Lallubhai Shah, Acting C.J.
1. In order to be able to deal with the. point arising on this application, it is necessary to state the course which this case has taken in the lower Courts. It appears that a complaint was filed against accused Nos. 1 and 2 in respect of certain sandal-wood trees and branches having been removed from Survey Number 32 at Ramgurwadi by accused No. 1, which was claimed to be the property of the Government. In the complaint there was no reference to any breach of Rule No. 3 under Section 41 of the Indian Forest Act. Accused No. 2, who was a forester, was charged with the abetment of this offence. When the charges were framed against the accused, not only were they charged with reference to theft, and abetment of theft in respect of trees and branches from Survey Number 32, but also in respect of the breach and abetment of the breach of the rules under Section 41 of the Indian Forest Act.
2. It appears from the judgment of the trial Court that there were seven passes issued for the removal of thirty-four sandal-wood trees and twenty-five branches from Ramgurwadi to Belgaum Accused No. 1 claimed to have purchased the sandalwood in question from the owner of trees in Survey Number 32. He also purchased some trees in Survey Nos. 25 and 26
3. The facts found by the trial Court may be gathered from the judgment. The essential facts for the purposes of this application are these. At p. 12 of the paper book the learned Magistrate has found as follows:--
The Government iron marks were put on the uprooted sandal-wood trees in Survey Number 32 by Bhiva (Exh. 8) Forest Guard under the order and in the presence of Katgali Forester Pandu Vithu. The trees so stamped with Government iron were seen by Bhiwa (Exh. 8) when on being loaded on carts hired twelve annas for one or two trips each cart for being conveyed from Survey Number 32 to the backyard of Yellappa Ramewadkar in Ramgurwadi village.
4. The learned Magistrate further found as follows:--
The forest passes issued by Forester (Exh. 8) Pandu accused No. 2 were four (Exh. 10) one pass for one of four carts engaged by Kanaya on a settlement of hire at Rs. 4 per cart made in the presence of a Forester Pandu with Ravalu (Exh. 10) Gurav, the neighbour of Yellappa Ramawadker.
5. At the time of the removal of the trees and wood from Ramgurwadi the sandal-wood trees from Survey Number 32 were lying at Yellappa's back-yard The learned Magistrate held that thirty-four sandal-wood trees and twenty-five branches covered by the seven passes for Ramgurwadi cannot all be from Survey Numbers 25 and 26 only. After a detailed examination of the evidence on this point his conclusion is stated in these terms:--
The above discussion leads to the conclusion that the trees conveyed from Ramgurwadi on the seven passes mentioned in the period from May 30, 1922, to June 20, 1922, are nine trees from Survey Number 25 and all the rest from Survey Number 32 whether marked and entered in the passes and whether not marked with Government iron but included in the lot placed at Yellappa's backyard (Exh. 7) and carted from there in four carts at one trip to Belgaum or Shahapur; and they are the billets and in the identical crude form nineteen trees and three branches before the Court, and they were conveyed by Kanaya accused No. 1 with the help of Forester Pandu Vithu then in charge of Ramgurwadi.
6. The learned Magistrate in the course of a somewhat lengthy judgment dealt with the question as to whether these trees were the property of Government, and the question whether the offences of theft and abetment of theft were made out. Out of the six points raised for decision by the learned Magistrate, five related to the question of theft, and the sixth point which related to the charge of conveying the property contrary to the terms of Rule 3 under Section 41 was, whether the sandal-wood trees were conveyed from Ramgurwadi to Belgaum or to Shahpur near Belgaum, without a Government pass.
7. The learned Magistrate was satisfied that the nineteen trees and three branches which were found in the Sangli territory were identified, and were Government property, and he accordingly convicted accused No. 1 of theft in respect of these trees and branches, and convicted accused No. 2 of abetment of theft.
8. Part of the sandal-wood conveyed under the seven passes except nine trees from Survey Number 25 was converted into billets prepared for market. The identification of such transformed property was not possible, and the learned Magistrate, therefore, hesitated to hold that the charge of theft was proved in respect of that part of the property. But he proceeded to observe as follows:--
But the Court has found that the sandal wood conveyed from Ramgurwadi to Belgaum on passes on which Belgaum is specified as destination was smuggled from Belgaum (British territory) into Shahpur (Sangli Native State) without a transit pass from Belgaum to Shahpur as required by Rule 3 under 8. 41 of the Indian Forest Act, 1878; vide p. 6 of this judgment above. The offence of breach of the rule is made penal by Section 42 of the Indian Forest Act. In the present case the breach coversr transformed wood before the Court, and the offence is one coming within the first para of Section 71, Indian Penal Code, and Section 236 of the Criminal Procedure Code.
9. In respect of this wood, which was thus converted, the learned Magistrate found accused No. 1 guilty of having removed the, wood from British territory to Native State territory without the necessary pass and convicted accused No. 2 of the abetment of this offence.
10. The accused appealed to the Sessions Court, and the learned Sessions Judge came to the conclusion, with reference to the ownership of the trees, that the trees or wood removed from Survey Number 32 was not the property of the Government, but the property of accused No. 1. Thus the charge of theft failed against accused No. 1, and though accused No. 2 might have helped accused No. 1 in removing these trees from Survey Number 32 to the backyard of Yellappa in Ramgurwadi the charge of abetment of theft also failed. The learned Sessions Judge acquitted both the accused of the charges relating to theft.
