K. Jayakumar, N.M. Khalid and Achuthan Nair v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936** **Crl.MC.No. 5483 of 2013 ()** **--------------------------OR. NO. 3/2006 OF FOREST RANGE OFFICE, KASARAGOD DISTRICT** **--------------------** ## **PETITIONERS/ACCUSED 1 TO 3 :** **------------------------------------------------** ## **1. K.JAYAKUMAR** **S/O.ACHUTHAN NAIR, AGED 36 YEARS NEYYAMKAYAM HOUSE, KANATHUR PO MULIYAR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT.** ## **2. N.M.KHALID** **S/O.MOIDUNHI, AGED 41 YEARS RESIDING AT SHAHID MANZIL, VIDYANAGAR PO KASARAGOD DISTRICT** ## **3. ACHUTHAN NAIR** **S/O.CHANDU NAIR, AGED 68 YEARS NEYYAMKAYAM HOUSE, KANATHUR PO MULIYAR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT** **BY ADV. SRI.T.MADHU** ## **RESPONDENTS/STATE :** **------------------------------------** ## **1. THE STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. THE DIVISIONAL FOREST OFFICER DIVISIONAL FOREST OFFICE, KASARAGOD KASARAGOD DISTRICT - 671 121** **3. THE FOREST RANGE OFFICER KASARAGOD RANGE, KASARAGOD KASARAGOD DISTRICT - 671 121.** **R1 TO R3 BY SPL. PUBLIC PROSECUTOR (FOREST) SRI. M.P. MADHAVANKUTTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 5483 of 2013 () -------------------------------------** ## **APPENDIX** **PETITIONERS' ANNEXURES : -------------------------------------------** **ANNEXURE A1 COPY OF THE CHARGE SHEET IN O.R.NO.3/2006 OF FOREST RANGE OFFICE, KASARAGOD.** **ANNEXURE A2 CERTIFIED COPY OF THE PROCDEEDINGS DATED 2/5/2013 OF THE 2ND RESPONDENT** **RESPONDENT(S)' EXHIBITS : NIL** **----------------------------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE Mn** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M.C. No.5483 of 2013 --------------------------------------------------------------------Dated this the 31[st] day of March, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioners challenging Annexure-A2 order passed by the 2[nd] respondent under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that, the petitioners were arrayed as accused No.1 to 3 in O.R. No.3/2006 on the file of the Forest Range Office, Kasaragod. It was registered on the allegation that on 04.02.2006, the 3[rd] respondent got a reliable information that, teak wood is being cut and removed from the Government Forest. On the basis of information so received, the forest official reached the Associated Wood Industries at Barotti in Kulathur Village and found the accused transporting teak wood trees to the above wood industry in the vehicle with No.KL-13H/1375 and thereby they have committed the offence punishable under Section 27 (1) (e) 2 Crl. M.C. No.5483 of 2013 (iv) (iii) and Section 27 (1) (d) of Kerala Forest Act. The investigation was completed and final report was filed before the Chief Judicial Magistrate Court, Kasaragod. Learned Chief Judicial Magistrate has taken cognisance of the case as C.C.No.193/2010. The petitioners submitted an application before the 2[nd] respondent for compounding the offence, as the offences are compoundable in nature under Section 68 of the Kerala Forest Act. But the 2[nd] respondent by Annexure-A2 order dismissed the application on the ground that, the case is pending before the court. The order passed by the 2[nd] respondent is against the principles laid down in **Mathew N.J. v. State of Kerala [2011(3) KLT 1]** . So the petitioner has no other remedy, except to approach this court, seeking the following relief: “On these and other grounds to be urged at the time of hearing it is most humbly prayed that this Hon'ble court may be pleased to set aside Annexure-A2 order dated 2.5.2013 of the 2[nd] respondent and bearing No.K.G.E.O.R.No.3/2006 and allow the application for compounding submitted by the petitioners before the 2[nd] respondent, so as to secure the ends of justice.” 3. Heard the learned counsel for the petitioner and learned Special Government Pleader for Forest cases. Crl. M.C. No.5483 of 2013 3 4. The learned counsel for the petitioners submitted that, the pendency of a case is not a bar for considering the question of compounding and Section 68 of the Forest Act says that, except the offences mentioned therein other offences may be compounded. Power has been given to the officer not below the rank of an Assistant Conservator of Forest for this purpose and this aspect has been covered by the decision reported in Mathew N.J’s case (supra). 5. The learned Special Government Pleader for Forest Cases submitted that, there was a circular by the Government, which says that, if the value of the trees cut were more than 1,000/-, it cannot be compounded but that₹ has been considered by a Division Bench of this court, in W.A.No.304/2013 in O.P.