IN THE HIGH COURT OF KERALA AT ERNAKULAM
## PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943
CRL.MC NO. 3096 OF 2018
O.R.NO.13/2012 OF RANGE OFFICE, KASARAGOD, NOW PENDING AS CC NO.254/2017 ON THE FILE OF THE CHIEF JUDICIAL
## MAGISTRATE,KASARAGOD, KASARGOD
## PETITIONER/ACCUSED NO.11:
ANDUNHI AGED 84 YEARS S/O. BADUVAN KUNHI, BADIRADI HOUSE,P.O. UCHLAMPADY, KALATHUR, EDANAD VILLAGE, KASARAGOD DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.P.K.SUBHASH
## RESPONDENT/S:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM - 682 031 (O.R NO.13/2012 OF RANGE OFFICE, KASARAGOD)
## OTHER PRESENT:
FOR R1 BY PP- SRI.SUDHEER GOPALAKRISHNAN.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.No.3096 of 2018 2
## O R D E R
The petitioner is the accused No.11 in O.R.No.13/2012 of Range Office, Kasaragod which is now pending as C.C.No.254/2017 before the Judicial First Class Magistrate Court, Kasaragod.
2. The aforesaid crime was registered against the petitioner and other accused persons for the offences punishable under Sections 27(1)(e)(iv) and (iii) of Kerala Forest Act, 1961.
3. The prosecution case against the petitioner is that, he is conducting a saw mill under the name and style ‘Apsara Saw Mill’ wherein he sawed certain timber brought by the other accused persons which were illegally cut and removed from the Reserve Forest and converted into wooden logs. According to the prosecution, he thus committed the offence. After the investigation, Annexure A1 charge sheet was submitted and cognizance of the same was taken by the learned Magistrate. The case of the petitioner is that the allegations against the petitioner as contained in Annexure-1 final report, would not
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constitute an offence under any of the provisions of the Kerala Forest Act, even if the contents of the same were taken on its face value. In such circumstances, he seeks for invocation of inherent powers of this Court under Section 482 of Cr.PC to quash Annexure-A1 charge sheet and all further proceedings pursuant thereto.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor for the respondent.
5. The learned counsel for the petitioner would contend that, in order to attract the offence under Section 27(1)(e)(iii)and(iv) of Forest Act, there should be an allegation that he has trespassed into the Reserve Forest and committed the act alleged. It
is pointed out that, even according to the prosecution, there is no allegation that, the petitioner has entered the Reserve Forest area and the only allegation against him was that he has sawed
timber in the mill run by him, without verifying the source of the same. In such circumstances, the learned counsel contends that the offence is not attracted.
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6. On the other hand the learned Public Prosecutor would contend that the relevant Section for which the petitioner is charge sheeted does not mandate that the accused should trespass into the Reserve Forest and commit the offence. The learned Public Prosecutor points out that Section 27(e)(iii) of the Forest Act contemplates that if any person who saws or converts or removes any forest tree including fallen or felled, the offence is made out and it is immaterial whether the action of sawing was done inside the forest or outside the forest. In such circumstances, he prays for dismissal of the Crl.M.C.
7. The crucial question is as to whether the allegations contained in Annexure A1 charge sheet attracts the offence alleged against the petitioner. The relevant offence alleged to have been committed by the petitioner is under Sections 27(1)(e)(iii) and
(iv) which reads as follows:
**==> picture [159 x 11] intentionally omitted <==**
xxx xxx xxx xxx
(e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest.
xxx xxx xxx xxx xxx
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(iii) cuts or fells any trees or girdles, marks, lops, tops, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;
(iv) trespasses or pastures cattle or permits or causes cattle to trespass.”
In Annexure-A1 charge sheet it has been specifically stated that the petitioner had sawed timber brought by the other accused persons without ensuring the source of procurement of the said timber and thereby he had taken part in the commission of offence. There is a specific allegation in Annexure-A1 charge sheet
to the effect that he sawed timbers. In John v.
Divisional Forest Officer (2021(5) KLT 593, a
Division Bench of this Court observed as follows:
_“The next contention is concerning the seizure being possible only when it is used in committing any such offence. To buttress the contention, the learned Counsel has also referred to the nominal heading of Section 27 which brings in ‘penalties for trespass or damage in Reserved Forests and acts prohibited in such forests’. It would be fallacious for us to hold that only those acts which are committed within the boundaries of the reserved forest would fall under the rigour of the provisions of Sections 27 and 52. If we hold so, then, only if_
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_an illegal felling is caught red-handed within the forest, would the offence be attracted. The offences enumerated under sub-section (1) of Section 27 would command us to hold to the contrary. When a tree is illegally felled inside the forest, it is only for a commercial purpose and it would have to be brought outside the forest to put it to use commercially. It is hence, in addition to cutting and felling of trees, the receipt or possession of a forest produce, sawing or converting it and removal of such trees, including fallen or felled, are brought under the ambit of a prohibited act by Section 27, which also imposes a penalty. The trees removed from the forest in a vehicle, if later transported in another vehicle from outside the boundaries of the reserved forest; then both vehicles would be equally liable for the consequences of the prohibited act and will invite both penalty and confiscation proceedings. Likewise, any sawmill which receives timber for sawing has to ensure that it is not illegally removed from a forest or obtained by a prohibited act under the Forest Act, which, otherwise, would be liable to the proceedings under the Act. The offence attracted in an illegal felling inside a forest would not cease on such felling having been concluded. The transportation of such illegally felled trees, the measures employed to convert it into boards, planks or rafters, by sawing, cutting or otherwise and the receipt or possession of such timber also would be encompassed in the offence and would attract penalty with equal rigour._
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_There is no warrant for us to assume that legislature intended only tools, vehicles and other materials used for the acts committed inside the reserved forest to fall under the words employed of ‘used in committing any such offence’ under Section 52 of the Act.”_
8. In the light of the the above observation the contention of the petitioner that, since he has not trespassed into the Reserve Forest no offence is attracted against him, is not legally sustainable.
9. It is true that the petitioner has a contention that he had not taken part in the commission of offence, as he was not aware that the timber was felled from a Reserve Forest. However, it is a question of fact which can be determined only on the basis of evidence adduced during the course of trial. The veracity of the allegations contained in Annexure-A1 charge sheet cannot be decided in a proceeding under Section 482 of the Cr.PC, when the allegations mentioned in Annexure-A1 charge sheet prima facie contains necessary ingredients to attract the offence alleged against the petitioner. In such circumstances, I do not find any merit in this petition warranting invocation of powers of this
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court under section 482 of Cr.P.C and accordingly it is dismissed. However, it is made clear that the findings entered into in this order is only prima facie in nature and the question of involvement of the petitioner is to be considered on the basis of the evidence adduced by the prosecution, untrammeled by any of the observations contained in this order.
Crl.M.C. is dismissed.
Sd/ZIYAD RAHMAN A.A. JUDGE
pkk
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## APPENDIX OF CRL.MC 3096/2018
PETITIONER ANNEXURE
ANNEXURE A1
TRUE COPY OF THE CHARGE SHEET SUBMITTED DATED 31.07.2012 IN O.R.NO.13/2012 OF KASARAGOD RANGE OFFICE.
//True copy//
Sd/-
P.S. to Judge
