http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: SABIR ALI AND ANR.

DATE OF JUDGMENT: 24/03/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1673            1964 SCR  (7) 435

ACT: Criminal Trial--Offence under Uttar Pradesh Private  Forests Act  (VI  of 1949)-Provision for trial of offences  only  by Magistrate of the Second or Third Class--Trial by the  First Class Magistrate-Validity of-General and Special  provision- Code of Criminal Procedure, 1898 (Act 5 of 1898), ss. 28 and 29(1).

HEADNOTE: On  a complaint by the District Magistrate  the  respondents were put on trial for an offence under s. 15(1) of the Uttar Pradesh  Private Forests Act, 1949.  The charge against  the first  respondent  was  that he sold one  tamarind  tree  to respondent No. 2 for the purpose of felling and removing  it without  obtaining permission from the  competent  authority and  that  against respondent No. 2 was that he  felled  the tree and removed it.  The complaint was transferred from one Magistrate  to  another  till it came on  the  file  of  Mr. Upadhya,  a  Magistrate  of  Second  Class.   After  he  had recorded all the evidence and examined the two  respondents, the powers of Magistrate, First Class were conferred on him. Thereafter,  by  his  judgment the  respondents  were  found guilty  and sentenced to pay a fine of Rs. 50/- each  or  to undergo simple imprisonment for one month.  On appeal, which was later converted into a revision the Additional  Sessions Judge  made a reference to the High Court recommending  that the  trial before the Magistrate, First Class be quashed  as he  had -no jurisdiction to try the offence.  The  reference was  heard  by Mulla, J., who was of the  opinion  that  the trial was proper but as the rulings of the same Court  stood in  his  way, he referred the case to a larger  Bench.   The case  was heard by a Division Bench and the  learned  Judges differed  amongst themselves.  Mr. Justice Nigam was of  the view that the trial was valid but Mr. Justice Singh did  not agree with him.  The case was then placed before Mr. Justice Verma  who agreed with Mr. Justice Singh and the  conviction and sentence passed on the respondents were set aside. According  to the opinion of Mr. Justice Nigam  which  found support from the order of reference made by Mulla, J., there was  nothing  to  prevent the First  Class  Magistrate  from trying  an offence under s. 15(1) of the Act, because  under Schedule III of the Code of Criminal Procedure the  ordinary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

powers  of  a Magistrate, First Class include  the  ordinary powers  of a Magistrate of the Second Class.   According  to the  other  view, the Forests Act  confers  jurisdiction  on Magistrates of the Second and Third Class and this  excludes jurisdiction  of  any  superior Magistrate.   On  appeal  by certificate: Held:     (i)  The words of the second sub-section of s.  15 of  the Act or not rendered ineffective by the  prescription of  the ordinary powers of the Magistrates.  To call in  aid Schedule  III  would render the provisions of s. 29  of  the Code of Criminal Procedure redundant and useless at least in those  cases  where the second part of the  second  schedule applies.   What s. 15(2) does is to prescribe  a  particular court  and in view of the words of s. 29(1) no  other  court can  try offences under s. 15(1) even though the  powers  of those courts may be superior to those of 436 Magistrates  of the Second and Third Class.  In  the  Second Schedule  itself, which prescribes the courts for the  trial of  offences  under  law  other  than  the  Penal  Code,  is excluded,  the  Third Schedule cannot bring about  the  same result  indirectly.   The provisions of the  Third  Schedule must therefore be taken to define general powers and not  to create  jurisdiction  to  try  offences  which  the   second schedule does. (ii) The  scheme  of the Code read with  the  provisions  of triable  by  any  Magistrate as it would be  if  the  Second Schedule  were  applicable.  They are therefore  triable  by such  Magistrates  as  have been named in  the  second  sub- section.   There is good reason for holding this, because  a conviction by a Magistrate of the second or the third class, as the case may be is open to an appeal whereas a conviction by a Magistrate of the First Class and a sentence of fine of Rs. 50/- or under a fine of Rs. 200/after a summary trial is not  appealable.  It is a circumstance which must  be  taken into  account.  It is forcefully illustrated in  this  case. An  appeal would have laid against the same decision if  the Magistrate  had not been given the powers of a  First  Class Magistrate  during the trial.  The respondents were  -robbed of  a right of appeal.  In any event, in view of  the  clear words  of  s. 29(1) the trial of these cases ought  to  have been before a court designated in s. 15(2) and as the  trial was  before  a Magistrate who was not empowered to  try  the offence the proceedings were rightly declared void under  s. 530(p) and of the Code of Criminal Procedure. Jaddu  v. State, A.I.R., 1952 All.372 and Harbans  Singh  v. State, A.I.R. 1953 All. 179, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: CRIMINAL APPEAL No. 193  of 1962.   Appeal  from  the judgment  and  order  dated  March 12,1962  of  the  Allahabad High Court  (Lucknow  Bench)  at Lucknow in Criminal Reference No. 21 of 1961. O.   P.   Rana,  Atiqur-Rehman  and  C.  P.  Lal,  for   the appellant. The respondent did not appear. March 24, 1964. The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal by certificate granted by the  High  Court of Allahabad (Lucknow  Bench)  against  its order  dated  March  12,  1962 quashing  the  trial  of  the respondents  for  an  offence under s. 15(1)  of  the  Uttar Pradesh  Private Forests Act (VI of 1949).  This trial  com- menced  on February 11, 1959 on a complaint by the  District

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Magistrate   Bahraich.    The  charge  against   the   first respondent was that he sold one tamarind tree to  respondent No.  2  for the purpose of felling and removing  it  without obtaining  permission from the competent authority and  that against  respondent  No. 2 was that he felled the  tree  and removed   it.   The  complaint  was  transferred  from   one Magistrate to another 437 till  it  came on the file of Mr. T. B. Upadhaya who  was  a Magistrate of the Second Class.  After Mr. Upadhaya had  re- corded all the evidence and examined the two respondents the powers  of  Magistrate, First Class were conferred  on  him. Thereafter  he pronounced judgment in the case  and  finding respondents  guilty he sentenced them to pay a fine  of  Rs. 501- each or to, undergo simple imprisonment for one  month. The  respondents  filed  an  appeal  before  the  Additional Sessions  Judge, Bahraich which was later converted  into  a revision.   The  learned Additional Sessions  Judge  made  a reference  to  the High Court recommending  that  the  trial before  the Magistrate, First Class be quashed as he had  no jurisdiction  to try the offence.  This reference was  heard by  Mulla, J. who did not agree with the opinion of Beg,  J. In  Jaddu  and others v. State,(1) on which  the  Additional Sessions Judge had relied.  Beg, J. had taken the same  view in  a  subsequent  case also Harbans  Singh  and  others  v. State.(2)  Mulla, J. was of the opinion that the  trial  was proper,  but  as these rulings stood in his way, he  made  a reference of the case to a larger Bench.  The case was heard by  a  Division Bench consisting of B. N. Nigam  and  S.  D. Singh, JJ.  The learned Judges differed amongst  themselves: Mr.  Justice Nigam was of the view that the trial was  valid but Mr. Justice Singh did not agree with him.  The case  was then  placed  before Mr. Justice Verma who agreed  with  Mr. Justice  Singh.   As a result, the conviction  and  sentence passed  on  the respondents were set aside.  The  case  was, however,  certified by the High Court as fit for appeal  and the present appeal has been filed. Which  of  the  two  views is the right  one  is  the  short question in this appeal.  Section 15(2) of the Uttar Pradesh Private  Forests  Act confers jurisdiction to  try  offences under the first sub-section on Magistrates of the Second and the  Third  Class.  The trial in the present case was  by  a Magistrate  of  the  First  Class,  and  if  there  was   no jurisdiction in him to try the offence then the  proceedings were  rightly declared void under s. 530(p) of the  Code  of Criminal Procedure.  According to the opinion of Mr. Justice Nigam  which finds support from the order of reference  made by  Mulla, J., there is nothing to prevent the  First  Class Magistrate from trying an offence under s. 15(1) of the Act, because under Schedule III of the Code of Criminal Procedure the ordinary powers of a Magistrate, First Class include the ordinary  powers  of  a  Magistrate  of  the  Second  Class. According  to  the  other  view,  the  Forests  Act  confers jurisdiction  on  Magistrates of the Second  and  the  Third Class  and  this  excludes  jurisdiction  of  any   superior Magistrate. (1)  A.I.R. 1952 All.873. (2) A.I.R. 1953 All.179. 438 Section 15 of the Forests Act reads as follows -               "15, Offences under this Chapter and trial  of               such offences and penalties thereof: -               (1)   Any  person who contravenes any  of  the               provisions  of this Chapter or  deviates  from               the prescriptions of a sanctioned working plan

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             without  the previous sanction of  the  Forest               Officer  shall  be punishable  with  fine  not               exceeding  one  hundred rupees for  the  first               offence  and  with  fine  not  exceeding   one               thousand  rupees  or simple  imprisonment  not               exceeding three months or both for the  second               or any subsequent offence.               (2)   Offences  under  this section  shall  be               triable by a Magistrate of the Second or Third               Class, and proceedings under this section  may               be  instituted  on  a complaint  made  by  the               landlord  of  the notified area or  forest  in               respect  of  which the offence is  alleged  to               have been committed or by any right-holder  of               such  a  notified  area or forest  or  by  the               Forest  Officer  or by any  officer  specially               empowered by the Provincial Government in this               behalf.               (3)               (4) The  question is one of interpretation of the first part  of sub-s.  (2)  which says that offences under s. 15  shall  be triable  by a Magistrate of the Second or Third  Class.   It does  riot  use  the phrase "any  Magistrate"  nor  does  it specify "a Magistrate of the First Class".  The question  is whether  the words of the sub-section exclude a First  Class Magistrate.   The  answer  to  this,  in  our  opinion,   is furnished  by  ss.  28  and  29  of  the  Code  of  Criminal Procedure.  They provide as follows: -               "28.  Offences under Penal Code-Subject to the               other  provisions  of this  Code  any  offence               under the Indian Penal Code may be tried-               (a)   by the High Court, or               (b)   by the Court of Session, or               (c)   by any other Court by which such offence               is  shown in the eighth column of  the  second               schedule to be triable".               "29.  Offences under other laws-(1) Subject to               the other provisions of this Code, any offence               under  any other law shall, when any Court  is               mentioned in this behalf in such law, be tried               by such court.               439               (2)   When  no Court is mentioned, it  may  be               tried   by  the  High  Court  or  subject   as               aforesaid by any Court constituted under  this               Code  by  which such offence is shown  in  the               eighth   column  of  Second  Schedule  to   be               triable". The  scheme  of  the  Criminal Procedure  Code  is  that  it Provides  separately for trial of offences under  the  Penal Code and for offences under any other law.  The court  which is to try them is indicated in the Code in the eighth column of the Second Schedule.  The first part deals with  offences under the Penal Code and the second part with offences under any  other  law.   The last entry  in  the  Second  Schedule provides  for  the trial for offences under  any  other  law which  are  punishable with imprisonment for less  than  one year  or  with fine only and they are made triable  by  "any Magistrate".   If  the matter were governed  by  the  Second Schedule, the last entry would undoubtedly have comprehended a  Magistrate,  First Class.  But s. 29 says  that  offences under any other law shall be tried by that court which  that law mentions and it is only when no court is mentioned  that the  eighth  column of the Second  Schedule  is  applicable.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

Here  sub-s.  (2)  of s. 15 mentions  the  courts  by  which offences  under s. 15(1) are triable and s.  29(1)  excludes the  application of the second part of the Second  Schedule. The  words of sub-s. (1) of s. 29 are peremptory.  There  is no  escape from them.  They say that ’subject to  the  other provisions  of  the, Code’ any offence under any  other  law shall be tried by the court when such court is mentioned  in that law.  A case under s. 15(1) therefore, is triable  only by the two courts named therein, namely, Magistrates of  the Second   and  the  Third  classes  and  not  by  any   other Magistrate.  The appellant relies upon the words ’subject to the  other provisions of the Code’ and refers to  the  Third Schedule.  But that Schedule deals with the ordinary  powers of  the Magistrates under the Criminal Procedure Code.   The words  of the second sub-section of s. 15 are  not  rendered ineffective  by the prescription of the ordinary  powers  of the  Magistrates.  To call in aid Schedule III would  render the  provisions of s. 29 redundant and useless at  least  in those  cases  where the second part of the  Second  Schedule applies.   What s. 15(2)) does is to prescribe a  particular court  and in view of the words of s. 29(1) no  other  court can  try offences under s. 15(1) even though the  powers  of those courts may be superior to those of Magistrates of  the Second and the Third Class.  If the Second Schedule  itself, which prescribes the courts for the trial of offences  under laws  other  than  the Penal Code, is  excluded,  the  Third Schedule cannot bring about the same result indirectly.  The provisions of the Third Schedule must 440 therefore  be  taken  to define general powers  and  not  to create  jurisdictions  to  try  offences  which  the  Second Schedule does. It was argued before us that there is no point in  prescrib- ing  that the Magistrates of the Second and the Third  Class can try subsequent offences because their powers under s. 32 do  not  extend as far as the punishment  prescribed  by  s. 15(1).  This question does not arise directly but it may  be said that two views are possible: one is that by implication the powers of these Magistrates are extended beyond what  is prescribed  under s. 32.  The other is that in a case  where the  Magistrate  feels that a heavier punishment  should  be imposed he can take recourse to the provisions of s. 349  of the  Code and make a recommendation to a Magistrate who  can impose adequate punishment in the case.  The words  "subject to the other provisions of the Code" would enable this to be done. In our opinion, therefore, the scheme of the Code read  with the provisions of s. 15 of the Forests Act clearly show that offences under s. 15 are not triable by any Magistrate as it would  be if the Second Schedule were applicable.  They  are therefore triable by such Magistrates as have been named  in the  second sub-section.  There is good reason  for  holding this, because a conviction by a Magistrate of the Second  or the  Third Class, as the case may be, is open to  an  appeal whereas a conviction by a Magistrate of the First Class  and a  sentence  of fine of Rs. 501- or under or a fine  of  Rs. 200/-  after  a  summary trial is  not  appealable.   It  is possible that it was intended that a right of appeal  should be  conferred and therefore the trial of these offences  was restricted to Magistrates of the Second and the Third Class. This was pointed out by Mr. Justice Beg in Harbans Singh and others  v. State(1) and was also referred to by Mr.  Justice Verma  in the opinion in the present case.  In our  opinion, it is a circumstance which may be taken into account.  It is forcefully  illustrated in this case.  An appeal would  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

lain  against  the same decision if the Magistrate  had  not been given the powers of a First Class Magistrate during the trial.   The respondents were robbed of a right  of  appeal. In  any event, in view of the clear words of s.  29(1),  the trial  of  these  cases ought to have been  before  a  court designated  in  s.  15(2)  and as the  trial  was  before  a Magistrate  who  was not empowered to try  the  offence  the proceedings  were rightly declared void under s.  530(p)  of the  Code of Criminal Procedure.  We accordingly  hold  that the decision under appeal was correct.  The appeal fails and is dismissed. Appeal dismissed. (1)  A.I.R. 1953 All. 179. 441