Mathew N.J. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933** **Crl.MC.No. 1445 of 2011()** **------------------------OR NO.1/2009 OF FOREST RANGE, KANHANGAD CC.245/2010 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDURG** **....................** ## **PETITIONER(S): ACCUSED:** **-----------------------------------------** **MATHEW.N.J., S/O. JOSEPH, AGED 53 YEARS, KUPPAMAD HOUSE, PARAPPA.P.O., PARAPPA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.T.MADHU, SRI.A.S.THOMAS SMITH.** **RESPONDENT(S): STATE:** **----------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, KANNUR DIVISION, KANNUR-670 002.** **3. THE FOREST RANGE OFFICER, KANHANGAD RANGE, KANHANGAD-671 315.** **R1 TO R3 BY PUBLIC PROSECUTOR SRI. MANU** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** **“C.R.”** ## **THOMAS P.JOSEPH, J.** **==================================== Crl. M.C. No.1445 of 2011 ==================================== Dated this the 02[nd] day of June, 2011** ## **O R D E R** Could an Officer empowered under Section 68 of the Kerala Forest Act (for short, “the Act”) compound an offence (other than offence under Secs.62 and 65 of the Act) when the case is pending before the criminal court? What is the effect of such composition on the pending case? These questions are urged for a decision in this proceeding initiated under Section 482 of the Code of Criminal Procedure (for short, “the Code”). 2. Petitioner is accused in O.R. No.1 of 2009 of Forest Range Office, Kanhangad and C.C. No.245 of 2010 of the court of learned Judicial First Class Magistrate-II, Hosdurg for offences punishable under Sec.27(1) (e) (iii) and (iv) of the Act. Case against petitioner is that he trespassed into the reserve forest, cut and removed 17 bamboo poles and caused loss of `500/- to the State Government. Petitioner moved an application before the **CRL.M.C. No.1445 of 2011** -: 2 :- Divisional Forest Officer, Kannur (for short, “the DFO”) to compound the offence as provided under Sec.68 of the Act. That application was rejected by the DFO vide Annexure-A4, order dated 14.06.2010 for the reason that since final report is filed and the case is pending before court, request for compounding cannot be entertained. Annexure-A4 is under challenge. 3. It is argued by the learned counsel that power under Sec.68 of the Act for compounding the offences other than one under Sec.62 or 65 of the Act is equivalent to the power of Abkari Officer under Sec.67 of the Abkari Act as it stood prior to Amendment Act 16 of 1997. According to the learned counsel, the view taken by the DFO that since the case is pending consideration before court he has no authority to compound the offence is unsustainable. Learned counsel contends that the wordings of Sec.68 of the Act are clear enough to indicate that even when the case is pending in court, the Officer authorised under Sec.68 of the Act has power to compound the offence and on such composition the court has to discharge the accused. 4. Section 67 of the Abkari Act (before Amendment Act 16 of 1997) read as under: ## **CRL.M.C. No.1445 of 2011** -: 3 :- ”67. **Power to compound** **offences.** - Any Abkari Officer specially empowered in that behalf may accept from any person,- (a) whose licence or permit is liable to be cancelled or suspended under clauses (a) and (b) of section 26 or who is reasonably suspected of having committed an offence under clause (2) of section 55, sections 56, 57 or 63, a sum of money not less than ten thousand rupees; and (b) whose licence or permit is liable to be cancelled or suspended under clause (bb) of section 26 or who is reasonably suspected of having committed an offence under clause (1) of section 55 or sections 58 o4 64A, a sum of money note less than twenty five thousand rupees, in lieu of such cancellation of suspension or by way of compensation for the offence which may have been committed as the case may be. **CRL.M.C. No.1445 of 2011** -: 4 :- On the payment of such sum of money to such officer, the accused person, if in custody, shall be discharged and no further proceedings shall be taken against such person”. Referring to the said provision a learned Judge of this Court in **Mariamma & Another v. State of Kerala & Others** (1998 [1] KLT 286) held that offences referred to in Sec.67 of the Abkari Act are compoundable. In that case the accused were chargesheeted and cases were pending in various courts. This Court directed that on compounding the offences the Officer concerned shall report the matter to the courts where the cases are pending and on getting reports of composition the courts concerned shall close the case. 5. Section 68 of the Act reads: ## “68. **Power to compound** **offences:** - (1) Any Forest Officer not below the rank of an Assistant Conservator of Forests may accept from any person, **CRL.M.C. No.1445 of 2011** ## -: 5 :- reasonably suspected of having committed any forest offence other than an offence under Section 62 or Section 65, a sum of money by way of compensation for the offence which may have been committed and where any property has been seized as liable to confiscation, may release the same on payment of the value thereof as estimated by such officer or confiscate such property to the Government. (2) On the payment of such sum of money or such value or both, as the case may be to such officer, the accused person, if in custody shall be discharged, the property seized shall be released and no further proceedings shall be taken against such person or property.” 