High Court of KeralaSingle Judge2020-02-10Writ petition allowed; Ext.P4 quashed; the seco...

Johny and Benny v. State of Kerala and others

Case / Petition Number:W.P.(C) No.30860 of 2019 (F)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-02-10
Court Decision / Holding: Ext.P4 is quashed. The second respondent is directed to consider and dispose of Exts. P2 and P3 applications afresh within one month from producing a certified copy of this judgment before him.
Final Disposition: Writ petition allowed; Ext.P4 quashed; the second respondent is directed to consider Exts.P2 and P3 afresh within one month from production of certified copy of this judgment.

Parties to the Case

Appellants / Petitioners

Johny
Benny

Respondents

State of Kerala represented by Secretary, Department of Forest and Wildlife, Government Secretariat, Thiruvananthapuram, PIN-695001
Deputy Conservator of Forest, Divisional Forest Office, Malayattoor Division, Kodanand P.O., PIN-683544
Divisional Forest Officer, Divisional Forest Office, Malayattoor Division, Kodanand P.O., PIN-683544
Range Forest Officer, Kalady Forest Range Office, Kalady-Malayattoor Road, Neeleswaram P.O., Ernakulam District, PIN-683574

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Shaijan Joseph
• Sri P. Dalbi Emmanuel

Counsels for Respondents

• Sri Sandesh Raja - SPL GP Forest

Case Synopsis & Summary

This Kerala High Court writ petition challenges an order under the Wildlife (Protection) Act, 1972 concerning compounding of offences. The petitioners, Johny and Benny, were accused in CC No. 419/2016 before the Judicial First Class Magistrate, Perumbavoor for offences under sections 9 and 39 read with section 51 of the Wildlife Act, relating to the hunting and possession of a wild pig. The petitioners applied under section 54 for compounding the offences, but the second respondent refused, citing that a case against them was pending in the trial court (C.C.No.419/2016). The petition contends that pendency of a case cannot by itself bar compounding and that section 54(2) contemplates discharge on payment upon compounding. The court observes that the offence relates to a wild pig listed in Schedule III (Item 19) and carries no minimum imprisonment, hence no absolute bar on compounding under the proviso to section 54. Relying on Mathew v. State of Kerala and the principle in Govind Singh (AIR 2005 SC 294), the court holds that pendency alone is not a sufficient ground to deny compounding, and that discretion to compound must be exercised judicially with reasons. The writ is allowed; Ext. P4 is quashed, and the second respondent is directed to consider Exts. P2 and P3 afresh within one month of certified copy production of this judgment.

Provisions of Law Cited

Wild Life (Protection) Act, 1972 – Section 9Wild Life (Protection) Act, 1972 – Section 39 read with Section 51Wild Life (Protection) Act, 1972 – Section 54Wild Life (Protection) Act, 1972 – Section 54(2)Wild Life (Protection) Act, 1972 – Proviso to Section 54Wild Life (Protection) Act, 1972 – Schedule III, Item No. 19 (wild pig)

Legal Doctrines & Maxims

Discretionary power to compound offences must be exercised in a judicial manner after recording reasons.
Expression 'if in custody, shall be discharged' signifies pendency of the case for compounding purposes.
Discretionary powers must be exercised with judicial scrutiny and reasons, as noted in Govind Singh (AIR 2005 SC 294).
Pendency of a case is not per se a ground to deny compounding under Section 54.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Section 54 empowers an empowered officer to accept a sum of money in lieu of prosecution and that the court's pendency of the criminal case cannot be a valid ground to refuse compounding. They argued that Section 54(2) contemplates discharge on payment and that the offence in question concerns a wild pig (Schedule III, Item 19) for which no minimum imprisonment is prescribed, making compounding permissible. They relied on Mathew v. State of Kerala (2011 (2) KHC 831) to interpret the scope of 'if in custody, shall be discharged' and stressed that pendency should not bar compounding if the officer records reasons showing why compounding is warranted.

Contentions of Respondents

The judgment notes the presence of a Public Prosecutor and indicates that the respondents’ challenge to the petitioners’ position rests on the statutory framework and the need to maintain prosecutorial discretion and the propriety of the exercise of the compounding power; however, explicit argument details from the respondents are not elaborated in the text of the judgment.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mathew v. State of Kerala	2011 (2) KHC 831; 2011 (3) KLT 1	Positive	The court relies on Mathew to interpret 'if in custody, shall be discharged' as indicating pendency and that pendency alone is not a ground to reject compounding; supports allowing the petition.
State of Jharkhand v. Govind Singh	AIR 2005 SC 294	Positive	Cited to emphasize that discretionary power to compound must be exercised judicially and with reasons.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **WP(C).No.30860 OF 2019(F)** ## **PETITIONERS:** **1 JOHNY, AGED 59 YEARS S/O.VAREED, MUNDADAN HOUSE, MANJAPRA P.O., AYYAMPUZHA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN- 683581. 2 BENNY, AGED 55 YEARS S/O.JOSEPH, KOLATUKUDY HOUSE, MANJAPRA VILLAGE, MANJAPRA P.O., ALUVA TALUK, ERNAKULAM DISTRICT, PIN- 683581. BY ADVS. SRI.P.SHAIJAN JOSEPH SRI.P.DALBI EMMANUEL** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST AND**| ||**WILD LIFE, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN- 695001.**| |**2**|**DEPUTY CONSERVATOR OF FOREST,**| ||**DIVISIONAL FOREST OFFICE, MALAYATTOOR DIVISION,**| ||**KODANAND P.O., PIN- 683544.**| |**3**|**DIVISIONAL FOREST OFFICER,**| ||**DIVISIONAL FOREST OFFICE, MALAYATTOOR DIVISION,**| ||**KODANAND P.O., PIN- 683544.**| |**4**|**RANGE FOREST OFFICER,**| ||**KALADY FOREST RANGE OFFICE, KALADY-MALAYATTOOR**| ||**ROAD, NEELESWARAM P.O., ERNAKULAM DISTRICT, PIN-**| ||**683574.**| **SRI SANDESH RAJA-SPL GP FOREST** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2020, THE COURT ON 10.02.2020 DELIVERED THE FOLLOWING:** W.P.(C) No.30860/2019 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ W.P.(C) No.30860 of 2019 ----------------------------------------------Dated this the 10[th] day of February, 2020 ## **J U D G M E N T** This writ petition is filed by the first and the second accused in the case C.C.No.419/2016 on the file of the Court of the Judicial First Class Magistrate-IV, Perumbavoor. 2. The offences alleged against the petitioners are under Sections 9 and 39 read with 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Act'). 3. The prosecution case is that, on 25.11.2014, the first accused hunted and killed a wild pig and used its meat and that he gave a portion of the meat to the second accused and that both accused kept the meat in their possession. 4. The petitioners filed Exts.P2 and P3 applications under Section 54 of the Act before the second respondent for compounding the offences allegedly committed by them. As per W.P.(C) No.30860/2019 3 Ext.P4 communication dated 26.02.2019, the second respondent gave intimation to the petitioners that the offences cannot be compounded for the reason that the case against the petitioners was pending before the Court of the Judicial First Class Magistrate, Kalady as C.C.No.419/2016. 5. This writ petition is filed challenging the decision taken by the second respondent on Exts.P2 and P3 applications and communicated to the petitioners as per Ext.P4. 6. Heard learned counsel for the petitioners and the learned Public Prosecutor. 7. Learned counsel for the petitioners contended that it was not legal and proper for the second respondent to refuse to consider the applications filed by the petitioners for compounding on the ground that the case against them was pending before the court. Learned counsel for the petitioners contended that pendency of the case before the court is not a sufficient ground for rejecting the application for compounding of the offence. 8. Section 54 of the Act deals with compounding of offences. Section 54 reads as follows: W.P.(C) No.30860/2019 4 ## _“_ _**54. Power to compound offences** .