BHAGWAN SAHAI Vs. DIVISIONAL FOREST OFFICER, HAZARIBAGH

JUDGEMENT

(1.) The two petitioners are father and son. Petitioner No. 1 is an employee of the Dhanwar Estate. The two petitioners have been found guilty under Section 379, Indian Penal Code, and have been sentenced to a fine of Rs. 200 each or in default rigorous imprisonment for four months each. The case against these two petitioners was that they had cut and removed timber from a jungle known as Artoka jungle within the jurisdiction of Bengabad Police-station. It is necessary to state some facts in order to appreciate the points which have been raised on behalf of the petitioners. Artoka jungle is owned by the Dhanwar Estate of which petitioner No. 1 is an employee. It appears that the proprietor of the Dhanwar Estate made an application under Section 38, Forest Act, and as a result of his application the Provincial Government issued a notification No. 377-VIF-15/44 E.T., dated 8-9-1944 which was published in the Bihar Gazette on 13-9-1944. This notification declared the intention of Government to constitute the said jungle as a reserved forest. Paragraph 2 of the notification contained the declaration which purported to be in pursuance of Section 4, Forest Act. Soon after the issue of the said notification the petitioners cut and removed some timber from the jungle in question. Certain forest guards noticed the act of removal and on being questioned the petitioners said that the timber was required for the purpose of repairing the bhandar house of the proprietor of the Dhanwar Estate. Thereafter, an enquiry was made and the case against the petitioners was started with the result stated above.

(2.) That the petitioners removed some timber from the jungle in question has not been disputed before me. Learned Counsel for the petitioners has raised several points before me, the most important one of which is that the Courts below have gone wrong in their finding as to the "dishonesty" of the petitioners. The Court of appeal below has come to the finding that the petitioners removed the timber for their own benefit and not for the use of the proprietor of the Dhanwar Estate. Learned Counsel for the petitioners has contended before me that this finding is against the evidence on the record. He has referred me to the evidence of prosecution witness No. 2, which evidence shows that some timber was required for the building of the house of the proprietor of the Dhanwar Estate. The petitioners stated at the very beginning, as soon as the removal was noticed, that they were taking the timber for the use of the proprietor of the Dhanwar Estate. In the circumstances it seems to me that the prosecution has failed to prove that the petitioners were acting dishonestly within the meaning of the Indian Penal Code when they were removing the timber for the use of the proprietor of the Dhanwar Estate. A question has been raised before me if the onus on this point is on the prosecution or on the defence. The learned Government Advocate has contended before me that it was for the petitioners to prove that they had acted under the orders of the proprietor of the Dhanwar Estate and that the timber was required for the repair of the bhandar house of the proprietor. I am of the view that "dishonesty" being an essential ingredient of the offence of theft, it was initially for the prosecution to prove that the petitioners had acted dishonestly so as to come within the mischief of the offence of theft. This the prosecution has failed to do.

(3.) There has been a further question before me as to whether the jungle in question became a reserved forest and came into the possession of Government as soon as the notification in question was issued. This question is of some nicety and not entirely free from difficulty. Under Section 38, Forest Act, the Provincial Government may by notification apply to such land, for which an application has been made under Sub-section (1) of the section, such provisions of the Act as it thinks suitable to the circumstances thereof and as may be desired by the applicants. The notification which was issued in the present case states that all the provisions of the Forest Act, which are applicable or may be hereafter extended to apply to reserved forests belonging; to Government, shall apply to jungle in question. The provisions relating to reserved forests are contained in chap. II of the Act. Those provisions show that in order to constitute a reserved forest a particular procedure has to be followed; first, a notification Under Section 4 has to be issued declaring that it has been decided to constitute a particular piece of land as a reserved forest. Then there is a further proclamation under Section 6 of the Act which is followed by an enquiry by the Forest Settlement Officer. After the conclusion of the enquiry there is a notification under Section 20 of the Act declaring a particular forest as a reserved forest. Learned Counsel for the petitioners has contended before me that unless and until a notification under Section 20 of the Act has been issued, the jungle in question does not become a reserved forest and the forest in question does not come into the possession of Government. As I have stated before, the point is of some nicety and not entirely free from difficulty. In view of my finding that the prosecution has failed to prove that the petitioners were acting dishonestly when they removed the timber, it is unnecessary to come to any decision on this other question as to whether the Artoka jungle became a reserved forest on the issue of the notification under Section 4, Forest Act. I am inclined to think that it is only on the issue of a, notification under Section 20, Forest Act, that a particular forest becomes a reserved forest as contemplated by the Forest Act. On the issue of the notification under Section 4, Forest Act, new rights cease to accrue and Government no doubt acquires certain rights over the forest in question. The forest, however, does not become a reserved forest until a notification under Section 20 of the Act is issued.