1. The accused was charged for an offence under Section 3(1) of the Madras Preservation of Private Forest Act punishable under Section 7 of the Act. The offence is said to consist in the accused leasing out in S. N 176/1 about 48-65 acres of land without the permission of the Collector. Under Ex. D. 2 dated 13th August 1948 permission has been granted to clear the forest; and, in accordance with the contract entered into by the accused with one Chandrasekharan Nair, this was to be cleared in six years period.
2. One of the questions raised by Mr. Nambiar appearing before me is that once a forest is cleared for which permission has been granted, it ceased to be a forest and therefore a person is entitled to lease out the property without the sanction of the Collector as sanction is necessary only in cases of forests and not of lands which have been cleared and which cease to be a forest, I do not think it necessary to go into this question at the present stage as the ground on which the magistrate who tried the case and acquitted the accused is different from that that is now contended before me. The magistrate finds that when a Marumakattayam family in the Malabar district or an Aliasanthana family in the South Kanara district is included in the definition of 'person' in the Act a member of a Namboodri family, which is governed under the special Act, called the Namboodri Act, is omitted or has not been included in the definition of 'person'. Therefore, the accused herein, who is a Namboodiri, is not a person coming within the definition of that Act and, hence, the Act does not apply to him. It is on this main ground that the lower court has acquitted the respondent. It must be said that Mr. Nambiar appearing for the respondent has fairly conceded that he cannot support that position. The ground on which the acquittal is based therefore fails and the acquittal must be set aside. But Mr. Nambiar has raised several other questions which require evidence to be adduced. One of the questions is that when a forest is completely cleared, whether it can still be called a forest. For this it must be established that the forest has been completely cleared. In any event, it must be found by evidence that at least the land leased out now is one which cannot fall within the definition of forest. Opportunity must be given to the accused to adduce evidence to substantiate the above contentions.
3. The order of acquittal is therefore set aside and there will be a retrial. The case will be heard and disposed of by a magistrate other than the present magistrate.