Common Order: Crl.M.C Nos. 7334/2023, 7440/2023 and 7377/2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 CRL.MC NO. 7377 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CMP 6696/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM ``` ## **`PETITIONER/S:`** ``` JOSE THOMAS, AGED 42 YEARS S/O.VARGHESE, AGED 42 YEARS, KOCHUPURAKKAL HOUSE, KALLUPALAM, CHATHURANGAPPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI, PIN - 685554 BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` HRITCWICK CS PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.10.2023, ALONG WITH Crl.MC.7334/2023, 7440/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 CRL.MC NO. 7334 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CMP 6724/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM ``` ## **`PETITIONER/S:`** ``` SHINTO.C.J, AGED 42 YEARS S/O.JOSE, CHERUKATTIL HOUSE, MANIPPARA.P.O., KARIMPAN, IDUKKI VILLAGE, IDUKKI TALUK, PIN - 685602 BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN AMJATH A.R ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.10.2023, ALONG WITH Crl.MC.7377/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 3 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 CRL.MC NO. 7440 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CMP 6697/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM ``` ## **`PETITIONER/S:`** ``` JOSE THOMAS, AGED 42 YEARS S/O.VARGHESE, AGED 42 YEARS, KOCHUPURAKKAL HOUSE, KALLUPALAM, CHATHURANGAPPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI, PIN - 685554 BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.10.2023, ALONG WITH Crl.MC.7377/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 4 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.Nos.7334, 7377 and 7440 of 2023 ------------------------------------------Dated this the 3[rd] day of October, 2023** ## **COMMON ORDER** These Criminal Miscellaneous Cases are filed challenging the orders passed by the Judicial Magistrate of First Class Court, Nedumkandam in a petition filed under Section 457 Cr.P.C. Crl.M.C.No.7377/2023 is filed against Annexure-2 order, Crl.M.C.No.7334/2023 is filed against Annexure-3 order and Crl.M.C.No.7440/2023 is filed against Annexure-2 order. 2. The vehicles of the petitioners were seized by the Forest officials in connection with O.R.No.15/2023 of Forest Range Office, Devikulam, which was registered under Section 27(1)(e)(iii), 52(1), 61A of the Kerala Forest Act and also under Section 5(2) r/w Section 9 of the Kerala Preservation of Trees Act, 1986. The Investigating officer in these cases filed a report stating that the vehicles were produced before the Munnar Divisional Forest Officer and confiscation proceedings under Section 61A of the Kerala Forest Act 5 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 have been initiated. Hence the vehicles may not be released. 3. It is the case of the petitioners that the provisions of the Kerala Forest Act are deliberately incorporated for the purpose of confiscation. It is submitted that the order passed by the learned Magistrate is unsustainable. The learned Magistrate dismissed these applications mainly for the reason that the petitioners will have to approach the Forest Officer under Secion 61B of the Kerala Forest Act. The contention of the petitioners is that the Kerala Forest Act is not applicable to the facts and circumstances of the case. It is also submitted that the offence under the provisions of the Kerala Forest Act is not attracted going by the dictum laid down in **Tomy v. State of Kerala** , [2011(3) KHC 655]. Annexure-4 in Crl.M.C.No.7334/2023 is the judgment in **Tomy'** s case supra. The State of Kerala challenges that judgment before the Honourable Supreme Court but the appeal was dismissed confirming the findings in **Tomy's** case as evidenced by Annexure-5 order in Crl.MC.No.7334/2023 of the Supreme Court is the submission. The petitioner also relied on the judgment in CRP No.60/2011 dated 18.07.2022, which is also produced as exhibit in these cases. Even then, the learned Magistrate dismissed the application is the 6 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 grievance. 4. After hearing the learned counsel for the petitioners and the learned Pubic Prosecutor, I think there is some force in the argument of the petitioners. In **Tomy's** case supra, this Court observed that, cutting of trees from cardamom estates might attract offence under the Kerala Preservation of Trees Act but would not amount to offence under the Kerala Forest Act. It would be better to extract the relevant portion of the above judgment. '8. I stated that the enquiry which the Settlement Officer is to conduct under S.8 of the Act does not refer to any claim for cultivation of the land intended to be notified as Reserved Forest. I also stated that by virtue of the right conferred on accused 1 to 3 they are entitled to cultivate cardamom in the estates in question. If