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The State Vs. Chand Meah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1961CriLJ299
AppellantThe State
RespondentChand Meah and ors.
Cases Referred & Sidheswar Ganguly v. State of West Bengal
Excerpt:
- .....respondents in the various applications were convicted and sentenced under section 26(l)(h) of the indian forest act in separate criminal cases in the magistrate's court and their appeals to the sessions judge were dismissed and the convictions and sentences confirmed. in the further revisions they filed to this court, they were all acquitted by me on the ground that the charges under section 26(l)(h) cannot be sustained.2. they were charged for clearing and breaking up land for cultivation in certain forests which the prosecution claimed to be reserved forests under section 20 of the indian forest act. three such forests were involved in the various cases in respect of which three notifications had been issued by the maharajah of tripura long before the integration of tripura into the.....
Judgment:
ORDER

T.N.R. Tirumalpad, J.

1. These are 11 applications for leave to appeal to the Supreme Court under Article 134(l)(c) of the Constitution. The respective respondents in the various applications were convicted and sentenced under Section 26(l)(h) of the Indian Forest Act in separate criminal cases in the Magistrate's Court and their appeals to the Sessions Judge were dismissed and the convictions and sentences confirmed. In the further revisions they filed to this Court, they were all acquitted by me on the ground that the charges under Section 26(l)(h) cannot be sustained.

2. They were charged for clearing and breaking up land for cultivation in certain forests which the prosecution claimed to be Reserved Forests under Section 20 of the Indian Forest Act. Three such Forests were involved in the various cases in respect of which three notifications had been issued by the Maharajah of Tripura long before the integration of Tripura into the Indian Union in 1949. The said notifications were issued under Section 5 of what was known as the law relating to the Rakshita Bana Bibhaga (Act No. II of 1297 T. E.) which I shall call as the Tripura Forest Act.

The said Act continued on force alter the integration of Tripura in October, 1949 and until it was repealed by Section 4 of the Part C States Laws Act, 1950 and in its place the Indian Forest Act XVI of 1927 was extended to Tripura with effect from 15-44950 by Section 3 of the Part C States Laws Act. By Section 4 of the Part C States Laws Act the three notifications in respect of the three 'Reserved Forests' were to be deemed to have been issued under the corresponding provision of the newly extended Act namely, the Indian Forest Act. (3) The Tripura Administration treated the three notifications as notifications issued under Section 20 of the Indian Forest Act or in other words as notifications declaring the three forests as Reserved Forests and they have treated the three forests as Reserved Forests under Section 20 of the Indian Forest Act ever since the Indian Forest Act was extended to Tripura, on 15-4-1950. I may mention here that under Section 29 of the Indian Forest Act, a State Government can issue a notification declaring forest land and waste land as protected forests.

The purpose of declaring forests as protected forests is mentioned in Section 30 of the Act as preservation of trees or certain class of trees and prohibition of quarrying of stone, breaking up or clearing land for cultivation etc. The Tripura Administration by a notification No. F. 912/III-2 dated 28-3-1951 declared all areas of unclassed Government Open Forests which were not constituted as Reserved Forests as protected forests under Section 29 of the Act. Thus the Administration excluded the three forests involved in these cases from the said notification as they treated the said three forests as Reserved Forests under Section 20 of the Indian Forest Act.

4. The learned Sessions Judge who dealt with the appeals of the respondents did not go into the question under the Part C States Laws Act and see whether the three notifications in respect of the three forests would be notifications issued under Section 20 or Section 29 of the Indian Forest Act. He was of the view relying on Sections 6 and 24 of the General Clauses Act that these notifications can be treated as notifications issued under Section 20 of the Indian Forest Act. He therefore held that the respondents were rightly proceeded against under Section 26 of the Forest Act for offences relating to Reserved Forests.

5. But I disagreed with the Sessions Judge on this matter and I held that Sections 6 and 24 of the General Clauses Act have no application and that it was Sections 3 and 4 of the Part C States Laws Act, 1950 which would apply. I proceeded to consider as to what would be the corresponding provision in the Indian Forest Act tinder which the three notifications can be deemed to have been issued. For that purpose I dealt with the provisions of the Tripura Forest Act II of 1297 T. E. along with the corresponding provisions of the Indian Forest Act and I held that the said notifications can be treated as only notifications issued under Section 29 of the Indian Forest Act creating what are called protected forests and not under Section 20 of the Indian Forest Act, creating Reserved Forests.

In view of the said finding, I held that the prosecutions under Section 26 of the Indian Forest Act were not sustainable and that if at all the respondents could be proceeded against only under Section 33 of the Act. I further held that as no subsequent notification under Section 30 of the Act in respect of the three forests had been issued, the respondents cannot be proceeded against even under Section 33 as the penalty under the said section was for acts committed contrary to the prohibition under Section 30.

