Joy Joseph v. State of Kerala and Forest Range Officer, Devikulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935 Crl.MC.No. 1364 of 2013 () --------------------------CC.614/2009 of J.M.F.C.,ADIMALI PETITIONER(S)/1ST ACCUSED: ---------------------------------- JOY JOSEPH, AGED 56 YEARS S/O. JOSEPH RESIDING AT KAROTTU VEETIL MALAYINKEEZH BHAGAM KOTHAMANGALAM VILAGE AND TALUK, ERNAKULAM DISTRICT PIN-686691. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS/STATE AND COMPLAINANT: ------------------------------------------------ ## 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031. 2. FOREST RANGE OFFICER - FOREST RANGE DEVIKULAM (REPRESENTED BY THE INVESTIGATING OFFICER IN OR NO. 51/2003 OF DEVIKULAM FOREST RANGE.) PIN-685613. R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER FOR FOREST.DPT. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1364 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ----------------------------- ANNEXURE-A1 CERTIFIED COPY OF THE FINAL CHARGE DATED 1-7-2003 IN OR NO. 51/2003 SUBMITTED BY FOREST RANGE OFFICER, DEVIKULAM. ANNEXURE-A2 TRUE COPY OF THE REPORT DATED 19-5-2010 SUBMITTED BY FOREST RANGE OFFICER DEVIKULAM IN OR NO. 51/2003/CC NO. 614/2009 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALY. ANNEXURE-A3 TRUE COPY OF JUDGMENT DATED 9-11-2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALY IN CC 123/2007 ## RESPONDENT(S)' EXHIBITS:NIL ------------------------------------ //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== CRL.M.C. No. 1364 OF 2013 ==========================** Dated this the 23[rd] day of March, 2013 ## **ORDER** Petitioner is the first accused in OR No.51 of 2003 of Devikulam Forest Range Office registered alleging commission of offence under section 5(2) of the Kerala Preservation of Trees Act, 1986 on the complaint filed by the second respondent and the case was taken on file as C.C.No.123 of 2007. Two of the co-accused of the petitioner were tried in C.C.No.123 of 2007 by the Court of Judicial First Class Magistrate, Adimaly and they were acquitted as per Annexure-A3 judgment. The case against the petitioner and the second accused was split up and refiled as C.C.No.614 of 2009. In the meanwhile, the second accused died and therefore, the case against him was abated. This petition is filed seeking quashment of Annexure-A1 charge sheet laid in OR.No.51 of 2003 of the Devikulam Forest Range Office and all further proceedings pursuant **Crl.M.C.1364/13** 2 thereto against the petitioner in C.C.No.614 of 2009 which on account of the factum of his absconding was included in the list of long pending cases as L.P.No.36 of 2011. Essentially, the aforesaid prayers have been made on the strength of Annexure-A3 judgment of acquittal in respect of the co-accused of the petitioner. It is evident from Annexure-A3 judgment that the alleged offence was detected on 1.7.2003 and the final report was laid before the court only on 15.2.2007 ie., after a lapse of more than three years. The alleged offence is under section 5(2) of the Kerala Preservation of Trees Act, 1986. The punishment prescribed for the offence is imprisonment for a term which shall not be less than 6 months and which may extend that up to 2 years and with fine which shall not be less than Rs.500/but which may extend up to Rs.2000/-. As per section 468(2)(c) Cr.P.C, the period of limitation in respect of an offence punishable with imprisonment for a term exceeding one year but not exceeding 3 years, is three years. Taking into account the specific bar under section 468 Cr.P.C, the court found that cognizance could not have **Crl.M.C.1364/13** 3 been taken on the complaint. It was further found as per AnnexureA3 judgment that the prosecution was launched within 30.6.2006 but form II report was filed only on 19.1.2007. In the circumstances, it was held that taking of cognizance on the complaint is barred by virtue of the bar under section 468 Cr.P.C. The learned counsel for the petitioner, in the circumstances, submitted that the very substratum of the prosecution case is lost and in fact, no cognizance could have been taken against the petitioner and his co-accused. It is submitted that in the circumstances that the general law laid down in the Full Bench decision of this Court in **Moosa v. Sub Inspector of Police [2006 (1) KLT 552]** will not be applicable in the case against him and the exception carved out in paragraph 50 of the said decision is applicable. The learned Public Prosecutor also submitted that in view of the provisions under section 468 of the Cr.P.C and taking note of the admitted fact that the offence was committed on 1.7.2003 and final report was laid only on 15.2.2007 and Form II report was filed only on 19.1.2007, no purpose would be served by allowing **Crl.M.C.1364/13** 4 continuance of the criminal proceedings against the petitioner. The Hon'ble Apex Court in the decision in **Gian Singh v. State of Punjab** **[2012 (4) KLT 108 SC]** held that the High Courts are bound to prevent continuation of criminal proceedings which became absolutely unnecessary. In the result, this Crl.M.C is allowed. Annexure-A1 final report laid in O.R.No.51 of 2003 of Devikulam Forest Range Office and all further proceedings pursuant thereto against the petitioner in C.C.No.123 of 2007 by the Court of Judicial First Class Magistrate, Adimaly which is pending as L.P.No.36 of 2011 are hereby quashed. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.M.C.1364/13** 5 **C.T. RAVIKUMAR, J.** **JUDGMENT** 6 ## **Crl.M.C.1364/13** **September, 2010**