A. M. ANTONY v. FOREST RANGE OFFICER — 1977 DIGILAW 112 (KER)

Judgment :- 1. The fourth accused in C. C. No. 13 of 1972 on the file of the Judicial Magistrate of I Class, Kalpetta, who has been convicted for offences punishable under S.27 (2) (c) and 27 (1)(g) of the Kerala Forest Act and sentenced to pay a fine of Rs. 300/-in default to undergo simple imprisonment for two months on the first count and to undergo simple imprisonment till the rising of the court and to pay a fine of Rs. 700/-in default to undergo simple imprisonment for six months on the second count, is the petitioner. On appeal, the convictions and sentences passed against the petitioner were confirmed. 2. The case against the petitioner is that at about a. m. on the night of January 18, 1972, he along with six others trespassed into the Kuppadi reserved forest within the Battery Forest Range and cut a rosewood tree and thereby caused loss of Rs. 4000/ to the Government. 3. The petitioner denied the commission of any offence as alleged and pleaded not guilty. 4. The main contention raised before the courts below and this Court on behalf of the petitioner was that the prosecution has failed to prove that the scene of offence is an area forming part of a reserved forest. It is seen from the judgment of the appellate court that a certified extract from the Fort St. George Gazette, Madras, dated 31st March, 1885, containing a notification issued in 1885 under the Madras Forest Act (Act V of 1862) notifying Kuppadi Forest as a reserved forest, was produced before the trial court. But no such notification is seen marked and proved before the trial court, although it has stated in its judgment that a notification issued under the Madras Forest Act dated 3131885 was produced before it by the complainant. Probably the trial court was under the impression that what was produced before it was the original gazette itself containing the notification. It is now admitted before this Court by the State that what was produced before the trial court was only a copy of the notification contained in the Fort St. George Gazette dated 313 1885. Probably the trial court was under the impression that what was produced before it was the original gazette itself containing the notification. It is now admitted before this Court by the State that what was produced before the trial court was only a copy of the notification contained in the Fort St. George Gazette dated 313 1885. The learned advocate appearing for the petitioner strongly pressed for quashing the convictions and sentences passed against the petitioner on the short ground that the prosecution has failed to prove the notification said to have been published either under the Madras Forest Act or under the Kerala Forest Act constituting the area in question as a reserved forest and that in the absence of any evidence on the point, the petitioner is entitled to an acquittal. Admittedly neither the gazette containing the alleged notification under the Madras Forest Act nor a certified copy of the said notification has been tendered in evidence and proved in this case. No notification under S.19 of the Kerala Forest Act has so far been issued. But by virtue of S 85 (3) of the Kerala Forest Act any notification issued under the enactments repealed under sub-section (1) of the said section shall be deemed to have been respectively prescribed, made, conferred and issued thereunder till new rules and enactments are made under the various sections of the Kerala Forest Act. It is surprising and regrettable that m spite of the fact that the petitioner had been contending at the earliest point of time before the trial court that there was no notification constituting the area in question as a reserved forest and that scene of offence did not form part of such a forest, the prosecution failed to produce such a notification or a certified copy of it and mark and prove the same according to law. No question has been put to the petitioner when he was examined under S.342 of the Code of Criminal Procedure, 1898, bringing to his notice that a copy of the notification bad been produced by the complainant. It is not proper or fair to rely on a material circumstance which has not been put to an accused when examined under S.342 of the Code of Criminal Procedure (S. 313 of the Code of Criminal Procedure, 1973) in support of his conviction. It is not proper or fair to rely on a material circumstance which has not been put to an accused when examined under S.342 of the Code of Criminal Procedure (S. 313 of the Code of Criminal Procedure, 1973) in support of his conviction. No witness examined on the prosecution side has proved any notification or copy of any notification in this regard. The petitioner has been thereby deprived of an opportunity to cross-examine the witnesses with regard to the genuineness or validity of the document said to have produced before the trial court and also to adduce counter evidence, if any. The same point was taken by the petitioner before the appellate court also, which appears to have proceeded on a wrong potion that oral evidence is sufficient to prove this point. It is again regrettable that even at this stage before the appellate court, the Public Prose-cuter did not make any attempt to cure this defect. Before a person can be held guilty under S.27 of the Kerala Forest Act, it has to be proved that the act complained of was done in a reserved forest. This is an important ingredient of the offence S.57 of the Evidence Act speaks of the relevant provision of law on the point. There are certain notifications which a court is entitled to take judicial notice of The notification in question is not one coming under this category. The question whether a court is entitled to take judicial notice of notifications of this nature has come up for consideration before this Court in a number of cases. This Court in Pyli v. State of Kerala (1966 KLT. 102) has held that it was the duty of the prosecution to have established one of the ingredients of the offence, viz , that the act complained of was done in a forest constituted as a reserved forest by the issue of a notification under S.19 of the Act and by the publication of the same in the Gazette, either by the production of the Gazette or by a certified copy of the notification and adduce evidence of the publication of the same in the Gazette and that no other evidence is admissible in the case. In Executive Officer v. Bharathan (1967 KLT. In Executive Officer v. Bharathan (1967 KLT. 161) a Division Bench of this Court, while dealing with notification coming under S.91 of the Madras Village Panchayats Act, 1950 and S.96 of the Kerala Panchayats Act, 1960, following the decisions in Pyli v. State of Kerala (1966 KLT. 102) and Chandrasekharan v. State (1966 KLT. 638) held that a court is not entitled to take judicial notice of notifications of this nature issued by the Government. It is clear from these decisions that notifications of this nature are not matters for judicial notice, but for proof. Although the correctness of these decisions was canvassed before a Full Bench (Executive Officer v. Devassy 1970 KLT 991), the Full Bench, after referring to these decisions, viz , Pyli v. State of Kerala (1966 KLT. 102), Chandrasekharan v. State (1966 KLT. 638) and Executive Officers. Bharathan (1967 KLT. 161), observed that the first of these deals with a notification under S.19 of the Kerala Forests Act, 1961, declaring a particular area to be a reserved forest; the second deals with a notification fixing a maximum price under the Essential Commodities Act; and the third with a notification including a trade within the schedule of dangerous trades in the Madras Village Panchayats Act. The notification that came up directly for consideration before the Full Bench was one bringing a law into force. The Full Bench held that the provision concerned in the case being in fact a law in force, it was not for the lower court to hold the contrary on the ground that the notification had not been tendered and proved in evidence. It was also observed by the Full Bench in this case that bringing a law into force seems to be a legislative rather than an executive function, and that being so, a court is bound to take judicial notice of a notification bringing a law into force just as much as it is bound to take judicial notice of a statute or a rule made thereunder. While referring to the three decisions mentioned above, the Full Bench observed as follows: "Whether notifications like these are legislative, or albeit statutory, essentially executive in character is a matter on which two views seem possible and on which we do not feel called upon to pronounce, although it would appear that there is much to be said for the view that the second and third are legislative in character." This indicates that a notification of the nature in question dealt with in Pyli v. State of Kerala (1966 KLT. 102) was executive in character and was one which courts cannot take judicial notice of under S.57 of the Evidence Act. I think it is necessary and appropriate, in the circumstances, to extract the following observation made by Agarwala C. J. in Mansid Oraon v. The King (AIR. 1951 Patna 380), so that at least hereafter those who are in charge of the prosecution of cases of this nature would be alert and vigilant: "Neither the Public Prosecutors nor the magistracy seem to take the slightest care to bring on to the record those notifications and orders which are essential for proving that the accused has acted in contravention of the law. Until they do so, it seems to be a waste of public time and money to prosecute at all, because whenever convictions are challenged in this Court they have to be set aside when there are omissions of this nature." In this case, as stated already, the prosecution has failed to prove that the scene of offence is part of a reserved forest as notified under the Madras Forest Act or under any other statute Therefore, the convictions and sentences passed against the petitioner cannot be sustained. In the result, this revision petition is allowed, the convictions and sentences passed against the petitioner are set aside and he is acquitted of all the offences with which he was charged. Fine, if any, paid will be refunded to the petitioner. Allowed.