Sri Lanka Law Reports
(1980) 2 S. L. R.
Attorney-General v. Podiappubamy
COURT OF APPEAL.
SOZA, J. AND ABFUL CABER, J.
S.C. (C.A.) 99/78—M. C. NTEAWERATTYA 2650.
June 11, 1930
forest Ordinance (Cap. 451)—Regulations 2 and 9 framed under section20(1)—Colonization Officer—Authority to enter prosecution underForest Ordinance—Authorization of Government Agent for prosecution—Land Development Ordinance, section 168.
When two different charges under two Ordinances are availableto the prosecution, there is no reason w.'.v the prosecution should nothave the right to choose one of the Ordinances for the purpose of thecharge, in an appropriate case.
A person who is a Colonization Officer and a Public Officer withtothe meaning of the Criminal Procedure Code is entitled to enter a prose-cution under the Forest Ordinance and to conduct the prosecution tothe Magistrate’s Court.
The authority of the Government Agent is not required for acharge under regulation 2 framed under section 20(1) of the ForestOrdinance.
Forest land remains forest land wit’in the meaning of the ForestOrdinance despite several years of cultivation, if such cultivation tounauthorised.
Cases referred to
Sidtan v. The Kachc.heri Surveyor, (1969) 74 N.L.R 287.
Lovell v. Sinnadurai, (1962) 64 N.L.R. 234.
APPEAL from the Magistrate's Court, Nikaweratiya.
D, P. Kv.marasinghe, State Counsel, for the appellant.Accused-respondent absent and unrepresented.
Cur. adv. vuU.
June 19, 19f0.
ABDUL CADEIt, J.
The accused was charged under Regulations 2 and 9 framed,under section 20 (1) of the Forest Ordinance. Evidence was ledof an offence committed under Regulation 2 which reads asfollows
“No person shall cut, clear or set fire toany forest
without a permit or otherwise than in accordance with theconditions of such permit. ”
There is the evidence of the Kachcheri Surveyor, Arasakula-ratne, who went to the land and prepared the survey plan, super-imposed it on the Crown plan and produced them as PI and P2to establish the fact that the land involved was, in fact, a partof the forest. The Magistrate acquitted the accused for variousreasons.
The Magistrate held that there was no evidence that thisaccused broke up the soil of the land in this case for the purposeof cultivation, He was influenced by the fact that all the witnessesagreed that this was a clearing where there had been an old
A-G v. Podiappuhamy (Abdul Cader, J.)
cultivation. Forest land yet remains forest land despite severalyears of cultivation, if it is unauthorized. We find that witnessHerath has stated:
“ Ramiah mema idama udalu gamin sitiya. Ohu udallekaran udalu geva. ”
which means that the. accused was seen actually clearing theland. Section 2 makes it an offence to clear any forest land whichwill include the soil, too.
The Magistrate went on to hold that this action should havebeen filed under section 168(1) of the Land Development Ordi-nance. But, in view of the proviso contained in that section, itcould well be that the prosecution thought that it would bemore appropriate to frame the charge under the Forest Ordi-nance. When two different charges under two Ordinances areavailable to the prosecution, there is no reason why the prosecu-tion should not have the right to choose one of the two Ordi-nances for the purpose of the charge.
In the case of Sultan v. The Kachcheri Surveyor, (1) Samera-wickrame, J. held :
“ Where the real object of the prosecution under the ForestOrdinance is to protect Crown land the prosecution mayproceed under that Ordinance even though there is a disputeas to the Crown’s title to the land. ”
In this case, there is no dispute as regards title.
The Magistrate then referred to sections 58 and 59 of the ForestOrdinance and held that since the prosecution was launched bya colonisation officer, this charge cannot be maintained. Section78 defines a forest officer to include, inter alia, ‘ all persons
appointedto discharge any function of a forest officer.’
But there is no evidence that a colonisation officer has beenappointed to discharge the functions of a forest officer.
However, counsel refers me to the case of Lovell v. Sinnadurai(2) where T. S. Fernando, J. held :
“ The complainant, being a forest officer within the mean-ing of the Forest Ordinance and a Public Officer within themeaning .of the Criminal Procedure Code, was in every wayentitled to enter prosecution and to conduct it in the Magis-trate’s Court. The learned Magistrate was in error, if I maysay so with respect, when he stated that “ an officer of theForest Department cannot appear in court except throughthe Government Agent or the Assistant Government Agentas contemplated in sections 37, 38 and 39 of the Forest Ordi-nance. ”
Sri Lanka Law Reports
(1980) 2 S. L. R.
The Court is entitled to presume that the Colonization Officeris a Public Officer and, therefore, that portion of the judgementquoted, namely that a Public Officer, within the meaning of theCriminal Procedure Code, is entitled to enter a prosecution underthe Forest Ordinance will apply to the prosecuting officer in thiscase.
■ Another ground urged by the Magistrate was that the Govern-ment Agent has not authorized the prosecution though he hassigned the report to the Magistrate.
Although the Magistrate has not stated in his order under whatsection of the Forest Ordinance he hi.s held that the GovernmentAgent’s authority was required, in the notes of the address byCounsel, there is a statement that his attention was drawn tosection 37 of the Forest Ordinance. Apparently, it is because ofsections 37, 38 and 39, the Magistrate has come to the conclusionthat the Government should have authorized the prosecution ofthe accused, but an examination of section 37 would indicate thatit is only where a forest offence has been committed leading tothe seizure of productions by any forest officer or a police officerthat the Government Agent is required to forward the reportto the Magistrate in terms of section 37. The charge in thiscase has no relation to section 37 of the Forest Ordinance.
Our attention has not been drawn to any other section underwhich the authority of the Government Agent would be requir-ed for the prosecution in a case of this nature.
I, therefore, hold that there is nothing in the law to preventa cultivation officer, being a public servant, from institutingproceedings under the Forest Ordinance when the charge relatesto one of clearing or cutting a forest and that the authority ofthe Government Agent is not required for a charge under Regu-lation 2. On the evidence placed before the Magistrate that thisaccused was seen clearing the land which was not denied by theaccused, who did not give evidence, the accused should have beenconvicted of the offence with which he was charged. I, therefore,set aside the order of acquittal and convict the accused of theoffence with which he is charged.
The record is to be returned to the Magistrate who will imposean appropriate sentence.
SOZA, J.—I agree.