11. But he proceeded to consider the charge against them in respect of the contravention of Rule 3 of the rules framed under Section 41 of the Indian Forest Act. The learned Judge has not specifically referred to the wood other than nineteen trees and three branches, which were found to have been removed originally from Survey Number 32 to the backyard of Yellappa in Ramgurwadi. It makes no difference on principle whether what was removed from Survey No. 32 was nineteen trees and three branches, or something more which was subsequently turned into billets for the market. But the learned Judge was of of opinion that as these trees were removed from Survey Number 32, and as the passes for removal from Eamgurwadi to Belgaum related to Survey Numbers 25 and 26, Rule 3 under Section 41 was contravened.
12. The learned Judge has stated his conclusion in this way:--
Accused No. 2 in issuing passes for the removal of thirty-four trees and twenty-five branches from Survey Numbers 25 and 26 while only nine trees Were taken from Survey Number 25 and the remainder from Survey No 32 certainly abetted the removal of the trees from Survey Number 32 without a proper pass and his conviction on that charge must also be upheld.
13. Though the learned Sessions Judge does not appear to me to have realised the scope of Rule 3, the fact is indisputable that this wood in respect of which seven passess were given for removal from Ramgurwadi to Belgaum, was removed in fact to a place other than Belgaum, and that would clearly be contrary to the terms of Rule 3. So far, therefore, as accused No. 1 is concerned there can be no question that he acted contrary to the terms of the rule: and we are not concerned with his case on the present application.
14. As regards accused No. 2, however, the point of Rule 3 is not the removal of this wood from Survey Number 32 to the backyard of Yellappa; but the point of that rule is the removal of these trees from Ramgurwadi not to Belgaum, but to some other place. It is not suggested in this case that the passes issued in respect of Survey Number 25 were in any way improper or open to any objection. The quantity and description of timber or other forest produce covered by the passes was in no sense exceeded, and these passes authorised the person holding them to remove trees and wood from Ramgurwadi to Belgaum. If these goods had been taken in fact to Belgaum, it cannot be suggested that accused No. 1 would have contravened the provisions of Rule 3; and there is no evidence in the case, and there is no suggestion in either of the judgments of the lower Courts, that the accused No. 2 had anything to do with the place to which the trees and wood were in fact removed. When they were removed in the carts from Ramgurwadi, they were properly removed, but they were improperly taken to Shahapur in the Sangli State, contrary to the terms of the passes given. The essentials of a pass contemplated by Rule 3 are given in Rule 4. Clauses (2) and (3) of Rule 4 lay down that the pass issued under Rule 3 shall specify the quantity and description of forest produce covered by it, and the place from and to which such forest produce is to be conveyed, and the route by which it is to be conveyed. The passes issued contained the quantity and description of the forest produce, and also the place from and to which the produce was to be conveyed. It cannot be said that accused No. 2 had anything to do with the conveyance of the trees after they were removed from Ramgurwadi to a place other than Belgaum which was mentioned in the pass. The whole point of the finding of the trial Court as to the help rendered by accused No. 2 to accused No. 1 is with reference to the charge of theft, because it was said that the goods not belonging to the accused were removed by him without the consent of the true owner, and in doing so accused No. 2 helped him. As ragards the removal from Survey No. 32 to the backyard of Yellappa, the matter would be important only if the charge of theft was sustainable. But as regards the removal of trees and wood from Ramgurwadi, there can be no question that it was quite proper, and it is not suggested, as we have said already, that the trees and wood' removed exceeded the quantity and description of the forest produce mentioned in the passes. The fact that the passes related to Survey Numbers 25 and 26 does not appear to us to make any difference so far as the offence in respect of the breach of Rule 3 is concerned.
15. The learned Sessions Judge appears to have overlooked this aspect of the question. The question in respect of this rule in the trial Court was not for removal from Ramgurwadi, but for taking the trees from Ramgurwadi to a place other than the place which was mentioned in the passes.
16. We are satisfied that the conviction of accused No. 2 for breach of Rule 3 under Section 41 of the Indian Forest Act cannot be justified.
17. In this view it is not really necessary to deal with the other point which has been raised on behalf of the applicant. But we do not feel any doubt that the abetment of such an offence as the breach of a rule, which is made punishable under Rule 26 of Section 41, in virtue of the powers conferred upon the local Government under Sub-section 41 and 42 of the Indian Forest Act, would be an offence, and the abetment thereof would be punishable as provided in the Indian Penal Code. The argument that the penalty is not provided by the Indian Forest Act, but is provided under the rules made under that Act, and that therefore it is not an offence under the special Act within the meaning of Section 40, Indian Penal Code, does not appear to us to be sound. Whether the offence is punishable by virtue of the provisions of the Act or under the rules framed under the powers conferred by the Act for imposing penalty, the result in our opinion is the same. It is an offence punishable under a special Act within the meaning of Section 40 of the Indian Penal Code. We make the rule absolute, and set aside the conviction and sentence as regards accused No. 2.