946, inasmuch as the aforesaid notification provided exception in favour of landlords from cutting the trees and the petitioners'' company being lessees and land, lords were entitled to cut the trees for making the land fit for cultivation. Their act of clearing the lands for the purpose of cultivation and of digging the roots of trees would clearly come within exception 10 of the said notification. He also raised the contention that the notification containing orders of the Government under Sections 14 and 21 of the Act, dated 8th July 1946 was inoperative as it was not duly authenticated in the manner required by Section 59, Government of India Act, and no conviction for disobedience of such an order of the Provincial Government can be had. As the first contention raised by him succeeds, it is unnecessary to deal with the other contentions.

In the result, the conviction of the petitioners and the sentence passed against them are set aside, and the fines, if paid, are ordered to be refunded. The rule is made absolute.

Sinha, J.

I agree.