GOLA HO Vs. EMPEROR

JUDGEMENT

(1.) These two applications in revision have been heard together as the principal point of law involved has been the same, although the convictions arise out of two different trials in respect of two different incidents. In Criminal Revision No. 256 the petitioner Gola Ho is an employee of one Tarachand Agarwala. He was convicted for an offence under Section 26, Clause (g), Forest Act, read with Section 109, Indian Penal Code. It is said that on 18 May 1944, about 4 P.M. Gola Ho was found along with others purchasing and collecting Kendu leaves from female labourers which the latter had removed from blocks II and V of Darkada and Padampur reserved forest of the Porahat division. These Kendu leaves totalled 3100 bundles, and they are used principally for the manufacture of biri. The female labourers made a statement as to how they came to be collecting these leaves. They were subsequently examined at the trial of Gola Ho and others, and from their evidence it transpired that they had done so at the instigation of Gola Ho.

(2.) In criminal Revision No. 258 there are four petitioners, namely, Tarachand Agarwala, Bholanath Mundari, Pandeu Mundari and Gonde Gulia. Tarachand Agarwala was sentenced to a fine of Rs. 200, in default to undergo rigorous imprisonment (for one and a half-month under Section 26(g), Forest Act, read with Section 109, Indian Penal Code. The other petitioners were also sentenced to a fine of Rs. 200 each, in default to undergo rigorous imprisonment for one and a half- month under Section 26(g), Forest Act. It is said that these petitioners were found, on 19 May 1944, in the Janta reserved forest receiving Kendu leaves, which had been illegally collected from the reserved forest by female labourers. The female labourers on being questioned by the forest guards, who had found them there, stated that they were collecting leaves for the petitioner Tarachand Agarwala.

(3.) Mr. P.R. Das, who has argued Criminal Revision No. 258 of 1944 urged that there could not be any conviction of the petitioners under Section 26(g), Forest Act, having regard to the terms of Notification No. 4246-VIF-13-B, dated 23rd April 1936, published in the Bihar Gazette of 29 April 1936. He drew our attention to the words of Section 26, Forest Act, and pointed out that for an offence to be committed under Clause (g) of Sub-section (1) of Section 26 the act must be done in a reserved forest. Admittedly the forest from which the Kendu leaves were collected belonged to Thakur Lakshmi Narayan Singh Deo of Kera. Section 38, Forest Act, under which the above mentioned notification of the Government was issued, permits the Provincial Government by notification to apply to the land of a private owner the provisions of the Forest Act as it thinks suitable to the circumstances thereof and as may be desired by the applicant. Although the Provincial Government issued the said notification, it did not thereby constitute the forest lands in the schedule thereof a reserved forest. On the contrary, the Provincial Government indicated in para. 2 of the notification that it was pleased merely to declare its intention to constitute the said lands a reserved forest in pursuance of Section 4, Forest Act. Having declared their intention in this manner it followed that the procedure indicated in the various sections to be found after Section 4 had to be complied with, and it was only when the conditions mentioned in Section 20, Forest Act, had been fulfilled that the forest lands in question could become a reserved forest. It was, however, clear that the Grown had been unable to produce any notification of the Provincial Government published under Section 20 by which they declared the forest lands mentioned in the schedule of the notification of 23 April 1936, to be reserved forest from a date fixed therein. It was only after such a notification that Sub-section (2) of Section 20 could come into operation. Sub-section (2) states "From the date so fixed such forest shall be deemed to be a reserved forest." Mr. Das, therefore, urged that there could be no conviction of the petitioners for having done any of the acts mentioned in Clause (g) of Sub-section (1) of Section 26, since the forest lands were not a reserved forest. It was further argued on behalf of the petitioners that para. 1 of the notification, dated 23 April 1936, by which the Provincial Government under the provisions of Section 38, Forest Act, declared that they were pleased to apply to the forest lands all the provisions of the Forest Act which are applicable or may, hereafter be extended to apply to the reserved forests belonging to Government in the Singhbhum district, was merely an enabling provision. The argument therefore was that as the forest lands in question had not become a reserved forest, the act of the petitioners was not done in a reserved forest and consequently there was no breach of the provisions of Section 26, Forest Act.