State of Uttar Pradesh vs Sabir Ali and Anr

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 193 of 1962

Decision Date: 24 March 1964

Coram: M. Hidayatullah, N. Rajagopala Ayyangar

In this matter, the Supreme Court recorded that the State of Uttar Pradesh had filed a petition against Sabir Ali and another respondent. The judgment was delivered on 24 March 1964 by a bench consisting of Justices M. Hidayatullah, N. Rajagopala Ayyangar and M. Hidayatullah. The dispute arose under the Uttar Pradesh Private Forests Act, 1949, specifically section 15(1), which prohibited the sale, felling and removal of certain trees without permission from the competent authority. According to the complaint lodged by the District Magistrate, the first respondent had sold a tamarind tree to the second respondent for the purpose of felling and removing it, while the second respondent had actually felled and removed the tree. The complaint was initially transferred among several magistrates and eventually reached Mr. Upadhya, who was a Magistrate of the Second Class. After taking evidence and examining both respondents, Mr. Upadhya was vested with the powers of a First‑Class Magistrate. He then delivered a judgment finding both respondents guilty and sentenced each of them to a fine of Rs 50 or, in default, simple imprisonment for one month.

Following the judgment, the case proceeded on appeal and was later converted into a revision. The Additional Sessions Judge made a reference to the High Court, recommending that the trial before the First‑Class Magistrate be set aside on the ground that the magistrate lacked jurisdiction to try the offence. The reference was initially considered by Justice Mulla, who held that the trial was proper but, because of conflicting decisions of the same Court, referred the matter to a larger bench. The Division Bench was divided. Justice Nigam opined that the trial was valid, relying on Schedule III of the Code of Criminal Procedure, which conferred on a First‑Class Magistrate all ordinary powers of a Second‑Class Magistrate. In contrast, Justice Singh disagreed with that view. Subsequently, Justice Verma sided with Justice Singh and consequently quashed the conviction and sentence. The reasoning supporting Justice Nigam’s position, which was also reflected in Justice Mulla’s order of reference, emphasized that nothing in the Private Forests Act barred a First‑Class Magistrate from trying an offence under section 15(1), because the ordinary powers of a First‑Class Magistrate included those of a Second‑Class Magistrate. The opposing view contended that the Act expressly granted jurisdiction only to Magistrates of the Second and Third Classes, thereby excluding any superior magistrate from exercising jurisdiction over the offence.

In this appeal the Court held that the words of the second sub‑section of section 15 of the Uttar Pradesh Private Forests Act are not rendered ineffective by the ordinary powers prescribed for magistrates, and that invoking Schedule III of the Code of Criminal Procedure would make the provisions of section 29 of that Code redundant and useless at least in those cases where the second part of the Second Schedule applies. The effect of section 15(2) is to prescribe a particular court for the trial, and, in view of the language of section 29(1), no other court may try offences falling under section 15(1) even though such courts might possess powers superior to those of magistrates of the Second and Third Class. Because the Second Schedule itself excludes courts for the trial of offences under laws other than the Penal Code, the Third Schedule cannot indirectly achieve the same result; consequently the Third Schedule must be understood as defining general powers rather than creating jurisdiction to try offences that the Second Schedule already allocates.

The Court further observed that the scheme of the Code, read together with the provisions that would make an offence triable by any magistrate if the Second Schedule were applicable, means that the offences listed in the second sub‑section are triable only by the magistrates specifically named therein. A strong reason for this interpretation is that a conviction handed down by a magistrate of the Second or Third Class is appealable, whereas a conviction by a magistrate of the First Class accompanied by a fine of rupees 50 or a fine not exceeding rupees 200 after a summary trial is not appealable. This circumstance must be taken into account, and the present case illustrates it forcefully. Had the magistrate not been vested with the powers of a First Class magistrate during the trial, an appeal could have been filed against the same decision; therefore the respondents were deprived of their right of appeal. In any event, the clear language of section 29(1) requires that the trial be conducted before a court designated in section 15(2), and because the trial was before a magistrate who lacked authority to try the offence, the proceedings were correctly declared void under section 530(p) of the Code of Criminal Procedure. The Court referred to the decisions in Jaddu v. State, AIR 1952 All 372 and Harbans Singh v. State, AIR 1953 All 179. The judgment was delivered in Criminal Appeal No. 193 of 1962, an appeal by certificate from the Allahabad High Court (Lucknow Bench) dated 12 March 1962, which had set aside the trial of the respondents. The appellant was represented by counsel, while the respondent did not appear. The judgment was pronounced on 24 March 1964 by Justice Hidayatullah.

