MINAL APPEAL No 193 of 1962
Appeal from the judgment and order dated March 121962 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 section 151 of the Uttar Pradesh Private Forests Act VI of 1949
This trial com menced on February 11 1959 on a complaint by the District 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 vs State1 on which the Additional Sessions Judge had relied
Beg J had taken the same view in a subsequent case also Harbans Singh and others vs State2 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 section 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 152 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 section 530p 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 section 151 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 AIR 1952 All873
2 AIR 1953 All179
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 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 section
2 which says that offences under section 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 sections 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
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 section 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
Here sub section
2 of section 15 mentions the courts by which offences under section 151 are triable and section 291 excludes the application of the second part of the Second Schedule
The words of sub section
1 of section 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 section 151 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 section 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 section 29 redundant and useless at least in those cases where the second part of the Second Schedule applies
What section 152 does is to prescribe a particular court and in view of the words of section 291 no other court can try offences under section 151 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 section 32 do not extend as far as the punishment prescribed by section 151
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 section 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 section 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 section 15 of the Forests Act clearly show that offences under section 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 vs State1 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 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 section 291 the trial of these cases ought to have been before a court designated in section 152 and as the trial was before a Magistrate who was not empowered to try the offence the proceedings were rightly declared void under section 530p 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 AIR 1953 All


Summary:
On a complaint by the District Magistrate the respondents were put on trial for an offence under section 151 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 section 151 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 Third Class and this excludes jurisdiction of any superior Magistrate
On appeal by certificate Held i The words of the second sub section of section 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 section 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 section 152 does is to prescribe a particular court and in view of the words of section 291 no other court can try offences under section 151 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 200after 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 section 291 the trial of these cases ought to have been before a court designated in section 152 and as the trial was before a Magistrate who was not empowered to try the offence the proceedings were rightly declared void under section 530p and of the Code of Criminal Procedure
Jaddu vs State AIR 1952 All372 and Harbans Singh vs State AIR 1953 All 179 referred to