024-NLR-NLR-V-01-ALAWATUGODA-RATEMAHATMEYA-v.-KIRIWANTE.pdf
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ALAWATUGODA RATEMAHATMEYA v. KIRIWANTE.
Forest Ordinance, No. 10 of 1885, chapter IV.—Prosecution under rules of 3rdFebruary, 1887—Proof in such cases—Validity of judgment—CriminalProcedure Code, s. 372.
In a prosecution for clearing (for chena cultivation) a land at thedisposal of the Crown without a permit, in breach of a rule framed underchapter IV. of the Ordinance No. 10 of 1885, it is necessary to provethat the land is not one within a reserved or village forest; that it isat the disposal of the Crown ; that it is a chena ; that its extent andboundaries are so and so ; and that the accused cleared it.
A judgment of a criminal court should specify the offence with whichthe accused is charged, in terms of section 372 of the Criminal Procedure
HE charge against the accused in this case was that he cleared
for chena cultivation a land known as Komarikagalgawa-hena (situated at Thenpila in Walapane), at the disposal of theCrown, without a permit from the Government Agent or AssistantGovernment Agent within whose jurisdiction the land wassituated, in breach of clause 1 of the rules dated 3rd February,1887, framed under chapter IV. of Ordinance No. 10 of 1885, andthe Police Magistrate, after evidence heard, delivered judgmentas follows : “ This is Crown land under the Ordinance 12 of 1840.“ Defendant is convicted and fined two rupees and fifty cents.”On appeal (taken with leave of the Court below), Wendtappeared for-accused appellant.
The Supreme Court quashed the conviction and remitted thecase for farther evidence.
19th March, 1895. Withers, J.—
The accused has been sentenced to pay a fine of Rs. 2*50,but the judgment which precedes the sentence is defective forthis, if for no other, reason, that it does not specify the offence inthe mode required by section 372 of the Criminal Procedure Code.
P. G., Nuwara Eliya, 8,928.
Code.
Voi*. 1.
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Bat I will assume that the offence is the breach of a ralepassed on the 3rd February, 1887, in conformity with theprovisions of the 4th chapter of Ordinance No. 10 of 1885, whichforbids clearing for chena cultivation land at the disposal of theCrown without a permit, and that in violation of that rule theaccused on some day in September, 1894, cleared for chenacultivation without a permit a land of three kurunies in extent,known as Komarikagalgawahena, situated at Thenpila in Wala-pane.
Can thiB conviction be supported ? The Magistrate has giventhe accused leave to appeal from this judgment, and so I havejurisdiction to entertain the appeal. I do not know how theaccused came to obtain the leave of the Court to appeal. I canonly suppose that the Magistrate felt some doubt about thecorrectness of his decision.
Unfortunately there is not sufficient material to enable me todetermine whether the accused is innocent or guilty of the offencelaid to his charge. In the first place, no one testifies that theaccused did, as a matter of fact, clear the land above mentioned forchena cultivation. In the second place, there is no evidence thatthis land is not within a reserved or village forest; and as theserules can only relate to land at the Crown’s disposal other thanthat included in a reserved or village forest, this fact, if it be afact, is one necessary to be established by the prosecution. Then,there is not sufficient material for me to determine whether thesaid land is at the disposal of the Crown. I should like to knowsomething more about the situation of this little patch of ground,for, according to the complaint, the so-called hena is only threekurunies in extent. If this is a mistake of mine, and if the extentrelates to the extent cleared, then I should like to know what theentire extent of the land Komarikagalgawahena is. It does notfollow that every patch of ground in the Island which has foresttrees on it, or is waste, or is unoccupied or uncultivated, is pre-sumed to be the property of the Crown. Again, this parcel ofland is not said to be a chena, though bearing the name ofKomarikagalgawahena, nor is it shown to be land which can onlybe cultivated after intervals of several years.
The one witness for the prosecution deposes that it is coveredwith lantana scrub. Why should not that be cultivated everyyear ? The one witness further deposes that the land has noboundaries. I cannot conceive such a state of things. It musthave some boundaries, or at least be surrounded on all four sidesby something distinguishable from itself—path, river, road, field,or something.
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If it is contained within a larger area of Grown land, what arethe boundaries of that land ? If a piece of Grown land has noboundaries, boundary marks, or clearly defined limits of somekind, how is a person to know whether he is inside or outside ofa piece of Crown land ? Can a purely forest offence be imputedto a man, if he cannot know whether he ie acting outside or inside. a land at the disposal of the Crown ?
The inquiry into this alleged offence errs on the side of com-pendious packing. I therefore quash the conviction and remitthe case for further inquiry into the points indicated, and I trustthat the judgment will be in accordance with the 372nd sectionof the Criminal Procedure Code.