- (1)_ _The Central Government may, by notification, empower the Director of Wild Life Preservation or any other officer not below the rank of Assistant Director of Wild Life Preservation and in the case of a State Government in the similar manner, empower the Chief Wild Life Warden or any officer of a rank not below the rank of a Deputy Conservator of Forests, to accept from any person against whom a reasonable suspicion exists that he has committed an offence against this Act, payment of a sum of money by way of composition of the offence which such person is suspected to have committed._ _(2) On payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person._ _(3) The officer compounding any offence may order the cancellation of any licence or permit granted under this Act to the offence, or if not empowered to do so, may approach an officer so empowered, for the cancellation of such licence or permit._ _(4) The sum of money accepted or agreed to be accepted as composition under sub-section_ W.P.(C) No.30860/2019 5 _(1) shall, in no case, exceed the sum of twentyfive thousand rupees:_ _Provided that no offence, for which a minimum period of imprisonment has been prescribed in section 51, shall be compounded.”_ 8. The proviso to Section 54 of the Act states that, no offence, for which a minimum period of imprisonment is prescribed in Section 51 of the Act, shall be compounded. This is the only prohibition imposed under the Act against compounding of an offence under the Act. 9. Wild pig is the animal involved in this case. It is not an animal specified in Schedule I or Schedule II of the Act. It is an animal specified as item No.19 in Schedule III of the Act. No minimum period of imprisonment is prescribed for the offences allegedly committed by the petitioners in respect of that animal. 10. Ext.P4 reveals that the second respondent refused to consider the applications filed by the petitioners for compounding only on the ground that the case against the petitioners was pending in the court. Section 54(2) of the Act provides that, on payment of money to the empowered officer on compounding the W.P.(C) No.30860/2019 6 offence, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person. The expression “if in custody, shall be discharged” in Section 54(2) of the Act indicates pendency of case in a criminal court for the offence committed. It means that the empowered officer can compound the offence against an accused person, even when the criminal case is pending in the court. 11. In **Mathew v. State of Kerala : 2011 (2) KHC 831: 2011 (3) KLT 1** , while dealing with similar provision contained in the Kerala Forest Act, this Court has held that the expression ''if in custody, shall be discharged'' specifically indicates pendency of the case in court when such composition is made. 12. It follows that pendency of the case in the court is not a sufficient ground to reject an application filed under Section 54 of the Act for compounding of an offence under the Act. 13. The power to compound an offence committed against the Act is certainly a discretionary power. The discretion has to be judicially exercised. It goes without saying that when the W.P.(C) No.30860/2019 7 discretionary power is conferred, the same has to be exercised in a judicial manner after recording of reasons by the concerned officer as to why the compounding was necessary to be done (See **State of Jharkhand v. Govind Singh : AIR 2005 SC 294** ). 14. In the aforesaid circumstances, Ext.P4 is liable to be quashed. The second respondent has to consider Exts.P2 and P3 applications filed by the petitioners afresh. 15. Consequently, the writ petition is allowed. Ext.P4 is quashed. The second respondent is directed to consider and dispose of Exts.P2 and P3 applications afresh within a period of one month from producing a certified copy of this judgment before him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.30860/2019 8 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CHARGE SHEET IN C.C.419/2016 FILED BEFORE THE HON'BLE JFCM COURT IV PERUMBAVOOR.** **EXHIBIT P2 TRUE COPY OF APPLICATION DATED 19.2.2019 SUBMITTED BY 1ST PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF APPLICATION DATED 19.2.2019 SUBMITTED BY 2ND PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF ORDER NO.B-10233/2014 DATED 26.02.2019 ISSUED BY THE 3RD RESPONDENT TO PETITIONERS.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE