STATE OF UTIAR PRADESH versus SABIR ALI AND ANR.

Citation: [1964] 7 S.C.R. 435 · Decided: 24-03-1964 · Supreme Court of India · Bench: M. HIDAYATULLAH, N. RAJAGOPALA AYYANGAR · Disposal: Dismissed

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Judgment (excerpt)

7S.C.R. 
SUPREME COURT REPORTS 
435 
STATE OF UTIAR PRADESH 
v. 
SABIR ALI AND ANR. 
[M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.] 
Criminal Trial- Offence under Uttar Pradesh Private 
Forests Act (VI of 1949}-Provision for trial of offences only by 
Magistrate of the Second or Third C!ass-Tria! by First Class 
Magistrate-Validity of-Genera! and Special provision-Code 
of Criminal Procedure, 1898 (Act 5 of 1898), ss. 28 and 29(1). 
On a complaint by the District Magistrate the respondents 
were put on trial for an offence under s. 15(1) of the Uttar 
Pr•.desh Private Forests Act, 1949. Tile 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 obtain-
ing 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 guiJty 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 recommend-
ing 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 ditfered amongst them-
selves. 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 sentenc~ passed on the res-
pondents were set aside. 
-
Acoording 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 -Firs1j Class Magistrate from trying 
an offence under s. 15(1) of the Act, because under Schedule m 
of the Code of Criminal Procedure the ordinary powers_ of a 
Magistrate, First Class include the ordinary powers of a Magis-
trate of the Second Class. According to the olher view, the 
Forests Act confers jurisdiction on Magistrates of the Seoond 
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 s. 15- of 
the Act or not rendered ineffective by the prescription of 
the ordinary powers of the Magistrates. To call in aid Schedule 
m would render the provisions of s. 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 s. 15(2) 
does is to prescribe a particular court and in view of. the words 
of s. 29(1) no other. court oan try offences under s. 15(1) even 
though the powers of those courts may be superior to those of 
1904 
MM<lo!4 
1964 
State of Uttar 
Pradesh 
v. 
Sabir Al~ c{; Anr. 
Hidayatulla11, J. 
436 
SUPREME COURT REPORTS 
[1964) 
Magistrates of the Second and Third Class. In the Second Sche-
dule itself, which prescribes the courts for the trial of offences 
under law other than the Penal Co<!e, is exciuded, 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 
s. 15 of the Act clearly shows that offences under s. 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 thtis, 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 tne First Class 
and a sentence of fine of Rs. 50/- or under a fine of Rs. 200/-
after a summary trial is not appealable. It is a circumstance 
which must be taken into account. It is 

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