Mujeeb, Tahzheparambil Seedi; Muneer @ Abdul Muneer; Haneefa; Mujee b, S/o Kattilasseri Manuko ya v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933** **Crl.Rev.Pet.No. 3337 of 2009()** **------------------------------------------** **CRA.38/2007 OF ADDL. SESSIONS COURT (ADHOC-III), MANJERI CC.107/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II (FOREST OFFENCES), MANJERI** **....................** ## **REVN. PETITIONERS/APPELLANT/ACCUSED** **-----------------------------------------------------------------** **1. MUJEEB, TAHZHEPARAMBIL SEEDI, BEEMBUNGAL, MAMPAD VILLAGE, NILAMBUR TALUK.** **2. MUNEER @ ABDUL MUNEER, S/O.THAZHEPARAMBIL SEEDI, KATTUMUNDA-PANDALINGAL, MAMPAD VILLAGE, NILAMBUR TALUK.** **3. HANEEFA, S/O.PATTAMBI UMMER, OODAYIKKAL, MAMPAD VILLAGE, NILAMBUR TALUK.** **4. MUJEEB, S/O.KATTILASSERI MANUKOYA, OODAYIKKAL, MAMPAD VILLAGE, NILAMBUR TALUK.** **BY ADV. SRI.T.K.AJITH KUMAR, SRI.P.VINODKUMAR.** ## **RESPONDENT/RESPONDENT/COMPLAINANT** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE DEPUTY RANGER, VANIYAMPUZHA FOREST STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MR.SABU SREEDHARAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2011,THE COURT ON 02/12/2011 PASSED THE FOLLOWING:** **rs** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NO.3337 OF 2009 (B) ----------------------------------Dated this the 2[nd] day of December, 2011** ## **O R D E R** Revision is by the accused, four in number, in C.C.No.107 of 2005 on the file of the Judicial First Class Magistrate Court-II, Manjeri. They were prosecuted for offences punishable under Section 27 (1) (e) (iii) and (iv) of the Kerala Forest Act, for short, the 'Act' as amended by Act 2 of 1993 on a complaint filed by the Deputy Forest Ranger, Vaniyampuzha Forest Station. Negativing their plea of not guilty, the magistrate found them guilty and convicted them of the offences charged. They were sentenced to undergo rigorous imprisonment for two years each and to pay fine of Rs.3,000/- each, with default term of simple imprisonment for six months each under Sections 27 (1) (e) (iii) and 27 (1) (e) (iv) of the Act, separately, but, allowing them to undergo the sentences concurrently. As against the sentence and conviction, they preferred an appeal. The learned **Crl.R.P.No.3337/2009** **2** Additional Sessions Judge (Adhoc - III), Manjeri, set aside the conviction and sentence and remitted the case for fresh trial and disposal with direction to afford the prosecution an opportunity to produce additional evidence to prove that the place of occurrence is within a reserve forest. Challenge in the revision is against such remission contending that the appellate court ought to have passed an order of acquittal in favour of the accused. 2. The gist of the prosecution case is that the accused, on 04.09.1997, trespassed upon the Government forest at Thrikkaikuty Panayamcode Section, cut down a teakwood tree into pieces and assaulted the forest officials, who, on detection, tried to prevent them from removing the wooden logs. Two forest officials, a forest watcher and a forest guard, sustained injuries, and, the forest party were forced to retreat and the culprits took away the wooden logs, was the case of the prosecution. An occurrence report was registered over the incident. During the course of the enquiry thereof, the identity **Crl.R.P.No.3337/2009** **3** of the present accused as among the members of the group consisting of ten persons, who committed the aforesaid offences was disclosed and they were apprehended. After completion of the enquiry, a report was filed before the court indicting the accused for the offences as aforesaid. On the materials placed by the prosecution, which consisted of PWs.1 to 5 and Exts.P1 to P8, the learned magistrate found the charges against the accused established and, accordingly, they were convicted and sentenced as stated supra. Conviction of the accused was assailed in their appeal on various grounds. Before the appellate court, on behalf of the prosecution a copy of the notification, to substantiate that the place of occurrence involved is situated in a reserve forest, was produced with an application for its reception under Section 391 of the Code of Criminal procedure, for short, the 'Code'. Copy of the notification produced by the prosecution was received and exhibited in appeal as Ext.P9. The learned Sessions Judge finding merit in the challenge raised by the accused in their appeal that the prosecution had failed to show that the occurrence took place within the reserve forest, setting **Crl.R.P.No.3337/2009** **4** aside the conviction and sentence against them, remanded the case to the trial court for fresh disposal after giving an opportunity to the prosecution to adduce additional evidence. While ordering remission, the Sessions Judge directed the trial court to provide opportunity to the accused also to impeach the value and merit of the notification produced. A time bound disposal was also ordered. As against that remission, the accused has preferred this revision. 3. I heard the learned counsel for the revision petitioners and the learned Public prosecutor and also perused the records of the case. 4. The learned counsel for the petitioners/accused contended that the order of remission passed by the Sessions Judge in appeal providing further opportunity to the prosecution to adduce evidence to prove that the place of occurrence involved is within a reserve forest was patently erroneous and unsustainable. Before the magistrate, no notification was **Crl.R.P.No.3337/2009** **5** produced, as under Section 19 of the Act, which is essential for prosecution of the offences imputed against the accused, and that lacuna in the prosecution case was permitted to be cured by marking Ext.P9, a copy of the notification produced as additional evidence in appeal, and that persuaded the Sessions Judge to pass the order of remand, is the submission of the counsel. Even the reception of additional evidence, copy of the notification produced in appeal exhibited as Ext.P9 was totally unjustified is the submission of the counsel relying on **Chacko Pyli and Others v. State of Kerala (1966 KLT 102)** and **A.M.Antony v. Forest Range Officer (1977 KLT 691).** The learned counsel contended that the non-production of the notification before the magistrate during the trial is fatal to the prosecution. Mere production and marking of the notification before the appellate court is not sufficient to sustain the prosecution case imputed against the accused, and, providing of further opportunity to the prosecution to prove the place of occurrence as situated in a reserve forest remitting the case was highly improper and unsustainable, according to the counsel. The **Crl.R.P.No.3337/2009** **6** remission of the case could not serve any purpose as the prosecution case suffers from serious infirmities and this was a fit case where the appellate court should have passed an order of acquittal in favour of the accused, is the submission of the counsel to urge for allowing this revision. The counsel urged for setting aside the conviction and sentence imposed against them by the magistrate and acquitting them of the offences. 5. Going through the judgments rendered by the Magistrate and also the Sessions Judge, taking note of the submissions made by the learned counsel for the petitioners/accused, I find, that the order of remission passed in the appeal to provide an opportunity to the prosecution to lead additional evidence in the light of the reception of a copy of the notification as Ext.P9 in the case to prove the place of occurrence involved is situate in a reserve forest was totally erroneous and not warranted in the proved facts and circumstances of the case. True, the prosecution failed to produce a copy of the notification published under Section 19 of **Crl.R.P.No.3337/2009** **7** the Act before the magistrate to establish that the offences were committed by the accused in relation to cutting of the teakwood tree, at a place situate in a reserve forest. Application moved under Section 391 of the Code by the prosecution before the appellate court to receive a copy of the notification was allowed by the Sessions Judge and that copy was marked as Ext.P9. I do not find any merit in the submissions made by the counsel for the petitioners taking exception to the reception of such additional evidence, Ext.P9 in appeal. Offences charged against the accused, to sustain the imputations made thereof, which are stated to have been committed within a reserve forest can be established only if there was material to show that the occurrence took place within a notified reserve forest as under Section 19 of the Act. Deprivation of forest wealth, which is the wealth of the nation to be protected and also to be preserved for posterity, the environmental impact resulting from the destruction of the flora and fauna, more particularly, by illegal felling of trees in forest, and the deleterious effect that would ensue thereof to the ecological system, leave apart, how they **Crl.R.P.No.3337/2009** **8** affect all living beings, necessarily has to be borne in mind when offences covered by the Act are to be tried by a magistrate. I do not find any merit in the submissions made by the counsel that the reception of Ext.P9 as additional evidence in the appeal was improper. Challenge made over the receiving of Ext.P9 as additional evidence placing reliance on **Nishar Ahmed Fajmohmed Kaji v. State of Gujarat ((1998) 9 SCC 23)** was totally misplaced. On the facts involved in that reported decision, a murder case, it was held that the application moved by the convicted accused/appellants in their appeal before the hearing, after it was pending for more than seven years, to examine a witness to lead additional evidence, was turned down by the appellate court, and the Apex Court found no impropriety thereof. No proposition of law has been laid down in that decision over the reception of additional evidence in appeal. The only rider in receiving additional evidence in appeal is the satisfaction of the appellate court that such additional evidence is necessary for a just decision of the case. The appellate court has also to record its reasons for such reception of additional **Crl.R.P.No.3337/2009** **9** evidence. Certified copy of the notification produced in the case was very vital to sustain the prosecution case. I find the order passed by the appellate court to receive the copy of the notification produced in appeal and exhibited as Ext.P9 was proper, valid and correct. 