MATROO KHAN Vs. STATE

JUDGEMENT

(1.) MATRU Khan applicant has been convicted under Section 26 read with Section 5 of the Indian Forest Act and has been sentenced to a fine of Rs. 500/ -, in default 1 1/2 months' rigorous imprisonment. The appellate court also awarded a compensation to the Forest Department and directed the applicant to pay a sum of Rs. 2500/ -.

(2.) THE counsel for the applicant has raised two contentions before me, In the first place he contended that since no notification under Section 20 of the Indian Forest Act was passed in this case the tract of land from which the trees were cut away had not been declared to be a. reserved forest. In support of this contention he also drew my attention to the fact that the acts which are made penal in respect of the reserved forests are different from the acts which are made penal in respect of those forests about which only a notification under Section 4 of the Indian Forest Act has been issued. It seems that the State before it can declare any area as a reserved forest had to make two notifications. The first notification is to be issued under section 4, which may be described as a proposal for declaring a particular area as a reserved forest. After this notification is issued, claims are considered and decided and finally a second notification is issued under Section 20 when that area is finally notified as a reserved forest. It seems that unless an area is declared a notified reserved forest, the only penal provision that exists in the Indian Forest Act is contained in the first part of Section 26. This penal provision is as follows : "26. (1) Any person who : (a) makes any fresh clearing prohibited by Section 5, or (b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest; " The subsequent part of Section 26 deals with those acts which are prohibited in a reserved forest. This is admitted by the counsel for the State that no notification under Section 20 was issued in this case and only a notification under Section 4 was issued. I have, therefore, to see whether the conduct alleged against the applicant falls under sub -section (a) above, for obviously sub -section (b) has no relevance.

(3.) IN deciding this question it would be better to cite Section 5 of the Indian Forest Act. Section 5 runs as follows : "After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such light was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf," The contention of the counsel is that even if the allegation made by the prosecution is correct and the applicant cut away some trees from a portion of this area and only stumps were left behind, it does not come under the, words making a fresh clearing and, therefore, the penal provisions of section 26 cannot be applied to the conduct of the applicant. The counsel also drew my attention to the meaning of the word 'clearing' given in the Chambers Twentieth Century Dictionary. According to this Dictionary, 'clearing' has the following meanings : "1. The act of making clear : 2. a tract of land cleared of wood etc. for cultivation; 3. Method by which bankers exchange cheques and drafts, and arrange the differences;" The argument before me is that unless there is evidence to prove that the act of clearing was for the purpose of cultivation it cannot be said that the cutting away of some trees was an act of clearing. I have given full consideration to the argument advanced before me, but I am unable to accept it.