6. Now it is contended for the petitioner that the said decision of mine is not correct, Certain new arguments were advanced, which were not raised in the revision cases, perhaps with the idea that in view of these points now raised I should certify these as fit cases for appeal to the Supreme Court. It was argued that the notifications which were signed by the Maharajah apart from being statutory notifications under Section 5 of the Tripura Forest Act II of 1297 T. E. had the force of law as the Maharajah was the Law maker and that any violation of the same was punishable under Act I of 1318 T. E. (Law relating to Constitution of Courts in the Independent State of Tripura).

I was not able to understand what followed from that argument and it was also not made clear. This point was not argued before me in the revision petition and it was admitted then that these notifications were issued under Section 5 of the Tripura Forest Act II of 1297 T. E. Even if these notifications are treated as having the force of law as issued by the Maharajah over his signature, they can be treated as valid notifications only by virtue of Section 4 of the Part C States Laws Act. Even then we are reduced to the position that the said notifications have to be fitted in with the corresponding provisions of the Indian Forest Act and this has been done by me in my order.

7. Next it was contended that a notification under Section 30 of the Indian Forest Act has in fact been issued and that the convictions and sentences of the respondents could therefore have been sustained under Section 33(l)(c) of the Act. A copy of the said notification was also produced as notification No. 2 dated 29-4-1952. But the said notification would apply only to the forests declared as protected forests under notification No. F.912/III-2 dated 28-3-1951.

Under the latter notification, the three forests involved in these cases which were treated as Reserved Forests under Section 20 of the Indian Forest Act were excluded from the classification as protected forests. Thus notification No. 2 dated 29-4-1952 will not apply to the three forests in these cases and the respondents cannot therefore be proceeded against under Section 33 of the Indian Forest Act.

8. Lastly, it was argued that my decision involved a substantial point of law of general and public importance and that an authoritative pronouncement by the highest Court of the land was necessary. This point was elaborated in the course of the arguments and it was urged that ever since 1950 the three forests have been treated by the Tripura Administration as Reserved Forests under Section 20 of the Indian Forest Act by virtue of the three notifications and that on that basis there have been very many prosecutions under Section 26 of the Indian, Forest Act and many persons have been convicted and further that as many as 500 prosecutions were still pending in the Magistrates' Courts which have all been stayed on account of my decision. It was also mentioned that certain revision petitions against (the convictions and sentences under Section 20 of the Indian Forest Act are still pending in this Court and their hearing has been stayed in view of these applications for certificate to appeal to the Supreme Court under Article 134(l)(c) of the Constitution.

9. There is no gainsaying the fact that a substantial question of law is involved in these cases namely, whether the notifications in respect of the three forests in question are to be deemed to be notifications under Section 20 of the Indian Forest Act or whether they are only notifications under Section 29 of the Indian Forest Act. It is a very important question of law of public importance as far as the Union Territory of Tripura is concerned and my decision. will have far-reaching consequences which are not confined to the particular cases in question but which will affect the actions taken by the Tripura Administration in respect of the said three forests as Reserved Forests ever since 1950.

10. For the respondents it was pointed out that in these cases they have been acquitted on my finding, that Article 134(l)(c) of the Constitution will not apply to a case of acquittal by the High Court in view of the decision of the Supreme Court in State Government, M.P. v. Ramkrishna Ganpatrao AIR 1954 SC 20 that this Court should not therefore certify these cases as fit cases for appeal, even though a substantial question of law is involved, that it is only the Supreme Court which can grant special leave in such cases under Article 136 of the Constitution, if they consider it necessary, that the respondents are not interested in the other consequences following from my decision, and that they should not be dragged to the Supreme Court because the Tripura Administration was interested in questioning the decision of this Court for fear of other consequences of the decision.

11. These are cases where the respondents have been acquitted by me in revision cases and not in appeals, It has been held by the Supreme Court in AIR 1954 SC 20 referred to above.

Article 134 does not provide for an appeal from a judgment, final order or sentence in a criminal proceeding of a High Court, if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal. In other words, there is no provision in the Constitution corresponding to Section 417, Criminal P.C., and such an order is final, subject, however, to the overriding powers vested in the Supreme Court by Article 136 of the Constitution.

12. This decision was later considered in State of Madras v. Gurviah Naidu and Co. Ltd. AIR 1958 SC 158 by a Bench of five Judges of the 'Supreme Court. It was explained as follows:

The decision in AIR 1954 SC 20 was a decision of a Bench of three Judges and not that of a Constitution Bench. There the appeal was by special leave granted by this Court. The observation that there was no provision in the Constitution corresponding to Section 417 of the Criminal Procedure Code was obviously made to emphasise that this Court should not, in an appeal by special leave, interfere with an order of acquittal passed by the High Court merely for correcting errors of fact or law.

Without hearing further arguments on the scope of Article 134(l)(c), we would prefer not to express any opinion as a Constitution Bench as to the validity of the certificates given by the High Court in this case, for assuming, without deciding, that the certificates were wrongly given, we would, in view of the clear majority decision of this Court on Article 286(l)(b) which s not questioned before us and the equally clear and convincing evidence on record in these cases, be willing, if it were necessary, to regularise these appeals by giving special leave to appeal here and now.

