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Seeni Naicker and ors. Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 600 and Cri. Revn. Petn. No. 595 of 1951
Judge
Reported inAIR1953Mad999; (1952)2MLJ307
ActsMadras Preservation of Private Forests Act, 1949 - Sections 5; Cattle Trespass Act, 1871 - Sections 24
AppellantSeeni Naicker and ors.
RespondentThe State and anr.
Appellant AdvocateK. Veeraswami and ;R. Santanam, Advs.
Respondent AdvocateAsst. Public Prosecutor
Excerpt:
- .....accused against whom a charge-sheet has been laid for offences under sections 147, 148 and 323, penal code and under section 24, cattle trespass act. the petitioners belong to the village of devarkulam and they are ryots claiming some customary and prescriptive rights with regard to pasture of the cattle in the communal pasture land in the village. on 23-11-1950 when their cattle were grazing in the pasture land, they were seized by the men of the landlord and in their attempt to rescue these cattle the petitioners are said to have committed the above offences. the police have filed a charge sheet against the petitioners for the said offences.2. these proceedings are sought to be stayed under section 5 of the madras act 27 of 1948. this act was passed for the purpose of preventing the.....
Judgment:
ORDER

Somasundaram, J.

1. This criminal accused against whom a charge-sheet has been laid for offences under Sections 147, 148 and 323, Penal Code and under Section 24, Cattle Trespass Act. The petitioners belong to the village of Devarkulam and they are ryots claiming some customary and prescriptive rights with regard to pasture of the cattle in the communal pasture land in the village. On 23-11-1950 when their cattle were grazing in the pasture land, they were seized by the men of the landlord and in their attempt to rescue these cattle the petitioners are said to have committed the above offences. The police have filed a charge sheet against the petitioners for the said offences.

2. These proceedings are sought to be stayed under Section 5 of the Madras Act 27 of 1948. This Act was passed for the purpose of preventing the indiscriminate destruction of private forest and interference with the customary and prescriptive rights therein and for certain other purposes. The definition of 'forest' includes communal land containing trees and shrubs and pasture land. Under Section 5 of the Act

'All suits, proceedings in execution of decrees or orders and other proceedings including proceedings by way of appeal or revision, in which a claim, to customary or prescriptive rights in a forest is involved and all criminal proceedings in respect of offences which are of the nature described in Chap. XVII, Penal Code and arise out of any act done in exercise or assertion of such customary or prescriptive rights, and which stood stayed upto the commencement of this Act or which may be instituted after such commencement shall continue to stand stayed, or shall stand stayed, as the case may be, and shall not be proceeded with until after the expiration of this Act.'

The section undoubtedly contemplates stay of criminal proceedings also. But only such of the proceedings which are in respect of offences which are of the nature described in Chap. XVII. Penal Code and arise out of any act done in exercise of assertion of such customary or prescriptive rights are stayed.

3. It is contended by Mr. Viraswami for the petitioners that though the offences for which the petitioners are prosecuted are those which do not fall exactly within the scope of Chap. XVII, Penal Code, but still the common object of the said assembly being one which is in the exercise of the customary right, the proceedings in respect of these offences also must be considered as included within the meaning of Section 5 of the said Act. As pointed out already, it is only the proceedings which are in respect of offences which are of the nature described in Chap. XVII, Penal Code and arise out of any act done in the exercise of any customary right that are stayed. The section contemplates stay of proceedings in respect of only certain offences. These offences must be of the nature described in Chap. XVII, Penal Code. It is not enough that the offence described in Chap. XVII, Penal Code or in the nature mentioned in that Chapter must be committed. It must arise out of any act done in exercise or assertion of customary or prescriptive rights. Supposing an offence which does not fall within the Scope of Chap. XVII, Penal Code but which arises out of any act done in exercise of assertion of a customary right, the question is whether the proceedings in respect of such an offence can also be stayed. Sections 147 and 323, Penal Code are not offences relating to property. They fall entirely outside the scone of Chap. XVII, Penal Code. If it is the intention of Section 5 of the Act to stay all proceedings in respect of offences which are committed by any act done in exercise or assertion or a customary right, the section would then be differently worded. But what is contemplated under the section is only stay of those proceedings which relate to the property. They are of the offences mentioned in Chap. XVII, Penal Code or which must be of the nature described in Chap. XVII. No other offence, although it may arise out of any act done in exercise or assertion of customary frights, falls within the scope of Section 5 of the Act. The proceedings therefore in respect of offences which are not of the nature or which do not fall within the scope of Chap. XVII, Penal Code although they may arise out of any act done in exercise or assertion of customary rights, are, in my opinion not protected by Section 5 of the Madras Act, 27 of 1949.

4. So far as Section 24, Cattle Trespass Act is concerned, that is an offence which is in the nature described in' Chap. XVII, Penal Code. The proceedings therefore in respect of the offence under Section 24, Cattle Trespass Act are stayed. The prosecution in the present case will confine itself Jo the offences under Sections 147, 148 and 323, Penal Code.


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