Sri Udit Prasad Singh and Another vs Sukru Kisan

Ray, J.—The civil revisions arise out of two appellate orders by S.L. Marwood, Esq. C.I.E., I.C.S., Revenue Commissioner, Orissa, dated 30-7-1943, in Revenue Appeals Nos. 63 and 64 of 1942-43, confirming the order of the Deputy Commissioner of Sambalpur, dated 80-1-1943, directing Sri Udit Pratap Singh, petitioner in C.R. No. 168 of 1943 to pay a penalty of Rs. 2000 for having cut and removed timber from 19 plots of Grammiya jungle and Tikrachatan in disregard of the forest rules framed and promulgated u/s 162, Central Provinces Land Revenue Act, and directing Sri B.N. Kar, a contractor, petitioner in C.R. No. 169 of 1943, to pay a fine of Rs. 950 for having taken part in cutting and removing timber from the said jungles in disregard of the rules.

The facts leading to these petitions are that on the application of Sukru Kisan, the minor thikadar of village Tampersingha alleging that Sri Udit Pratap Singh, malguzar had cut a large quantity of timber from Grammiya jungle for sale, a Revenue Miscellaneous case No. 5/4, 305 of 1941-42 was started, and the petition was forwarded to the Additional Tahsildar for enquiry and report. The latter in his report dated 20-6-1942, stated that the malguzar and his contractor Sri B.N. Kar had cut about 6000 sal, bija and other trees from Grammiya jungle plot Nos. 1-15, 129 and 119/1197 with a total area of 663.32 acres, from Tikrachatan plot Nos. 1118 and 1119 with an area of 82.63 acres and also from Gochar plot NOS. 20, 22 and 1218 with an area of 37.94 acres. He further reported that some trees had been cut from Badjungle plot No. 16 with an area of 16.53 acres.

On receipt of this report, the learned Deputy Commissioner visited the forest on 21-1.1948, and found not only that a large number of trees bad been cut from the different plots mentioned above, but that the cutting had been indiscriminate and unscientific in that they had been cut over one foot, many others 2 or 3 feet above the ground, while the rule was that they should be flushed with the ground. On inspection the learned Deputy Commissioner formed an opinion that as a result of this exploitation the forest growth was bound to suffer. During his enquiry he (the Deputy Commissioner) discovered that a jamun tree--a tree of prohibited species--had been cut without special permission.

The malguzar petitioner admitted the cutting and removal of 6000 trees but maintained that it had been done so, with the permission of the Deputy Commissioner in his letter No. 9991 G, dated 11th November 1941. The original letter, however, on being referred to, did not support this contention of the malguzar inasmuch as the working scheme for the cutting of the timber for which permission had been granted was confined to malguzari forest of the malguzar and did not cover a Grammiya jungle. The malguzar further pleaded that if he had cut timbers beyond malguzari forest, it was because of a genuine mistake as to the boundary between it and the Grammiya jungle. This plea was also negatived by the learned Deputy Commissioner who held on inspection of the locality that there could not be any possibility of a genuine mistake as the Badjungle plots lay in a compact block to the north of the village quite distinct from the other forest area. He further found that the cutting was carried on by the malguzar in utter disregard of the protest made by the tenants against it. He did never make any attempt to get the area demarcated by the patwari or the revenue inspector. According to him, therefore, there was a deliberate attempt on the part of the malguzar (Udit Pratap Singh) to remove timber from the Grammiya jungle and Tikrachatan forests. With regard to the cutting of the jungle on the gochar plots, he was not penalised on the ground that the forest rules did not apply to them.

With regard to Sri B.N. Kar, the learned Deputy Commissioner observed that during his local inspection he had learned from some of the witnesses examined by him that both the malguzar and contractor had come to the village together and told the tenants in reply to their protest, in that behalf, that they had a right to cut the disputed jungles. According to the Deputy Commissioner, he was also liable to be fined.

Coming to the findings as aforesaid, he fined both the petitioners as stated above. Both of them preferred appeals to the Revenue Commissioner of Orissa, who is vested with the powers of the Chief Commissioner for the purpose of administration of the Sambalpur Land Revenue Act and the rules thereunder, and he by one consolidated order referred to above confirmed the order of the Deputy Commissioner holding that both of them had committed breach of the forest rules. The petitioners have come up in revision to this Court.

At the time of admission of these petitions, the question of their maintainability was reserved to be taken up at the time of hearing, and the Crown was given notice of the petitions, and was at liberty to be represented if advisable. Notwithstanding the service of the notice, there is no appearance on behalf of the Crown. Mr. Rabindra Nath Singh, appearing for the opposite party, raises a preliminary objection that this Court has no jurisdiction to entertain the petitions. Mr. Sen Gupta, appearing for the petitioners, contends that though the petitions have been wrongly labelled as civil revisions, they are in fact petitions invoking the jurisdiction of this Court to revise the order of the Deputy Commissioner which is in fact an order of a Criminal Court inasmuch he has punished the petitioners for offences committed by them by violating the forest rules. He, in short, contends that the petitions are maintainable in this Court in its criminal revisional jurisdiction.

That the petitions are not maintainable as civil revisions governed by Section 115, Civil P.C. is not controverted by the learned Counsel for the petitioners. The petitions, therefore, are not maintainable as civil revisions.

If the orders of the Courts below are orders passed by Revenue Officers within the purview of the provisions of the Central Provinces Land Revenue Act, 1881, and the rules thereunder, it is, beyond possibility of any doubt, that this Court has no jurisdiction to entertain these petitions.

The only contention that remains to be disposed of is whether the violation of some of the forest rules promulgated as above to which penalty has been added by Notification of the Chief Commissioner No. 720 IVL-16-R dated 21st January 1931, amounts to an offence within the meaning of Section 4(o), Criminal P.C., according to which an "offence" means any act or omission made punishable by any law for the time being in force. Once it is an offence within the meaning assigned to the word in the Code, it is triable according to Schedule II, Criminal P.C. by any Magistrate if punishable with imprisonment for less than one year or with fine only.

It is necessary, therefore, to consider the nature of the rules which have been violated by the petitioners. Section 124A, Central Provinces Land Revenue Act (18 [XVIII] of 1881) Sub-section (1) reads:

When under any record of rights or sanad or any agreement with the Government the proprietor or the superior or inferior proprietor of any forest land included within, or forming, a mahal is bound to manage such forest land in accordance with rules or instructions prescribed by any Government officer, the Chief Commissioner may make rules regarding the control and management of such forest land.

In this case there is no controversy that the forest land in question answers the description of such lands referred to in the Sub-section. Section 162 of the Act authorises the Chief Commissioner to make rules consistent with the Act for carrying out its provisions and he is empowered to attach to the breach of any such rule a penalty which may extend to Rs. 200. The section further provides that the rules made by the Chief Commissioner under this Act shall not take effect until published in the local official Gazette, and that all such rules, when so published, shall have the force of law. As per Notification No. 1075 IVL-10-RR, dated 17th October 1930, the rules called the Sambalpur Zamindari and Malguzari Forest Rules, 1930, were published and have since then been in force. It is said that in this case Rules 3, 4 and 7 had been breached, and there is no controversy about that. According to Sub-sections (2) and (3) of Section 124A, failure of observance of the rules made by the Chief Commissioner will entail upon the proprietor concerned a penalty of his exclusion from the possession of the forest land. This should be done after observance of the procedure provided in the Sub-sections. According to Rule 9 of the published rules, another penalty alternatively to the one provided for under Sub-section (2) of Section 124A of the Act has been attached. Subsequently, another Notification No. 720-IVL, 16-R dated 21-1-1931 publishes the following rule which I quote herein below for ready reference:

In exercise of the power conferred by Section 162, Central Provinces Land Revenue Act, 1881 (18 [XVIII] of 1881), read with Section 3, Bengal, Bihar and Orisaa and Assam Laws Act'' 1912 (7 [VII] of 1912), the Governor in Council with the previous sanction of the Governor-General in Council, is pleased to attach to the breach of Rules 3, 4, 6, 7, 8, 11, 14, 16, 17, 18 and 19 of the rules made u/s 124A for the management of zamindari and malguzari forests in Sambalpur district which were published in notification No. 1075-IVL-10-R.R. dated 17-10-1930, a penalty which may extend to Rs. 200 or when such breach is a continuing breach, to Rs. 50 for each day during which such breach continues.

