DAVE, J. - (1.) THIS reference comes on the report of the learned Additional Sessions Judge, Baran, dated the nth October, 1961.
(2.) THE facts giving rise to the reference are that some Zamindari forests of village Chatraganj was leased out to accused Syed Mohd. Zaman by the Zamindars of the said village on 31st January, 1959. THE period of lease was to commence from the 24th February, 1959, and was to terminate on 30th June, 1961. Under the terms of the said lease, the accused took possession of that part of the forest which was leased out to him. THEreafter the Rajasthan Abolition of Zamindari and Biswedari Act No. 8 of 1959 which will hereinafter be referred as the Act, came into force, on 1st November, 1959. After that, the Rajasthan Government issued a notification No. F. 1 (152) Rev-A/59 dated the 3rd November, 1959, whereby 15th of November, 1959, and 15th of January, 1960, were fixed for the abolition and acquisition of Zamindari and Biswedari estates respectively. THE accused was prosecuted in the court of the Magistrate First Class, Baran, for an offence under sec. 379 I. P. C. on the ground that after the 15th of November, 1959 the Zamindari estate, in which the disputed forest was included, stood vested in the State Government and yet the accused cut down wood worth about Rs. 50,000/-, and so he had committed an offence under sec. 379 I. P. C. It was urged on behalf of the accused in the trial court that he was in possession of the disputed forest under a valid lease, that it was not declared invalid by any competent authority under the law and therefore no prima facie case of theft could be made out against him. This objection was turned down by the Magistrate on 15th May, 1961. Aggrieved by that order, the accused filed a revision application in the court of the Additional Sessions Judge, Baran, and the learned Judge has reported that the charge framed against the accused was not justified and deserves to be quashed. Learned counsel for the accused supports the reference. Learned Deputy Govt. Advocate also does not oppose it. I find from the perusal of the record that it was not contested by the State that the accused was put in possession of the forest in terms of the lease granted to him by the then zamindars in the year 1959. There is nothing on record to show that the possession of the disputed zamindari forest of Chhatraganj, which was in actual possession of the accused, was formally taken over by any officer of the State under the Act. Moreover, sec. 7 (2) of the Act provides that any agreement or contract made by a zamindar or biswedar with any person, on or after the first day of January, 1953, relating to the grant of a lease of any forest in his estate for a lease of any forest in his estate for a period exceeding 3 years would be null and void. But in the present case, the period of lease did not exceed 3 years and therefore it could not be deemed to be null and void by operation of law. From the explanation submitted by the Magistrate under Rule 80 of the General Rules (Criminal), it appears that he considered the lease to have been made not in good faith, because a decision to the contrary was not given by the Deputy Collector. If the Magistrate had carefully perused sec. 7 of the Act, then it should have appeared to him that the burden of proving that the transfer was not made in good faith was on the State and not on the accused. It could not be presumed against the accused that the transfer was not made in good faith. It also does not appear from the record if any dispute about this forest was determined by the Collector in the prescribed manner under sec. 9 of the Act. Under the circumstances, the accused should not have been prosecuted for an offence under sec. 379 I. P. C. The charge framed against him by the Magistrate is not maintainable. It is unnecessary to dwell upon the point further, since the learned Deputy Government Advocate has conceded the correctness of the reference. The reference is therefore allowed and the charge framed by the Magistrate First Class, Baran, against Syed Mohd. Zaman is hereby quashed. The accused is discharged of the offence under sec. 379 I. P. C. .;