# STATE OF UTIAR PRADESH v. SABIR ALI AND ANR

- **Citation:** [1964] 7 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 1962-03-12
- **Case number:** CRIMINAL APPEAL No. 193 of 1962
- **Bench:** M. Hidayatullah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-utiar-pradesh-v-sabir-ali-and-anr-3143
- **Pages:** 6

## Headnote

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 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 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 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 ditfered 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 sentenc~ passed on the respondents 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 Magistrate 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 Schedule 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 o

## Text

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 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 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 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 ditfered 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 sentenc~ passed on the respondents 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 Magistrate 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 Schedule 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 forcefully illustrated in
this case. An appeal would have laid against the same decision
if the Magistrate had not been given the ]:)owers of a First Class
Magistrate during the trial. The respondents were robbed of
a right of appeal. In any event. in vi"w of the clear words of
s. 29(1r, the trial of these cases onght to have been before a
court designated in s. 15(2) and as the trial was before a Magistrate who was not empowered to try the offence the proceedings
were rightly declared void under s. 53G(p) and of the Code of
Criminal Procedure.
J addu v. State, A.LR, 1952 All.872 and Ilarbans Singh v.
State, A.LR 1953 All.179, referred to.
CRIMINAL APPELLATE JURISDICTION: CRIMINAL APPEAL
No. 193 of 1962. Appeal from the judgment and order dated
March 12, 1962 of the Allahabad High Court (Lucknow Bench)
at Lucknow in Criminal Reference· No. 21 of 1961.
0. 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 s. 15(1) of the Uttar
Pradesh Private Forests Act (VI of 1949). This trial commenced on February II, 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 removin_g it without ob~aining permission from the competent authority and that agamst -respondent No. 2 was that he felled the tree and removed it. The
complaint was transferred from one Magistrate to another
-'
7 S.C.R.
SUPREME COURT REPORTS
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 o~ him.
Thereafter he pronounced judgment m the case and tindmg
respondents guilty he sentenced them to pay a fine
of
Rs. 50 /. each or to undergo simple imprisonment for
one month. The respondents filed an appeal before the Addi·
tional Sessions Judge, Bahraich which was later converted into
a revision. Th.e 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 v. State,(') on which the Additional Sessions Judge had
relied. Beg, J. had taken the same view in a subsequent case
also-Harbans Singh and others v. State.(') 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 S. 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.
.
:-Vhic.h of the lwo views is the right one is the short question m this appeal. Section 15(2) 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 i~ the present case was by a Magistrate of the First
Class, and 1f there was no jurisdiction in him to try the offence
then the proceedings ~er_e rightly declared void under s. 530(p)
of. t~e Code of Cnmmal Procedure. According to the
op1mon of Mr. Justice Nigam which finds support from the
order of reference made ~y Mulla, J., there is nothing to prevent the First Class Magistrate from trying an offence under
s. 15( _!) .of the Act, because under Schedule III of the Code
of Cnmmal Procedure the ordinary powers of a Magistrate
First Class include the. ordinary powers of a Magistrate of th~·
Second ~l~ss .. ~ccordmg to the other view, the Forests Act
co~fers 1unsd1cllon .on Magistrates of the Second and the·
Thir~ Class and this excludes jurisdiction of any superior
Magistrate.
(') A.LR. 1952 All.873.
(') A.I.R. 1953 All.179.
1964
State of Uttar
Pradesh
v.
Sabir Ali di Anr.
1964
fl":::JJ.""'
v.
flabir .Ali do .AM
Bidayotullah, J
438
SUPREME COURT REPORTS
[1964]
Section 15 of the Forests Act reads as follows:-
"15 Offences under this Chapter and trial of such
offences and penalties thereof: -
(l) 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 For est 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-s. (2) which says that offences under s. 15 shall be triable
by a Magistrate of the Second or Third Class. It does not 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 ss. 28 and 29 of the Code
-0f 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''.
"29. Offences under other laws-(l) 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.
-
7 S.C.R.
SUPREME COURT REPOR'IS
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
s. 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-s. (2) of s. 15 mentions the
courts by which offences under s. 15(1) are triable and s. 29(1)
excludes the application of the seco'nd part of the Second Schedule. The words of sub-s. (I) of s. 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 s. 15(1) 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 s. 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 s. 29
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 (I) no other court can try offences under s. 15 (!) 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
1964
Stale of Utla•
Pradesh
v.
Sabir .Ali ~ Anr ..
Hidayatullah, .J •.
1964
Sla'.e of U ttar
Pradesh
v.
.
Sabir~Ali & .Anr.
Hidayatullah, J.
440
SUPREME COURT REPORTS
(1964]
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 prescribing that the Magistrates of the Second and the Third Class
can try subsequent offences because their powers under s. 32
do not extend as far as the punishment prescribed bys. 15(1).
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 s. 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 s. 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.
fo our opinion. therefore, the scheme of of the Code
read with the provisions of s. 15 of the Forests Act clearly
show that offences under s. 15 are not triable by any Magistrate as it would be if the Second Schedule were applicabl~.
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 or a fine uf
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
v. State(') 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. Jn any event, in
view of the clear words of s. 29(1), the trial of these cases
ought to have been before a court designated in s. 15(2) and
as the trial was before a Magistrate who was not empowered
-
to try the offence the proceedings were rightly declared void
under s. 530(p) of the Code of Criminal Procedure. We accordingly hold that the decision under appeal was correct. The
appeal fails and is dismissed.
Appeal dismissed.
('l A.LR. 1953 All. 179.