The penalty attached by the above notification shall now be read as part of the relevant rules. There can be no doubt, however, that the rules are silent as to the procedure to be adopted for enforcing the penalty. Sub-section (2) of Section 124A requires that before excluding the proprietor from possession of the forest land, he has to be given notice, and an opportunity to show cause. Similarly Rule 9, which provides for the violation to be visited with the forest being kept under special protection, also requires that the zamindar or malguzar concerned will be given an opportunity of being heard, but no such procedure is enacted in the last notification. Similarly in the case of an order passed under Rule 9 by the Deputy Commissioner, it has been made appealable to the Commissioner whose decision becomes final (vide Rule 9 Sub-rule (2)). Orders passed under Sub-section (3) of Section 124A and Sub-section (7) of the section are no doubt penal orders, in the sense that they inflict some penalties on account of violation of forest rules, but in the matters of appeal and revision, they must be governed by Sections 22 to 26, because they are "orders under this Act" within the meaning of Section 22.

Though the notification does not prescribe an authority by whom or the manner in which the new penalties attached to the breaches of the rules are to be enforced, as the rules which are sought to be amended by the notification in question are meant for administration of the forest, it can be contended with great force that the penalties should be enforced by the authority who is enforcing the rules themselves. This, after all, may prove to be mere guess work. I refrain from expressing any opinion about that.

It has to be considered in the background set out above, whether violation of the rule to which a penalty has been attached by the notification amounts to an offence triable in the manner in which offences in general are to be tried, that is to say, whether they should be tried in accordance with the provisions of the Criminal Procedure Code. The real difficulty in the solution arises from the fact that the violation of the rules in question with penalty attached thereto falls within the meaning of the words used to define an offence in the Criminal Procedure Code, but it has to he borne in mind that the definition of an offence in Section 4(o) of the Code is meant for the Code itself, and is controlled by the restrictive words in Sub-section (1) of the section, namely, "unless a different intention appears from the subject or context." To put it clearly, it comes to this that no act or omission even though made punishable by law for the time being in force will amount to an offence for the purpose of the Code if a different intention appears either from the subject or context. I have set out the context in which the notification attaching penalty appears. The notification effects certain further amendment in the forest rules. The rules previous to the notification did attach certain penalties, such as, confiscation of timber, forfeiture of possession and things of the kind, to be inflicted upon the zamindar in case of violation of the rules. A machinery for enforcement of the penalty so attached did exist. Provision of such machinery and provision as to the forum of appeal or revision or review of orders enforcing the penalty did indicate very clearly that the penalties did not make the violation of the rules offences within the meaning of the Criminal Procedure Code. If it was so, it was on account of the fact that a different intention appeared from the subject or context. In my judgment, therefore, the further amendment of the rules by way of attaching further penalties in the shape of fines does not take the matter out of the same context in which their violation, as I have already observed, did not formerly amount to an offence. If the Legislature intended that a new penalty attached would make it a criminal offence, we should expect that it should have been so provided by the Legislature. In my view, therefore, having reference to the intention of the Legislature, as it appears from the subject or context, it is quite plain that the acts or omissions amounting to violation of the rules in question, even though punishable with fines or other penalties, do not amount to criminal offences.

Instances are not wanting where mere acts or omissions even though punishable with penalties, have been held not to amount to criminal offences. I shall here refer to certain authorities cited at the Bar.

In Queen-Empress v. Ram Pal. (98) 20 All. 95 the act of travelling in a train without a proper ticket, though punishable with or in the shape of payment of a certain excess fare, was held not to amount to an offence even though the section providing for such penalty, namely, Section 113, Railways Act, was placed in the group of sections under a heading of "Other offences." That it was not an offence was manifest on reading Section 132 of the Act. This authority illustrates that the Act or law which makes an act or omission punishable has to be examined in order to find out whether any different intention appears from the subject or context within the meaning of Section 4, Sub-section (1), Criminal P.C. In In re Valli Mitha. AIR 1920 Bom. 350 a proceeding to recover legal fare, u/s 28, Bombay Public Conveyance Act, 1863, was held not to be a complaint for an offence. In In re Basanta Kumar Banerji. (07) Cri. L.J. 463 neither Section 47, Railways Act, nor the rules made by a Railway Company under that section were held to create any criminal offence. Stephen, J. observes:

Various fines are imposed for misconduct on the part of Kail way servants, and those fines are made enforceable by deductions from their pay. This is in accordance with Sub-section (2) of Section 47. I have no doubt that the intention of this section was to give the Railway Company power to enforce rules of its own making by imposing fines on its own servants. It was never intended that Section 47 or any rule made under that section should create any criminal offence.

In Reg. v. Durgaram Madhavram. (70) 7 Bom. 55 it was held that a fine levied by a pound-keeper is not a punishment imposed on conviction for an offence. In Secretary of State v. Gobindram Jaichandrai. AIR 1930 Sin 162 it was held that the High Court could not go into the merits of an order of a Magistrate imposing a penalty by way of extra charges u/s 113(4), Railways Act, as it had no jurisdiction to revise that order, because it was held that it was not an order in a criminal proceeding within the scope of the Criminal Procedure Code.

Mr. Sen Gupta appearing for the petitioners has relied upon two cases". One of them is the case in Emperor Vs. Pandu Vithu Savant, in which it was held the removal of wood to places other than that to which passes related is an offence, such an act being prohibited by certain rules framed u/s 41, Forest Act. This case takes the matter no further, because Section 42 distinctly treats violation of the rules as offences. Section 42 reads:

The Local Government may by such rules, prescribe as penalties for the infringement thereof imprisonment for a term which may extend to six months, or fine, which may extend to five hundred rupees, or both, double penalties may be inflicted in case where the offence is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or if the offender has been previously convicted of a like offence.

The second case that he has relied upon is the case in Emperor Vs. Abdul Hamid, but this case does not help his contention to any appreciable extent. 1 invite attention to a passage from the judgment of Das J. at page 12 which, reads as follows:

It has been held in numerous cases that where a statute creates a new offence, which was not an offence at common law and imposes a penalty in respect of such offence, a person committing such an offence can only be proceeded against under the statute which creates the offence and cannot be indicted under the general law. The principle is stated with clearness and precision in Hawkins'' Pleas of the Crown, Book II, Ch. 25, Section 4 and is as follows:

Also where a statute makes a new offence which was in no way prohibited by the common law, and appoints a peculiar manner of proceeding against the offender as by commitment, or action of debt, or information, etc. without mentioning an indictment, it seems to be settled to this day that it would not maintain an indictment, because mentioning the other methods of proceedings seems impliedly to exclude that of indictment.

This ruling rather supports the contention of the opposite party that the violation of the rules should be dealt with under the Act (C.P.L.R.) In the case in Chowdhury Radhashyam Das and Another Vs. Nidhi Sahu, the provisions of Section 85, Orissa Tenancy Act, had been violated, and the section provides a penalty for such violation. Brough J., while considering the case observed:

When the matter came up before, the learned Sessions Judge, he observed correctly that the Magistrate''s jurisdiction was given him by Section 85 and did not constitute a new offence under the Indian Penal Code punishable with a fine or imprisonment in default and that his order imposing an imprisonment in default of payment was clearly ultra vires.

Besides examining the cases referred to above, I have considered certain other rulings cited at the Bar, but as those cases are completely inapplicable, in view of their particular facts, I need not consider them here.

Under the circumstances, I hold that the order of the Deputy Commissioner imposing the penalties is not revisable by this Court inasmuch the acts or omissions of the petitioners amounting to violation of the forest rules, as amended by the notification referred to above, are not criminal offences. The petitions of the petitioners are, therefore, dismissed. But under the peculiar circumstances of the case, I make no order as to costs.

Meredith, J.

I agree.