( 1 ) THIS is a reference made by the District Magistrate of Dehra Dun.

( 2 ) THE applicant Deb Ram was prosecuted by the Forest Department under Section 26 (1) (a) and (h), Forest Act, on the ground that he was found cultivating land situate in Majog Compartment no. 7 which, by a notification dated 9-12-1924, had been declared a Government reserved forest. The defence was that the land had been in possession of the applicant and his forefathers for a very long time and had been continuously cultivated by them and that, therefore, no offence was committed by the applicant in continuing to cultivate the land. The accused was tried summarily by the Sub-Divisional Magistrate, Chakrata. The learned Magistrate did not reject the defence case that the land had been for a long time under his cultivation. But it was observed that even if the accuseds conteation, viz. , that the land had been with his family for several decades be accepted, the rights of the tenants were extinguished by the issue of the notification aforesaid and thereafter the possession of tha accused became illegal. The applicant was, therefore, convicted under Section 26 (1) (a) and (b), Forest Act, and sentenced to pay a fine of Rs. 50 and in default of payment to undergo rigorous imprisonment for one month. The applicant went up in revision to the District Magistrate who made this reference, upon the ground that the provisions of section 342, Criminal P. O. were not observed by the trial Court and further because the case was one which should more appropriately have been tried as a regular case. The learned magistrate recommended that the order of the trial Court be set aside and the case be remanded for trial afresh.

( 3 ) THE Magistrate examined the accused at some stage or the other. The examination is recorded in the following words : "pleaded not guilty. Has filed written statement and would produce defence. "

( 4 ) SECTION 342, Criminal P. C. is a general provision applicable to all prosecutions. There is a difference of opinion on the point whether this provision applies to summons cases and summary trials. The view of this Court, however, has been that it does apply to these trials. Vide Emperor v. Sia Ram, 57 ALL. 666. Section 342 requires the trial Court, after the prosecution evidence has been recorded, to examine "generally on the case. " This expression "generally on the case " has been interpreted in some cases as referring to questions of a general nature relating to the case. In other cases, it has been held that the accused should be asked to explain, if he wishes to do so, the salient points appearing in the evidence against the accused. After the Privy Council decision in Dwarka Nath Verma v. Emperor, A. I. R. (20) 1933 P. C. 124, it must be held that the later view is correct. This was not done in the present case. The effect of the omission to examine the accused, however, does not vitiate the trial altogether. The defect is curable by virtue of the provisions of Section 537, Criminal P. C. unless the accused had been prejudiced by the omission. In the present case, I am unable to say that the accused was prejudiced by the omission of the trial Court to examine him "generally on the case. "

( 5 ) THIS, however, does not conclude the matter. The applicant must be taken to have been found to be in possession and cultivating the land for a long time. The question is whether in cultivating the land he has committed an offence under Section 26 (1) (a) or (h) of the Indian forest Act. Under Section 4 of the Act, whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the official Gazette, declaring that it has been so decided in respect of a specified piece of land. After the issue of the notification, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on beh