that be so, it is inappropriate to say that entering those Cardamom Estates or indulging in cultivation of cardamom in the said estates would amount to any offence under S.27 of the Act. For, under S.27 (1)e)) of the Act even cultivating, clearing or breaking the land for cultivation or for any other purpose or putting shed or other structures (in Reserved forest or other places to be notified as reserve forest and at the disposal of the Government) are offences. I am unable to understand that clearing the land (not amounting to cutting of trees or other act prohibited by the lease 7 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 agreement), cultivating cardamom, breaking the land or putting up shed for the said purpose in a Cardamom Estate which is permitted would amount to an offence under S.27(1) of the Act. If that be so, the contention that cutting of the trees from the Cardamom Estate is an offence punishable under S.27(1)(e)(ii) of the Act cannot be accepted when the Government have provided sufficient safeguards against such cutting by enacting the KPT Act and making Cardamom Reserve Hills or any other land being cultivated with cardamom within the sweep of S.5 of the said Act. 9. That view of mine gets support from the decision of a Division Bench of this Court in Joseph v. State of Kerala, 2005 KHC 1503 2005 (4) KLT 504 : 2006 (1) KLJ 603. The question considered was whether S.5 of the KPT Act will have an overriding effect on any of the provisions of the Kerala Private Forests (Vesting & Assignment) Act. It was answered that S.5 of the KPT Act will prevail in view of the non-obstante clause in the said section. In Bank of India v. Ketan Parekh and Others (supra) also overriding effect of a statute was considered. In paragraph 25 the observations made by Krishna Iyer J., in Life Insurance Corporation of India v. D. J. Bahadur and Others, 1981 KHC 496: 1981 (1) SCC 315: 1981 SCC (L&S) 111: AIR 1980 SC 2181: 1981 (1) SCR 1083: 1981 (1) LLJ I was quoted with approval. That observation stated that 'in determining whether a statute is a special or a general one the focus must be on the principal subject matter plus the 8 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 particular perspective. For certain purposes an Act may be general and for certain other purpose it may be special'. In paragraph 28 of the decision in Bank of India v. Ketan Parekh and Others (supra) it is held that the Act of 1992 and Act of 1993 relating to natural dispute start with nonobstante clause and that S.34 of Act 1993 starts with nonobstante clause unlike S.9A of Act 1992. But incidentally in that case S.9A came subsequently, that is, it came on 25/01/1994 and it was a subsequent legislation which will have overriding effect over the Act of 1993. In the present case I referred to the scope and amplitude of S.5 of the KPT Act and the purpose for which said provision was made. The object is to prevent cutting of trees even from the Cardamom Reserve Hills and lands cultivated with cardamom. If that be so, in the light of the said provision it is idle to contend that cutting of trees from the Cardamom Estates of accused 1 to 3, though it might invite the offence under the KPT Act would amount to an offence under S.27(1)(e)(iii) of the Act. 10. It is relevant to note that the Act as well as the KPT Act prescribe separate punishment for offences committed under the said Acts. Separate provisions are made for seizure and disposal of timber collected in violation of the said Acts. It is difficult to contend that in respect of same matter two different enactments are made providing separate and to some extent contradictory provisions for seizure and disposal of timber. For instance, S.61A of the Act dealt with confiscation of the timber, etc., and states 9 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 that when a forest offence is committed, the timber, vehicle, etc., are liable for confiscation. The term 'forest offence' is defined in S.2(3) of the Act as meaning an offence punishable under the Act or any rule made thereunder. There is no dispute that the KPT Act does not come within the provisions of the Act. If that be so, the timber seized under the provisions of the KPT Act cannot come under the purview of S.61A of the Act. 11. In the light of what I have stated above, I am inclined to accept the argument that (alleged) cutting of trees from the Cardamom Estates of accused 1 to 3 cannot amount to an offence under S.27(1)(e)(iii) of the Act. 12. Criminal Miscellaneous Case is allowed. Annexure A, Form- I report in OR No. 20 of 2011 of the Forest Range Officer, Devikulam to the extent it concerned offence under S.27(1)(c)(iii) of the Act is quashed. The benefit of this order to the said extent shall be given to the remaining accused in OR No. 20 of 2011 as well. I make it clear that I have not expressed any opinion as to whether petitioner or any other accused has committed offence under the KPT Act which is a matter which the appropriate authority has to decide at the appropriate stage.' 