6. The decisions rendered in **Chacko Pyli and Others's case** (cited supra) and **A.M.Antony's case** (cited supra), referred to above, at the most, have got only academic value in view of the later decisions of this Court in **Alipilla and Others v. State of Kerala (1983 KHC 346)** and **Assistant Collector of Central Excise v. Vasanthakumar (1988 (1) KLT 92).** Now that the reception of Ext.P9 certified copy of the notification in appeal as additional evidence has been found to be correct as held above, no further dilation for non-production of the copy of the notification before the magistrate is called for. Copy produced and exhibited as Ext.P9 which is not certified as a true copy, but, only bear a seal and signature of Conservator of Forests and Custodian of Vested **Crl.R.P.No.3337/2009** **10** Forests has been raised by the counsel to contend that such copy would not suffice the production of a notification as published under Section 19 of the Act. Notification published under Section 19 of the Act or under corresponding provisions under the previous Acts, is a public document as covered under Section 74 of the Evidence Act. When that be so, Section 79 of the Evidence Act spells out that the court shall presume to be genuine every document purporting to be a certified copy or other document which is by law declared to be admissible as evidence of any particular fact and which is duly certified by any officer of the State Government. The court has also to presume that a document signed by an officer is produced, it has been so signed or certified in the official character as claimed in such document. A notification issued by the Government under Section 19 of the Act or corresponding provisions under the predecessor Acts, can be proved by the production of the original notification or a copy thereof certified by the Head of the Department. A perusal of Ext.P9 shows that the signatory thereunder, Conservator of Forests, has stated that it is an **Crl.R.P.No.3337/2009** **11** attested true copy. That is more than sufficient to presume its genuineness and that it is a true copy of the notification published by the Government. 7. The only question which is germane in the revision is whether the Sessions judge was justified in remitting the case to the magistrate after reception of Ext.P9 notification as additional evidence, to enter a finding that the place of occurrence involved is within the reserve forest. The very foundation of the prosecution case is that the teakwood tree situated in the reserve forest was cut down by the accused and that the forest officials who tried to prevent them from removing the pieces of the teakwood cut down were assaulted by them. When such be the case of the prosecution, the place of occurrence, no doubt, has to be determined whether it is in a reserve forest or not, with reference to the materials tendered in the case including the mahazer prepared over the scene of crime, the notification produced and also the evidence of the forest officials. To remit the case for determination of the place of occurrence whether it **Crl.R.P.No.3337/2009** **12** is situate in the reserve forest providing opportunity to the prosecution to do so, was thoroughly improper and totally unjustified where the accused has not even a defence that the tree was cut down from a registered holding or anywhere close to the peripheries of the forest, over which, they or any other person had control and was in enjoyment with possession thereof. Where the place of occurrence in the case is within the reserve forest or not as stated has to be determined on the materials already available in the case including Ext.P9 notification produced as additional evidence in appeal. The remission order passed by the Sessions Judge under the impugned judgment is liable to be set aside, and I do so. It is also seen that some observations have been made by the Sessions Judge over the prosecution evidence on the submissions made by the counsel for the appellants. The appeal has to be heard and decided afresh untrammelled by any of the observations so made, on the basis of the evidence tendered in the case including Ext.P9 received as additional evidence. **Crl.R.P.No.3337/2009** **13** 8. Setting aside the order of remission passed under the impugned judgment, the Sessions Judge [Fast Track Court – I (Adhoc)], Manjeri is directed to take back the appeal and dispose it on its merits untrammelled by any of the observations in its previous judgment. Top priority shall be given to the appeal for its disposal, and it shall be disposed as expeditiously as possible. Revision is disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp **Crl.R.P.No.3337/2009 14**