STATE OF UTTAR PRADESH Vs. SABIR ALI

JUDGEMENT

(1.) This is an appeal by certificate granted by the High Court of Allahabad (Lucknow Bench) against its order dated March 12, 1962 quashing the trial of the respondents for an offence under S. 15(1) of the Uttar Pradesh Private Forests Act (VI of 1949). This trial commenced on February 11, 1959, on a complaint by the District Magistrate, Baharaich. The charge against the first respondent was that the sold one tamarind tree to respondent No. 2 for the purpose of feeling and removing it without obtaining permission from the competent authority and that against respondent No. 2 was that he felled the tree and removed it. The complaint was transferred from one Magistrate to another till it came on the file of Mr. T. B. Upadhaya who was a Magistrate of the Second Class. After Mr. Upadhaya had recorded all the evidence and examined the two respondents the powers of Magistrate, First class were conferred on him. Thereafter he pronounced judgment in the case and finding respondents guilty he sentenced them to pay a fine of Rs. 50/- each or to undergo simple imprisonment for one month. The respondents filed an appeal before the Additional Sessions Judge, Baharaich which was later converted into a revision. The learned Additional Sessions Judge made a reference to the High Court recommending that the trial before the Magistrate, First Class be quashed as he had no jurisdiction to try the offence. This reference was heard by Mulla, J., who did not agree with the opinion of Beg, J. in Jaddu v. State, AIR 1952 All 873 on which the Additional Sessions Judge had relied. Beg J., had taken the same view in a subsequent case also - Harbans Singh v. State, AIR 1953 All 179. Mulla, J. was of the opinion that the trial was proper, but as these rulings stood in his way, he made a reference of the case to a larger Bench. The case was heard by a Division Bench consisting of B. N. Nigam and S. D. Singh, JJ. The learned Judges differed amongst themselves:Mr. Justice Nigam was of the view that the trial was valid but Mr. Justice Singh did not agree with him. The case was then placed before Mr. Justice Verma who agreed with Mr. Justice Singh. As a result, the conviction and sentence passed on the respondents were set aside. The case was, however, certified by the High Court as fit for appeal and the present appeal has been filed.

(2.) Which of the two views is the right one is the short question in this appeal. Section 15(2) of the Uttar Pradesh Private Forests Act confers jurisdiction to try offences under the first sub-section on Magistrates of the Second and the Third Class. The trial in the present case was by a Magistrate of the First Class, and if there was no jurisdiction in him to try the offence then the proceedings were rightly declared void under S. 530(p) of the Code of the Criminal Procedure. According to the opinion of Mr. Justice Nigam which finds support from the order of reference made by Mullah. J., there is nothing to prevent the First Class Magistrate from trying an offence under S. 15(1) of the Act, because under Schedule III of the Code of Criminal Procedure the ordinary powers of a Magistrate, First Class include the ordinary powers of a Magistrate of the Second Class. According to the other view, the Forests Act confers jurisdiction on Magistrates of the Second and the Third Class and this excludes jurisdiction of any superior Magistrate.

(3.) Section 15 of the Forests Act reads as follows: