S. Acharya, J. -
(1.) THE Petitioners stand convicted under Section 143, Indian Penal Code and Section 27(3)(a) of the Orissa Forest Act (hereinafter referred to as the 'Act '), and each of them has been sentenced to R. I. for 3 months on each count. The suit sentences have been ordered to run concurrently.
(2.) THE prosecution case is that on 27 -12 -1973 all the Petitioners formed an unlawful assembly, and in prosecution of the common object of that unlawful assembly they cut a number of trees at a particular place inside the Dharamgarh reserve forest burnt the same and converted the land at that place for Podu cultivation. On the finding that the aforesaid allegation against the Petitioners have been established, they have been convicted of the aforesaid offences. It is urged by Mr. Swamy, the learned Counsel for the Petitioners, that in this case there is no evidence on record that the notification declaring the forest in question as a reserve forest was published as required under Section 21 of the Act and that the said notification was published in the manner required under Section 22 of that Act, so the conviction of the Petitioners cannot be maintained. That submission is made on the authority of the decisions of this Court in Arjun Behera v. State : 43 (1977) C. L. T. 365, Sadhu Patra others v. The State of Orissa : 36 (1970) C. L. T. 395, and Chandrama Pd. Mishra and Ors. v. The State of Bihar, 1963 (1) Cri L.J. 134.
(3.) THE main offence alleged against the Petitioners is an offence under Section 27 of the Act. The F. I. R. (Ext. 1), registered at the Baipariguda police station was scribed by P.W.. 1, a Forester. In the column meant for "brief description of the offence", it is stated "criminal trespass and destruction of the reserve forest in furtherance of the common intention". P. W. 1 and almost all the prosecution witness stated that the said offences were committed inside the Dharamgarh reserve forest. The Court while examining the accused persons under Section 313, Code of Criminal Procedure has proceeded on the basis that the offences were committed inside the forest declared as reserve forest by Government. The trial Court in paragraph 4 of its judgment formulated the points for determination in this case as follows:
(1) If the accused were members of the unlawful assembly;
(2) If the accused fell and burnt the trees from Dharamgarh forest; and
(3) If Dharamgarh forest is a reserve forest.
It is evident from the judgments of both the Courts below that both the Courts proceeded to examine as to whether the occurrence in question took place in the Dharamgarh reserve forest and whether any offence under the Act was committed by the accused persons. The learned Counsel appearing for the Petitioners in the Court below asserted in that Court that there was no evidence on record to show that the alleged offences were actually committed in respect of any reserve forest, but the Court on its own appreciation of the evidence on record held that the Dharamgarh forest was a reserve forest and the offences alleged against the accused persons were committed in that forest. On the said findings it upheld the conviction under Section 27 of the Act and under Section 143, Indian Penal Code. The only notification, attested copy of which has been exhibited in this case as Ext. 2, does not say that the said forest was declared to be a reserve forest under any Act whatsoever. It merely shows that as per Rule 3 of the Jeypore Forest Rules the Agent to the Governor, Vizagpattam notified, with the previous sanction of the Board of Revenue, that 60.050 acres of land in Dharamgarh reserve, Ramgiri Tona, Jeypore Taluk, Jeypore, was declared to be "reserve". There is nothing in the said notification, nor has it been established in this case that the said notification was a notification declaring the forest in question to be a reserve forest. Mr. Rath, the learned Addl. Standing - Counsel, states that by that notification the land and area stated therein were declared as "reserve lands" as can be seen from the "Management of Koraput District Forest and Waste Land Rules, 1956". That, notification does not show whether the land referred to in the said notification was at all declared either as "reserve land" or as "reserve forest". Rule 3 of the said Rules states that 'reserve land ' includes all lands which were notified as such by the Agent, Commissioner and Agent to the Governor, Vizagpattam, in the various notifications in the Forest Supplements to the Vizagpattam District Gazettes on different dates as noted in the said Rules. The date of issue of the notification, Ext. 2, corresponds with one of the dates mentioned in the said Rule 3, but the notification, Ext. 2, does not state that the land mentioned in that notification was declared to be 'reserved land 'as required under Rule 3.
Apart from that consideration, the Petitioners were not prosecuted for breach or infringement of any of the aforesaid Rules or "for committing any offence in respect of any reserve land. As stated above, the prosecution of the accused persons in the trial Court began and continued on the allegation that they committed the above -mentioned offences inside the reserve forest. In order to bring home an offence under Section 27 of the Act the prosecution at first must prove that the notification under Section 21 of the Act was actually issued and the same was published in the manner as provided in Section 22 of the Act. In this case, there is nothing on record to show that the place is question in which the accused persons allegedly committed the aforesaid offences was ever declared to be a reserve forest, or that any notification was ever issued and published in accordance with the provisions of Sections 21 and 22 of the Act. In the absence of proof of the above facts, the accused persons cannot be convicted of an offence under Section 27 of the Act. Accordingly, the conviction of the Petitioners under Section 27(3)(a) of the Act cannot be maintained, and so they have to be and are hereby acquitted of the same.
4. On the failure of the prosecution to bring home the offence under the Act against the accused persons, their conviction under Section 143, Indian Penal Code cannot also be maintained, as the commission of the said offence under the Act is alleged to be the common object of that assembly, and on their acquittal of the said offence the essential element of common object for an offence under Section 143, Indian Penal Code is found lacking.;