6. It is seen from sub-sec.(2) of Sec.68 of the Act that on payment of money, etc., as referred to in sub-sec.(1) of Sec.68, the accused if in custody shall be discharged, the property shall **CRL.M.C. No.1445 of 2011** ## -: 6 :- be released and no further proceeding shall be taken against such person or property. The Act does not contain any provision whereby a forest Official is empowered to 'discharge' an accused who is in custody. Necessarily the order of discharge must be by the court in whose custody the accused is. 7. The word “compound” means “settle by mutual concession”. To 'compound' a debt, is to abate a part on receiving the residue (see Haskins v. New Comb, 2 Johns 408; Pennell v. Rhodes, 9 Q.B. 129). The word 'compound' as used in Sec.320 of the Code means “to forbear from prosecution for consideration or any private motive.” It is ridiculous to say that for the purpose of compounding under Sec.68 there is an offence and for the purpose of prosecution, there is a difference offence. Once the offence is lawfully compounded, nothing survives to be proceeded with, whether a prosecution has already been launched or not. The direction in sub-sec.(2) of Sec.68 of the Act that on payment of money, etc., the accused person “if in custody shall be discharged” specifically indicates pendency of the case in court when such composition is made. The further provision in sub-sec.(2) of 68 that “and no further proceeding shall be taken against such person” means that any proceeding if pending in **CRL.M.C. No.1445 of 2011** -: 7 :- court shall be closed or dropped and if not pending, shall not be initiated. 8. It is profitable to refer to yet another decision in **Sivapalan v. R.T.O., Kollam** (1996 [2] KLT 632). There Section 86(5) of the Motor Vehicles Act, 1988 was considered. It was held that once the offence is compounded such composition operates as a complete bar to any further proceeding. The effect of composition is that it precludes the authority who initiated proceeding against the offender from proceeding further. 9. On going through Sec.68 of the Act and the decisions referred supra I am to hold that the DFO was not correct in holding that there could be no composition of the offence under Sec.68 of the Act when the case is pending before the criminal court. There is nothing in Sec.68 of the Act which takes away the power of the Officer concerned to compound the offence even when the case is pending before a court. In case the offence is compounded, the Officer compounding the offence has to give a report to the court where the case is pending and on such report being received the case is to be closed and the accused if he is in custody is to be discharged. 10. Learned Public Prosecutor submitted that there could **CRL.M.C. No.1445 of 2011** ## -: 8 :- be other reasons on which the Officer referred in Sec.68 of the Act might refuse to compound the offence. Question whether the offence is to be compounded or not is a matter within the discretion of the Officer concerned which he has to exercise having regard to the nature of the offence, the loss caused to the Government and other relevant circumstances if any. Learned counsel for petitioner submitted that allegation is that 17 bamboo poles were cut and removed from the reserve forest, even as per the mahazar drawn by the forest Officials there is no proper boundary between the reserve forest and property of petitioner and that the loss (allegedly) caused to the Government on account of cutting and removal of 17 bamboo poles is only `500 even as assessed by the forest Official. These are matters which the Officer authorised to compound the offence has to consider. It is not for this Court at this stage to say whether the Officer has to compound the offence or not. Resultantly, this Criminal Miscellaneous Case is allowed in the following lines: (i) Annexure A4, order dated June 14, 2011 of the DFO, Kannur on application dated ## **CRL.M.C. No.1445 of 2011** -: 9 :- June 7, 2010 preferred by the petitioner is set aside. (ii) The DFO, Kannur is directed to consider the application dated June 07, 2010 and pass appropriate orders in the light of the observations made above within a month from the date of receipt of this order (which shall be made available by the petitioner forthwith). (iii) The decision of the DFO, Kannur shall be communicated to the learned Judicial First Class Magistrate-II, Hosdurg. (iv) On receipt of such information, if the offence is compounded, learned Magistrate shall close the proceeding against petitioner and discharge him if he is in custody. If the offence is not compounded, learned Magistrate shall proceed with the trial of the case. **CRL.M.C. No.1445 of 2011** -: 10 :- (v) Further proceeding in C.C. No.245 of 2010 of the court of learned Judicial First Class Magistrate-II, Hosdurg will stand in abeyance for a period of forty five (45) days from this day or till report is received from DFO, Kannur, whichever is earlier. ## **THOMAS P. JOSEPH, JUDGE.** vsv