13. Thus the position is that the question whether under Article 134(l)(c) a High Court can certify as to the fitness of an appeal to the Supreme Court in a case of acquittal has been left undecided by the Constitution Bench of the Supreme Court in the latter decision. But the earlier decision namely AIR 1954 SC 20 has laid down that an order of acquittal is final subject only to the overriding powers vested with the Supreme Court by Article 136 of the Constitution. This would indicate that in a case of acquittal the High Court cannot certify it to be a fit case under Article 134(l)(c).

14. That was how it was understood by the Chief Justice and another Judge of the Calcutta High Court in the decision Supdt. and Remembrancer of Legal Affairs, Government of West Bengal v. Anwar AH Sarkar 59 Cal WN 1042 : AIR 1956 Cal 316. The Supreme Court decision AIR 1954 SC 20 was considered in the Calcutta case and the learned Judges held in the application under Article 134(l)(c) of the Constitution before them for a certificate, that the said decision of the Supreme Court did not make it any longer open to the High Court to entertain an argument that Article 134(l)(c) would permit a High Court to certify fitness for appeal to the Supreme Court against a decision of acquittal by the High Court. To my mind also, the said decision of the Supreme Court is clearly binding on this Court; and it is no longer permissible to a High Court to certify under Article 134(l)(c) a case of ac in a criminal case to be fit for appeal to the] Supreme Court in the face of the said decision.

15. But my attention was drawn by the learned Government Advocate to the Bench decision of the Allahabad High Court in State v. Tula Ram AIR l960 All. 585. In that decision also the decision of the Supreme Court AIR 1954 SC 20 was considered. But in spite of the clear and definite statement in the said decision that Article 134 does not provide for an appeal from a judgment, final order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal, the Allahabad High Court proceeded to consider the question and dealt with Article 134(l)(c) and Section 417 Cr. P.C. in detail and they came to the conclusion that it cannot be said that because Article 134(l)(c) of the Constitution does not contain any provisions corresponding to Section 417 Cr. P.C. it does not empower the High Court to grant the necessary certificate from an appellate order of acquittal passed by the High Court, even where the case was considered a fit one for a certificate.

They next proceeded to state that they were, therefore, of the opinion that the said decision of the Supreme Court did not lay down that the High Court was not empowered to grant a certificate under Article 134(l)(c) from an appellate order of acquittal in a case where the High Court thought that the matter was fit enough to go to the Supreme Court. After this, the Allahabad High Court proceeded to consider whether it was a fit case to be certified and held that it was not and so they dismissed the application.

16. I am unable to understand how, when even the later Supreme Court decision (S) AIR 1956 SC 158 which was decided by a Bench of five Judges did not express any opinion as to the validity of the certificate given by the High Court under Article 134(l)(c) in that case, but were prepared to regularise the appeal by giving special leave in view of the earlier Supreme Court decision, the High Court of Allahabad could go in detail into Article 134(l)(c) and Section 417 Cr. P.C. and express an opinion contrary to the view of the Supreme Court. I am not prepared to do so and I feel bound by the decision of the Supreme Court in AIR 1954 SC 20.

17. The learned Government Advocate tried to distinguish the said decision and say that it would apply only if the acquittal had been made by the High Court in an appeal and not in revision as in the cases before me. But there is no difference in principle whether the acquittal is in an appeal or in a revision. In a case of revision under Section 439 Cr. P.C. the High Court exercises the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 of the said Code. As pointed out in the same decision AIR 1954 SC 20:

In the case of an order of acquittal where the presumption of the innocence of an accused person is reinforced by that order it seems to us that the exercise of this jurisdiction would not be justified for merely correcting errors of fact or law by the High Court. An occasion for interference with an acquittal order may arise, however, where a High Court acts perversely or otherwise improperly or has been deceived by fraud.

18. Thus whether the order of acquittal is in an appeal or in a revision does not really make any difference. This is the fact of acquittal that is important. The question is whether the High Court can certify in a case of acquittal, if a substantial question of law is involved.

19. I am aware that a substantial question of law of far reaching importance is involved in these cases and I have been at pains to point it out in this order. But as has been pointed out in various decisions of the Supreme Court like Baladin v. State of U.P. (S) AIR 1956 SC 181, Sunder Singh v. State of U.P. (S) AIR 1950 SC 411 & Sidheswar Ganguly v. State of West Bengal AIR 1958 SC 143, the word 'certify' is a strong word and what the High Court has to certify is that the case is a fit case for appeal.

Even if the High Court feels that a substantial question of law of general importance is involved, it cannot certify it as fit in a case of acquittal in a criminal case in view of the observations of the Supreme Court in AIR 1954 SC 20 and (S) AIR 1956 SC 158. In the latter case as I have pointed out the Supreme Court regularised the appeals under Article 136 of the Constitution, where the High Court of Madras had given certificates under Article 134(l)(c) in spite of it being an appeal against acquittal. It follows that I cannot certify in these cases under Article 134(l)(c) that they are fit cases for appeal in view of the fact that the respondents have all been acquitted by me in the revisions filed in this Court. It is for the petitioner to move the Supreme Court for special leave under Article 13G of the Constitution. The applications are dismissed.


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