5. Admittedly the above judgment is confirmed by the Apex Court also. The above judgment is relied by the learned Judge of this 10 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 Court in the order dated 18.07.2022 in CRP No.60/2011. A perusal of the impugned orders in these cases would show that the learned Magistrate observed that the judgment in CRP No.60/2011 does not lay down the true ratio. I am surprised to see such an observation in the impugned order. Therefore this Court directed the learned Magistrate about the use of such a sentence in the impugned order in these cases. The learned magistrate submitted an explanation and the same is extrated herebelow: 'With regard to the first sentence in paragraph 9 of the order, I may humbly report that what I meant was that the judgment relied upon by the petitioner did not contain the _ratio decidendi_ . I had no intention of disrespecting the Hon'ble High Court's decision. The mistake occurred by an oversight. Any lapse on my part may kindly be pardoned.' 6. I do not want to make any further observation in the light of the above explanation. But, I am of the considered opinion that, when **Tomy's** case supra lay down the dictum which is confirmed by the Apex Court is relied by the learned Judge of this Court in the order dated 18.07.2022 in CRP No.60/2011, it is the bounden duty of 11 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 the learned Magistrate to follow that judgment. Therefore, I am of the considered opinion that the impugned orders in these cases are to be set aside. The matter is to be reconsidered by the lower court in the light of the dictum laid down by this Court in **Tomy's** case supra which is followed in the order dated 18.07.2022 in CRP No.60/2011. Therefore, these Crl.M.Cs are disposed of with the following directions: a) Crl.M.C.No.7334/2023 is disposed of setting aside Annexure-3 order dated 24.08.2023 in C.M.P.No.6724/2023 on the file of the Judicial First Class Magistrate Court, Nedumkandam. b) The learned Magistrate is directed to reconsider C.M.P.No.6724/2023 in the light of the dictum laid down by this Court in **Tomy** ’s case supra and the judgment dated 18.07.2022 in CRP No.60/2011. c) Crl.M.C.No.7440/2023 is disposed of setting aside Annexure-2 order dated 24.08.2023 in C.M.P.No.6697/2023 on the file of the Judicial First Class Magistrate Court, Nedumkandam. d) The learned Magistrate is directed to reconsider C.M.P.No.6697/2023 in the light of the dictum laid down by this Court in **Tomy** ’s case supra and the judgment dated 18.07.2022 in CRP No.60/2011. e) Crl.M.C.No.7377/2023 is disposed of setting aside Annexure-2 order dated 24.08.2023 in C.M.P.No.6696/2023 on the file of the Judicial First 12 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 Class Magistrate Court, Nedumkandam. f) The learned Magistrate is directed to reconsider C.M.P.No.6696/2023 in the light of the dictum laid down by this Court in **Tomy** ’s case supra and the judgment dated 18.07.2022 in CRP No.60/2011. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 13 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 ## **`APPENDIX OF CRL.MC 7334/2023`** ## `PETITIONER ANNEXURES` ``` Annexure-1A TRUE COPY OF THE FORM-1 REPORT IN OR NO.15/2023 OF THE DEVIKULAM FOREST RANGE Annexure -2A TRUE COPY OF THE REPORT DATED 09.08.2023 SUBMITTED BY THE FOREST RANGE OFFICER, DEVIKULAM Annexure-3A CERTIFIED COPY OF THE ORDER DATED 24.08.23 IN CMP 6724/2023 Annexure- 4A TRUE COPY OF THE JUDGMENT IN TOMY VS. STATE OF KERALA AS REPORTED AS 2011(3) KHC 655 Annexure -5A TRUE COPY OF THE ORDER DATED 01.03.2016 IN SPECIAL LEAVE TO APPEAL (CRL) NO.9573/2012 Annexure-6A TRUE COPY OF THE JUDGMENT IN CRP NO.60/2011 DATED 18.07.2022 ``` 14 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 ## **`APPENDIX OF CRL.MC 7440/2023`** ``` PETITIONER ANNEXURES Annexure- 1A TRUE COPY OF THE FORM-1 REPORT IN OR NO.15/2023 OF THE DEVIKULAM FOREST RANGE Annexure-2A CERTIFIED COPY OF THE ORDER DATED 24.08.2023 IN CMP 6697/2023 Annexure-3A TRUE COPY OF THE JUDGMENT IN TOMY VS. STATE OF KERALA AS REPORTED AS 2011(3) KHC 655 Annexure-4A TRUE COPY OF THE ORDER DATED 01.03.2016 IN SPECIAL LEAVE TO APPEAL (CRL) NO.9573/2012 Annexure-5A TRUE COPY OF THE JUDGMENT IN CRP NO.60/2011 DATED 18.07.2022 ``` 15 Crl.M.C.Nos.7334, 7440 and 7377 of 2023 ## **`APPENDIX OF CRL.MC 7377/2023`** ``` PETITIONER ANNEXURES Annexure -1A TRUE COPY OF THE FORM-1 REPORT IN OR NO.15/2023 OF THE DEVIKULAM FOREST RANGE Annexure- 2A CERTIFIED COPY OF THE ORDER DATED 24.08.23 IN CMP 6696/2023 Annexure-3A TRUE COPY OF THE JUDGMENT IN TOMY VS. STATE OF KERALA AS REPORTED AS 2011(3) KHC 655 Annexure- 4A TRUE COPY OF THE ORDER DATED 01.03.2016 IN SPECIAL LEAVE TO APPEAL (CRL) NO.9573/2012 Annexure-5A TRUE COPY OF THE JUDGMENT IN CRP NO.60/2011 DATED 18.07.2022 ```