A.N. Mulla, J. - (1.) Matru Khan Applicant has been convicted under Sec. 26 read with Sec. 5 of the Indian Forest Act and has been sentenced to a fine of Rs. 500/ -, in default 11/2 month's rigorous imprisonment. The appellate court also awarded a compensation to the Forest Department and directed the Applicant to pay a sum of Rs. 2500/ -.
(2.) The counsel for the Applicant has raised two contentions before me. In the first place he contended that since no notification under Sec. 20 of the Indian Forest Act was passed in this case the tract of land from which the trees were cut away had not been declared to be a reserved forest. In support of this contention he also drew ray attention to the fact that the acts which are made penal in respect of the reserved forests are different from the acts which are made penal in respect of those forests about which only a notification under Sec. 4 of the Indian Forests Act has been issued. It seems that the State before it can declare any area as a reserved forest had to make two notifications. The first notification is to be issued under Sec. 4, which may be described as a proposal for declaring a particular area as a reserved forest. After this notification is issued, claims are considered and decided and finally a second notification is issued under Sec. 20 when that area is finally notified as a reserved forest. It seems that unless an area is declared a notified reserved forest, the only penal provision that exists in the Indian Forest Act is contained in the first part of Sec. 26, This penal provision is as follows: 26. (1) Any person who - - (a) makes any fresh clearing prohibited by Sec. 5, or (b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest.
(3.) The subsequent part of Sec. 26 deals with those acts which are prohibited in a reserved forest. This is admitted by the counsel for the State that no notification under Sec. 20 was issued in this case and only a notification under Sec. 4 was issued. I have, therefore, to see whether the conduct alleged against the Applicant falls under Sub -section (a) above, for obviously Sub -section (b) has no relevance.;