- (1.) THIS is an application in revision directed against an order dated 22nd September, 1969, passed by the learned Sessions Judge, Bijnor, allowing the appeal, setting aside the conviction and sentence of the present applicant Under Section 5/26 of the Indian Forest Act and remanding the case to the court of the Magistrate to give the prosecution an opportunity to prove that the disputed land was part of reserved forest. The learned Sessions Judge in his order further directed that the finding of the Magistrate that the land had been freshly ploughed by the applicant was confirmed.
(2.) THE court below was satisfied that plot No. 6/3 which was a portion of plot No. 6, measuring 253 bighas and 15 biswas had by means of a notification been included in the reserved forest. It could not, however, be said with any amount of certainty that the land which had been freshly ploughed by the present applicant was part of plot No. 6, measuring 253 bighas 15 biswas in area. The learned Sessions Judge, therefore, remanded the case to the court of the Magistrate so that both the parties may have an opportunity to give fresh evidence on that limited point.
(3.) IT has been contended by the learned Counsel for the applicant that while disposing of the appeal the learned Sessions Judge could take recourse only to Section 428, Criminal P. C. which reads as follows, and in the circumstances of the case no order for remand could have been passed: (1) In dealing with any appeal under this Chapter, the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the appellate Court, and such Court shall thereupon proceed to dispose of the appeal. ;