(Crl.).3513/2012 and this court directed the forest official to consider in dispose of the compounding petition, strictly in accordance with Section 68 of the forest Act. 6. It is an admitted fact that, the Forest Range 4 Crl. M.C. No.5483 of 2013 Officer, Kassaragod, has registered O.R.No.3/2006 against the petitioners, alleging offences under Section 27 (1) (e) (iv) (iii) and Section 27 (1) (d) Kerala Forest Act and after investigation, final report was filed and it was taken on file as C.C.No.193/2010 and that is pending before the Chief Judicial Magistrate Court, Kasaragod. It is also an admitted fact that, the petitioners filed a petition before the 2[nd] respondent for compounding the offence under Section 68 of the Act and the 2[nd] respondent dismissed the application by Annexure-A2 order, which reads as follows: “So¤ yP\jp]Ss¨V fL°tORa èÈ ƒe]¨OÐO. So¤ SWy]¤ Wðc]p]¤ IaO¾ 16 WxeU Sf¨V fa]WtOU JSfL y¡¨L¡ vj¾]¤ j]ÐOU Aji]WQfoLp] SwXq]\ÿV yPƒ]\ÿV Aji]WQfoLp] SwXq]\ÿO RWLºOSkLpfLReÐV SmLi|U vÐf] jL¤ Bpv y¡¨Lq]Ss¨V 1961&Rs SWqt vj j]poU vWOÕV 61(I) (2) NkWLqU WºORWŸOWpOU, fLË¥ oOf¤ oPÐV Sk¡R¨f]Rq j]po jaka]W¥ y~}Wq]¨OÐf]jOU W¹P¡ c]v]xe¤ SlLrðV KLl}yrORa 20&06&2007&Rs RW^]KB¡&3/06 NkWLqU D¾qvLp]ŸOçfOU 29&03&2010 f}áf]pLp] WLyrSYLcV mzO: \}lV ^Oc}x|¤ o^] yVSNaãV SWLaf]p]¤ SWyV \L¡^V R\pVf]ŸOçfOoLeV. Bpf]jL¤ So¤ SWyV SWLÒTºV R\áL¢ yLi]¨OWp]RsæÐV Ar]p]¨OÐO.” 7. The only ground mentioned in the order was that, since the matter is pending before the court, compounding application cannot be considered and it was dismissed on that ground. But this aspect has been covered by this court, in the decision reported in **Mathew N.J. v.** 5 Crl. M.C. No.5483 of 2013 **State of Kerala and others also reported in 2011(2) KHC 835** , wherein it has been held that, Section 68 does not take away the power of the officer to compound an offence, even when the case is pending before that court. In a case, the offence is compounded; the officer compounding the offence has to give a report to the court, where the case is pending upon which the case is to be closed and the accused, if he is in custody to be discharged. So, it is specifically mentioned in the decision that, case is pending before the court is not a bar for the officer concerned under Section 68 of the Act to exercise the discretion to compound an offence, in the light of Section 68 of the Act. 8. Further, another question arose before the Division Bench of this court in W.A.No.304/2013 in O.P.Crl.No.3513/2012 (Gagatharan v. Forest Range Officer and Others) regarding a condition in Circular No.9/2005 dated 08.11.2005 of Principal Chief Forest Conservator, Thiruvananthapuram, that, only if the loss sustained to the Government is less than ₹ 1,000/-, the question of 6 Crl. M.C. No.5483 of 2013 compounding can be considered by the officer, who is vested with the power under Section 68 of the Act and the Division Bench of this court, has held that, restricting the power of the officer by executive orders by restricting the right of composition for a value less than 1,000/- was found₹ to be unsustainable in law and directed the concerned officer under Section 68 of the Act, to consider and dispose of the compounding application in accordance with law, in view of Section 68 of the Act in the absence of any Rules framed by the Government in this regard under Section 76 of the Kerala Forest Act. So far no such Rule has been formulated. On that ground, the Division Bench of this court held that, the rejection of the application on the basis of executive circulars issued by the department is not correct and set aside the order and directed the officer to reconsider the same and pass appropriate orders in that application. So in view of the dictum laid down in the above decisions, Annexure-A2 order passed by the officer on the ground that, there is a case pending is unsustainable in law Crl. M.C. No.5483 of 2013 7 and the same is liable to be set aside. The petition is allowed and Annexure-A2 order passed by the 2[nd] respondent, rejecting the application for compounding filed by the petitioners is set aside and the 2[nd] respondent is directed to consider and dispose of the application in accordance with law, taking into consideration the observations made in the decisions mentioned in Mathew N.J. v. State of Kerala and Gagatharan v. Forest Range Officer and Others cited (supra). The 2[nd] respondent is directed to consider and dispose of the petition filed by the petitioners for compounding on merits in accordance with law, within a period of two months from the date of receipt of this order. With the above observation and direction the petition is allowed. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss