Abraham, Kurian, Mathew and Suresh v. State of Kerala and Range Officer, Mankulam

# **WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940** **PETITIONER(S)/ACCUSED** **1 ABRAHAM, AGED 48, S/O.JOSEPH, MAPPALAKAYIL, VIRIPARAI, MANKULAM-685 563, IDUKKI DISTRICT. 2 KURIAN, AGED 68 S/O.DEVASSIA, KANJIRATHINGAL, VIRIPARAI, MANKULAM-685 563, IDUKKI DISTRICT. 3 MATHEW, AGED 55, S/O.JOSEPH, PERUMBANKUTHU, MANKULAM-685 563, IDUKKI DISTRICT.** **4 SURESH, AGED 28 S/O.SREEDHARAN, KOCHUVEETTIL,PERUMBANKUTHU, MANKULAM-685 563, IDUKKI DISTRICT.** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE** ## **RESPONDENT(S)/STATE/COMPLAINANT:** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. THE RANGE OFFICER MANKULAM-685 563, IDUKKI DISTRICT.** **R2 BY ADV. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) R1 BY ADV.B.JAYASURYA,PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.4.2018, THE COURT ON 23-05-2018 PASSED THE FOLLOWING:** **Crl.MC.No. 2831 of 2013 ()** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **ANNEXURE-A.TRUE COPY OF THE OFFENCE REPORT NO.2/2013 BEFORE THE RANGE OFFICER, MANKULAM.** **ANNEXURE-B.TRUE COPY OF THE NOTIFICATION G.O.(P) NO.25/2007/F & WLD DATED 16/5/2007.** **ANNEXURE-C.TRUE COPY OF THE PROCLAMATION NO.A2-1894/2008 DATED 28/11/2011 ISSUED BY THE STATUTORY AUTHORITY.** ## **ANNEXURE-D.TRUE COPY OF THE LETTER DATED 21/7/1997 FROM THE COLLECTOR TO THE GOVERNMENT SECRETARY.** **ANNEXURE-E.TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.4851/10/RD DATED 10/11/2010.** **ANNEXURE-F.TRUE COPY OF THE LETTER DATED 15/5/2010 OF THE CONSERVATOR OF FORESTS.** ## **ANNEXURE-G.TRUE COPY OF THE G.O.(MS) NO.127/80/AD DATED 16/4/1980.** **ANNEXURE H-TRUE COPY OF THE FIR NO.756 DATED 30.5.2013 REGISTERED BY THE MUNNAR POLICE STATION.** **ANNEXURE I- TRUE COPY OF THE LETTER DATED 20.11.2007 FROM THE DIVISIONAL FOREST OFFICER TO THE COLLECTOR** **ANNEXURE J- TRUE COPY OF THE COMMUNICATION DATED 15.5.2010 OF THE DEPUTY CONSERVATOR OF FORESTS** ## **RESPONDENTS EXHIBITS** **ANNEXURE R2(A) TRUE COPY OF RELEVANT PAGES OF THE ROYAL PROCLAMATION OF 1899 ANNEXURE R2(B) TRUE COPY OF G.O(MS) NO.15/2009/F&WLD DATED 27.2.2009 ANNEXURE R2(C) TRUE COPY OF ORDER NO.C4-31957/2003 DATED 7.8.2003 ISSUED BY THE DISTRICT COLLECTOR** **ANNEXURE R2(D) TRUE PHOTOGRAPH SHOWING THE EXACT SCENE OF OCCURRENCE.** ## **TRUE COPY** ## **SKS** **P.A TO JUDGE** ## **A.M.BABU, J.** ## **--------------------------Crl.M.C No. 2831 of 2013 --------------------------Dated 23[rd] May, 2018** ## **ORDER** The forest range officer, Mankulam filed an occurrence report before the judicial magistrate of the first class, Devikulam. A copy of it is annex-A. Petitioners 1 and 2 are shown therein as accused 1 and 2 respectively. Annex-A states that the details of the remaining accused persons are not yet ascertained. Joining of petitioners 3 and 4 in the instant proceedings suggests that they are the persons the forest range officer is in search of. The occurrence report was filed alleging commission of offences punishable under Sec.27 (1) (e) (ii), (iii) and (iv) of the Kerala Forest Act, 1961 (for short 'the Act'). The allegations are that the accused persons have trespassed into the proposed reserved forest at Mankulam and that they cleared the undergrowth and installed two boards. The petitioners seek to quash all the proceedings initiated against them under annex-A. 2. Heard the learned counsel for the petitioners and the learned special government pleader for forest cases. 3. The offences alleged against the petitioners are those punishable under Sec.27 (1) (e) (ii), (iii) and (iv) of the Act. The 2 Crmc No.2831/2013 memorandum of Crl.M.C contains 11 paragraphs under the caption 'statement of facts' and seven grounds as grounds A to G to highlight one contention. The contention is that the acts stated in annex-A alleged to have been committed by the petitioners would not amount to any offence unless done in a reserved forest. In other words, according to the petitioners, the land in question not being declared a reserved forest, no offence could be charged against them. In support of their said contention, they refer to Secs 2(g), 4, 6 and 19 of the Act. 4. Any person doing any of the acts enumerated in subclauses (i) to (vi) of clause (e) of Sub-sec.(1) of Sec.27 of the Act in a reserved forest or in a land proposed to be constituted a reserved forest shall be punished with imprisonment and fine. Therefore, in order to attract the penal provisions in Sec.27 (1) (e) of the Act, the land in question need not be necessarily a reserved forest. The penal provisions are attracted even if the land is only one proposed to be constituted a reserved forest. Therefore the very foundation of the contention of the petitioners is lost. They have no case that the land in question is not a land proposed to be constituted a reserved forest. They cannot have 3 Crmc No.2831/2013 such a case since they themselves have produced certain documents which suggest that the land in question is a land proposed to be constituted a reserved forest. However, I shall consider the provisions in the Act referred to by the learned counsel for the petitioners. 