In this case the respondents were tried for an offence punishable under section fifteen of one ninety‑four nine of the Uttar Pradesh Private Forests Act. The trial began on the eleventh of February, nineteen‑fifty‑nine after the District Magistrate of Bahraich lodged a complaint. The allegation against the first respondent was that he had sold a tamarind tree to the second respondent for the purpose of felling and removing it without first obtaining the necessary permission from the competent authority; the allegation against the second respondent was that he had actually felled the tree and removed it. The complaint was initially assigned to one magistrate, then transferred to another, and finally came before Mr T B Upadhaya, who at that time was a magistrate of the second class. After Mr Upadhaya recorded the evidence and examined both respondents, his jurisdiction was elevated to that of a magistrate of the first class. He then delivered a judgment, found both respondents guilty, and sentenced each of them to a fine of five hundred one rupees or, alternatively, to simple imprisonment for one month. The respondents appealed the decision to the Additional Sessions Judge of Bahraich, and that appeal was subsequently converted into a revision. The Additional Sessions Judge referred the matter to the High Court, recommending that the trial conducted by a magistrate of the first class be set aside because, in his view, that magistrate lacked jurisdiction to try the offence. The reference was heard by Justice Mulla, who disagreed with the opinion expressed earlier by Justice Beg, which had relied on the decision in Jaddu and others v State. Justice Beg had also taken the same position in a later case, Harbans Singh and others v State. Justice Mulla held that the trial had been proper, but because the earlier rulings stood in his way he referred the matter to a larger bench. The larger bench, composed of Justices B N Nigam and S D Singh, differed among themselves: Justice Nigam considered the trial to be valid, whereas Justice Singh did not share that view. The matter was then placed before Justice Verma, who concurred with Justice Singh. Consequently, the conviction and sentence imposed on the respondents were set aside. Nonetheless, the High Court certified the case as fit for appeal, and the present appeal has been filed. The short question presented is which of the two conflicting views should prevail. Section fifteen paragraph two of the Uttar Pradesh Private Forests Act authorises magistrates of the second and third class to try offences under paragraph one. Because the trial here was conducted by a magistrate of the first class, the issue is whether a first‑class magistrate possessed jurisdiction. If he lacked jurisdiction, the proceedings would be void under section five‑three‑zero paragraph p of the Code of Criminal Procedure. Justice Nigam’s opinion, which is supported by Justice Mulla’s reference, holds that nothing prevents a first‑class magistrate from trying the offence, whereas the alternative view contends that the Act restricts jurisdiction solely to magistrates of the second and third class, thereby excluding any superior magistrate.

In one line of argument, it was submitted that a Magistrate of the First Class could try an offence punishable under section 15(1) of the Forests Act because Schedule III of the Code of Criminal Procedure expressly provides that the ordinary powers of a First‑Class Magistrate include those of a Magistrate of the Second Class. The opposing submission contended that the Forests Act itself limits jurisdiction to Magistrates of the Second and the Third Class, thereby excluding any superior magistrate from trying such offences. The authorities cited in support of this view were the decisions reported in A.I.R. 1952 All. 873 and A.I.R. 1953 All. 179.

Section 15 of the Uttar Pradesh Private Forests Act was read out in full. Sub‑section (1) imposes a fine of up to one hundred rupees for the first contravention of the provisions of the Chapter or for deviation from a sanctioned working plan without prior permission of the Forest Officer, and for the second or any subsequent offence it provides either a fine not exceeding one thousand rupees or simple imprisonment of up to three months, or both. Sub‑section (2) states that offences under this section shall be triable by a Magistrate of the Second or Third Class, and that proceedings may be initiated on a complaint made by the landlord of the notified area or forest, by any right‑holder of such area, by the Forest Officer, or by any officer specially empowered by the Provincial Government. The Court identified the interpretative issue as whether the wording “triable by a Magistrate of the Second or Third Class” excludes a First‑Class Magistrate because it does not use the broader phrase “any Magistrate” nor specifically mention a First‑Class Magistrate. The Court held that the answer lies in sections 28 and 29 of the Code of Criminal Procedure. Section 28 deals with offences under the Indian Penal Code and lists the courts competent to try them, while section 29 governs offences under any other law, stating that where a law itself mentions a particular court, that court must try the offence; only when no court is mentioned may the eighth column of the Second Schedule be consulted. The scheme of the Code thus provides separate provisions for penal offences and for offences under other statutes, and the presence of a specific mention of Second‑ and Third‑Class Magistrates in section 15(2) therefore excludes a First‑Class Magistrate from jurisdiction.

