TAHSILDAR Vs. JODH SINGH

JUDGEMENT

(1.) We have heard learned Counsel for the appellants on this appeal and we find that there were numerous reasons why that petition of the respondents should have been allowed and the proceedings taken against them should have been quashed. The first point, which was taken before the learned Single Judge, was that Rule 12 of the Kumaun Panchayat Forest Rules conferring powers on the panchayat to impose a fine up to a limit of Rs. 5/- for each offence under the Forest Act was ultra vires the rule making powers of the Government which made these rules. learned Counsel appearing for the State drew our attention to the provisions of Section 6 of the Scheduled districts Act and urged that this rule conferring this powers was made in exercise of the State Government's powers to make orders under that section. That section did empower the Local Government to appoint officers to administer Civil and Criminal Justice and further to make order regulating the procedure of the officers so appointed but not so as to restrict the operation of any enactment for the time being in force in any if the scheduled districts. It appears to us very doubtful that the powers to appoint officers to administer criminal justice would include the power to vest in the panchayat the authority to impose a fine for a criminal offence. This is, however a point on which we think that we need not express any final opinion, and we may proceed on the basis that the rule conferring the power on the panchayats to impose a fine not exceeding Rs. 5/- for each offence may be valid.

(2.) It, however, appears that, even though that power may have been conferred on the panchayat, all that the panchayat could do was to take cognizance of an offense punishable tinder the Forest Act and then, on trial of the offence, to impose a fine not exceeding Rs. 5/- for each offence. Learned Counsel appearing for the appellants stated before us that in this case the panchayat had imposed fines on the respondents for offences falling under Section 26 of the Indian Forest Act, Section 26 of the Forest Act lays down a number of offences which are 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. The Indian Forest Act contemplates the trial of such an offence by a Magistrate having power to try such an offence under the Code of Criminal Procedure. Section 52 of the Forest Act specifically lays down the steps that have to be taken by a Forest Officer who may have seized any property. He has to make a report to the Magistrate. Section 54 confers power on the Magistrate to take certain measures for the arrest and trial of the offender. These sections make it clear that an offence under the Forest Act has to be tried by a Magistrate in accordance with the Code of Criminal Procedure. Section 65 contains a special provision empowering the District Magistrate or any Magistrate of the first class specially empowered in this behalf by the State; Government, to try an offence under this Act summarily. Consequently, to a trial of an offence under Section 26 of the Act, the provisions of the Code of Criminal Procedure are applicable. The Kumaun Panchayat Forest Rules merely confer on the panchayat power to impose a fine not exceeding Rs. 5/- for any such offence. At best that power can be construed a; giving jurisdiction to the panchayat to try an offence and to impose a fine not exceeding Rs. 5/-for each such offence but, in doing so, the panchayat has to function as a court of a Magistrate under the Code of Criminal Procedure, and to follow the procedure laid down In it. Learned Counsel is unable to show to us that any different procedure was laid down for the panchayats under Section 6(b) of the Scheduled Districts Act, nor was he able to point out any notification under Section 3(b) of the Scheduled Districts Act declaring that the Code of Criminal Procedure shall not apply to the scheduled districts. On the other hand, as we have said above, it is clear from the provisions of the Forest Act that even in areas in Scheduled Districts to which the Forest Act applies the provisions of the Code of Criminal Procedure are applicable. In this case, therefore, the panchayat convicting the respondents and imposing fines on them was bound to follow the procedure laid down by the Cods of Criminal Procedure. It, however, appears that no such procedure was followed. In fact, on the date of hearing none of the respondents was present and their convictions and sentences were recorded in their absence. The respondents pleaded that they were not given any notices of the date of hearing. On behalf of the Panchayat, which contested the writ petition before the learned Single Judge, an affidavit was filed by the Sarpanch, Bir Singh, wherein Bir Singh stated that notices were given to the respondents, but it is nowhere mentioned what were the contents of those notices. He has not stated that the respondents were called upon to appear as accused for trial of the of licences. All that the states is that notices were sent twice and then the panchayat held a meeting and imposed the fines when the respondents did not appear. This was clearly contrary to the provisions of the Code of Criminal Procedure. In fact, even if the Code, of Criminal Procedure had not been applicable, the imposition of fine in such circumstances would still be indefeasible as there was no compliance with the rules of natural justice required to j be observed even by quasi-judicial tribunals. Before the convictions were recorded the constituents of the offence had to be communicated to the respondents. The evidence against them had also to be brought to their notice. They had to be given the right of cross-examining the prosecution evidence and tendering their defence, in addition to giving their own statements. None of these requirements seems to have been observed and the panchayat proceeded in their absence which, in our opinion, it could not legally do. The panchayat was at least required to record full evidence on the basis of which it could hold that the commission of the defense by each of the respondents was proved. A certified copy of the register of proceedings of the panchayat shows that no procedure was adopted. All that was done was to take votes of panchas and to impose fines tin the various respondents without even taking into consideration the question whether the commission of the offence was proved or not proved. Thus in this case the fines imposed were illegal.

(3.) The proceedings register also shows that the amounts of fines imposed were not within the limits of the powar conferred on the panchayat under Rule 12 of the Kirmaun Panchayat Forest Rules. The list shows that each person was fined at the rate of Rs. 5/- for each gattha. A majority of those fined were fined at the rate of Rs. 5/-per gattha for 17 gatthas, some for 34 gatthas and some for 51 gatthas. The minimum amount of fine payable by any of these persons was Rs. 85/whereas the maximum amount payable was Rs. 255/-. The entire total amount payable by the persons who were fined, was in the region of Rs. 6,000/-. We have failed to understand how the panchayat was of the view that one gattha represented commission of one offence under Section 26 of the Forest Act. It does not even mention which clause of the forest Act was being relied upon by the panchayat, nor does the register show how this offence had been committed, Thus the Imposition of the fines was beyond the jurisdiction of the powers conferred on the panchayat.