5. Sec.4 of the Act provides that whenever it is proposed to constitute any land a reserved forest, the government shall publish a notification in the gazette. Sec.4 consists of clauses (a) to (c). Clause (a) states that the notification shall specify the situation and limits of the notified land as nearly as possible. What clause (b) insists on is a declaration in the notification that it is proposed to constitute such land a reserved forest. A forest settlement officer shall be appointed to enquire into the matters mentioned in clause (c) and he shall be appointed as per the notification issued under Sec.4 itself. Admittedly, the government published a notification under Sec.4 of the Act. The petitioners themselves have produced a copy of the said notification. The same is annex-B. The requirements in clauses (a) to (c) of Sec.4 of the Act have been complied with in annex-B notification including the appointment of the forest settlement officer. The 4 Crmc No.2831/2013 petitioners have no case that the land notified under annex-B is a different land. In view of the issuance of annex-B notification, the petitioners have no ground at all to get annex-A and the proceedings thereunder quashed. For, soon a notification is issued under Sec.4 of the Act in respect of a land, it becomes a land proposed to be constituted a reserved forest. Sec.27 (1) (e) of the Act is attracted on commission of any of the acts mentioned in sub-clauses (i) to (vi) in such land. The petitioners are not entitled to get the criminal prosecution against them quashed. 6. Sec.6(1) of the Act provides that when a notification has been issued under Sec.4, the forest settlement officer shall publish a proclamation in the gazette and at some other places referred to in Sec.6(1). The particulars to be contained in the proclamation are stated in clauses (a) to (d) of Sec.6(1). The forest settlement officer did issue a proclamation. Annex-C is a copy of it. Sec.6 is pressed into service by the petitioners to highlight that the land in question is not yet a reserved forest. It need not be a reserved forest to attract the provisions of Sec.27 (1) (e) of the Act as already stated. It only needs to be a land proposed to be constituted a reserved forest. The land in 5 Crmc No.2831/2013 question is such a land and therefore the penal provisions in Sec.27 (1) (e) (ii), (iii) and (iv) are attracted if the acts alleged against the petitioners were committed by them. Did they commit such acts is a question outside the scope of an enquiry under Sec.482 of Cr.P.C. 7. What Sec.2 (g) of the Act does is only to define the expression “ land at the disposal of the government” . The said expression is not used in Sec.27 (1) (e) of the Act. Therefore Sec.2 (g) has no relevance in deciding the instant proceedings. 8. It is under Sec.19 of the Act the government by notification in the gazette declares a forest a reserved forest. This section is pressed into service to contend that the land in question is not declared a reserved forest. I have stated more than once that the penal provisions in Sec.27 (1) (e) are attracted even if the offence is committed in a land proposed to be constituted a reserved forest and that the land need not be a part of the reserved forest. Sec.19 is also not relevant for deciding the Crl.M.C at hand. 9. The learned counsel for the petitioners relied on the decision of the apex court in **Kannan Devan Hills Produce** 6 Crmc No.2831/2013 **Company Ltd vs State of Kerala (AIR 1972 SC 2301).** In the said decision the apex court has upheld the constitutional validity of Secs 4 and 5 of the Kannan Devan Hills (Resumption of Lands) Act. No question relevant in the present proceedings has been considered or decided in the said decision. Whether the government is competent to declare the land in question a reserved forest under Sec.19 of the Act is not a question that can be considered and decided in a proceedings under Sec.482 of Cr.P.C. 10. Annex-A occurrence report was filed by the forest range officer, Mankulam. His authority to file it has been challenged by the learned counsel for the petitioners. Sec.66 of the Act provides, inter alia, that the forest officers shall have the powers of the police officers for the purposes of investigation of forest offences and the collection of evidence. 'Forest offence' is defined in Sec.2 (e) of the Act to mean an offence punishable under the Act or any rules made thereunder. The definition of 'forest officer' in Sec.2 (c) takes in a ranger also. Therefore the forest range officer has the power to investigate an offence under Sec.27 (1) (e) of the Act which is a forest offence. He therefore 7 Crmc No.2831/2013 has the jurisdiction to file annex-A occurrence report before the competent court. 11. The Crl.M.C fails. There is no merit in it. It deserves only a dismissal. Dismissed. sd/- **A.M.BABU Judge** sks/18.4.2018