The Court observed that the Criminal Procedure Code indicated the appropriate court for trial in the eighth column of the Second Schedule. The first part of that Schedule dealt with offences under the Indian Penal Code, while the second part covered offences under any other law. The final entry of the Second Schedule provided that offences punishable with imprisonment of less than one year or with a fine only could be tried by “any Magistrate.” If the matter were governed solely by that entry, a Magistrate of the First Class would unquestionably be included. However, section 29 stipulated that offences under any other law must be tried by the court expressly mentioned in that law, and only in the absence of such a specification could the eighth column of the Second Schedule be applied. Sub‑section (2) of section 15 listed the courts by which offences under section 15(1) were triable, and section 29(1) excluded the operation of the second part of the Second Schedule. The Court stressed that the wording of sub‑section (1) of section 29 was peremptory and allowed no alternative construction; it declared that, subject to other provisions of the Code, any offence under any other law had to be tried by the court named in that law. Consequently, a case falling under section 15(1) could be tried only by the two courts named therein – namely the Magistrates of the Second Class and the Third Class – and no other Magistrate possessed jurisdiction. The appellant relied on the phrase “subject to the other provisions of the Code” and invoked the Third Schedule, but the Court noted that the Third Schedule concerned only the ordinary powers of Magistrates under the Criminal Procedure Code. The provisions of the second sub‑section of section 15 were not rendered ineffective by the general powers granted in the Third Schedule. To invoke Schedule III would make the provisions of section 29 redundant and ineffective, especially where the second part of the Second Schedule applied. Section 15(2) precisely prescribed the particular courts, and in view of the language of section 29(1) no other court could try offences under section 15(1), even if those courts possessed broader powers than the Second‑ and Third‑Class Magistrates. Since the Second Schedule, which assigned courts for trials of offences under statutes other than the Penal Code, was excluded by section 29, the Third Schedule could not indirectly achieve the same result. Therefore, the Court held that the Third Schedule defined general powers and did not create jurisdiction to try offences that the Second Schedule expressly assigned. It was also noted that an argument had been raised that specifying that Second‑ and Third‑Class Magistrates could try subsequent offences was unnecessary because their powers under section 32 did not extend to the punishment prescribed by section 15(1). While that question did not arise directly, the Court indicated that it could be addressed in the following manner.

In this matter the Court identified two possible approaches. The first approach suggested that, by implication, the powers of the magistrates could be extended beyond the limits set by section 32. The second approach held that when a magistrate considered a heavier punishment appropriate, he could invoke section 349 of the Code and recommend the case to a magistrate who possessed the authority to impose a sufficient penalty, the phrase “subject to the other provisions of the Code” allowing such a step. The Court concluded that, when the scheme of the Code is read together with section 15 of the Forests Act, offences under section 15 are not triable by any magistrate if the Second Schedule were applicable. Accordingly, such offences could be tried only by those magistrates named in the second sub‑section of section 15. The Court gave weight to this conclusion because a conviction by a magistrate of the Second or Third Class is appealable, whereas a conviction by a First Class magistrate that results in a fine of rupees five hundred and one or less, or a fine of rupees two hundred after a summary trial, is not appealable. The Court noted that it might have been intended that a right of appeal be provided, and therefore the trial of these offences was limited to magistrates of the Second and Third Class. This view had been expressed by Mr. Justice Beg in Harbans Singh and others v. State (AIR 1953 All 179) and was also referred to by Mr. Justice Verma in the present opinion. The Court found that this circumstance was relevant and illustrated it by observing that an appeal would have been available to the respondents had the magistrate not been given the powers of a First Class magistrate during the trial, thereby depriving them of a right of appeal. Moreover, the Court emphasized that, in light of the clear wording of section 29(1), the trial should have been before a court designated in section 15(2); because the trial had been before a magistrate lacking the requisite authority, the proceedings were correctly declared void under section 530(p) of the Code of Criminal Procedure. Consequently, the Court affirmed that the decision under appeal was proper, dismissed the appeal, and ordered the appeal to be dismissed.