The cutting of fruit trees is not an offence under Section 404 of the Himachal Pradesh Municipal Corporation Act, 1980, as Rule 4 of the Himachal Pradesh Municipal (Prevention of Soil Erosion and Hill Side Safety) Rules, 1975, excludes fruit trees purely grown for horticultural purposes from the definition of 'tree of the prescribed class'.

V. D. Misra, C. J.—Shri Prem Chand, a Forest Guard of Municipal Corporation, Simla (the Corporation), has Khalini beat. On 15th March, 1983 he was patrolling with a "B. O." and Pratap Singh, Forest Guard. In the compound of ‘Ravensdale, Chhota Shimla, he saw that the owner of the house had kept one apple tree, one miscellaneous tree and 9 smaliysaplings of apple in the shed. He reported the matter. In the report it was stated : "accused K. C. Khanna, s/o Kedar Nath, r/o Ravensdale, Chhota Shimla-2 has been apprehended while causing damage to the jungle." It may straightaway be noticed that the report is on a form printed in Hindi and this Forest Guard did not strike out alternatives which are printed in the form. In this report the name of one Ravi Kumar of Ladies Park, the Mall Shimla, is mentioned as a witness. At the place where the signatures of the accused are required to be obtained, it is written : "was not present". In other words Shri K. C. Khanna was never contracted by this Forest Guard nor was he present at the time when the Forest Guard visited the said place. A formal complaint dated 19-5-1983 by the Tree Officer, who has been delegated and was exercising the powers of the Commissioner of the Corporation, was filed. Only Prem Chand, Forest Guard, and Ravi Kumar were mentioned as the witnesses. It was alleged that the aforementioned trees were cut in contravention of the provisions of Chapter XXII of the Himachal Pradesh Municipal Corporation Act, 1980 (the Act) and in contravention of the provisions of the Himachal Pradesh Municipal (Prevention of Soil Erosion and Hill Side Safety) Rules, 1975, It was prayed that the accused be summoned under Section 416 of the Act and tried in accordance with law. When this matter came up before Shri Ram Lal Azad, Judicial Magistrate IInd Class, Shimla, he directed the criminal Ahalmad "to check-up and put up on 27-5-1983." The Ahalmad reported : "this challans of Forest Act filed by the A P. P. Forest which is in time. Challans filed with supurdnama accordingly. Submitted please." On 27-5-1983 Shri D. S. Mantan, Range Officer, was present for the complainant. The Magistrate ordered : "Report seen. The challan be registered, .Accused be summoned for 27-6-1983".

2. Prem Chand, Forest Guard, again decided to look into the compound of the Ravensdale on 20th March, 1983. He found two plum trees of class IV and two small apple saplings to have been cut and kept in the store. Prem Chand again put up a report about it on the similar printed form and in the same manner. This time one Gulam Kadir Naik was the witness. He referred the matter to "B. O." who put it up before the Tree Officer for filing a com plaint under Section 416 of the Act. It is also dated 19-5-1983. The procedure followed was exactly the same as in respect of the earlier complaint and the same Magistrate issued summons to Shri K. C. Mhanna as accused.

3. Now, the summons were issued to Shri K. C. Khanna, in respect of an offence under Section 33 of the Indian Forest Act. When this matter came to my notice, I decided to exercise my revisional powers and issued notices to the Corporation as well as to Shri K. C. Khanna as it appeared to me that the Magistrate had summoned Shri K. C. Khanna as an accused in routine without going through the record and without applying his mind.

4. Mr. D. K, Khanna, learned counsel for the respondent Shri K C Khanna, pointed out that even if all the facts stated in the complaint are accept ed as correct, on case was made out. He submitted that the cutting of fruit trees does not fall within the mischief of Section 404 read with Section 416 of the Act, However, Mr. Pratap Chand, learned counsel for the Corporation submits that all kinds of trees and even the shrubs can neither be pruned nor

5. In order to appreciate the rival contentions of the parties it is necessary to refer to relevant provisions of law in detail. Before the Municipal Corporation of Simla was formed under the Act,