P. Anversadath v. State of Kerala

Crl.M.C.No.270/2021 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943_ _CRL.MC NO. 270 OF 2021_ _AGAINST THE ORDER/JUDGMENT IN CC 59/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II (FOREST OFFENCES), MANJERI_ ## _PETITIONER/ACCUSED:_ _P.ANVERSADATH, AGED 49 YEARS, S/O.MOIDEENKUTTY, PERUNGODAN HOUSE, KOTTAKAL P.O., MALAPPURAM DISTRICT 676 503._ _P.VIJAYA BHANU (SR.) P.M.RAFIQ, M.REVIKRISHNAN AJEESH K.SASI, VIPIN NARAYAN POOJA PANKAJ SRUTHY N. BHAT_ ## _RESPONDENT/STATE:_ _1 STATE OF KERALA, THROUGH THE ADDITIONAL CHIEF SECRETARY (FOREST AND WILDLIFE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001._ - _2 THE DIVISIONAL FOREST OFFICER (SOUTH), NILAMBUR, MALAPPURAM DISTRICT, PIN 679 329._ - _3 THE FOREST RANGE OFFICER, KALIKAVU RANGE, WANDOOR,MALAPPURAM DISTRICT -679 328. REP.BY SPECIAL GOVERNMENT PLEADER FOR FOREST, HIGH COURT OF KERALA, ERNAKULAM 682 031._ _BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.11.2021, THE COURT ON 9.12.2021 PASSED THE FOLLOWING:_ Crl.M.C.No.270/2021 2 ## **ZIYAD RAHMAN A.A, J.** -----------------------------------------------------Crl.M.C.No.270 of 2021 ---------------------------------------------Dated this the 9[th] day of December, 2021 ## **O R D E R** The petitioner is the 3[rd] accused in C.C.No.59/2019 on the file of the Judicial First Class Magistrate Court-II (Forest Offences), Manjeri. The petitioner is a Government servant working as Tahsildar in Land Revenue Department and the offences alleged against him are punishable under Section 2(16), 9, 39, 50 and 52 of Wildlife Protection Act, 1972 read with Section 51 of the Act of 1972. 2. The allegation against the petitioner is that, the petitioner while working as Tahsildar, Ponnani Taluk, in response to a request made by the Village Officer, Alangode Village, who is the 1[st] accused in the above crime, gave an oral permission to cut down the branches of the trees in the Crl.M.C.No.270/2021 3 premises of the said Village Office. The 1[st] accused, who in turn engaged the 2[nd] accused to execute the said work. Accordingly, on 08.09.2018, the workers of the 2[nd] accused cut the branches of different types of trees standing in the premises of Alangode Village Office at Changaramkulam junction falling under Kalikavu Forest Range in Nilambur South Division. While doing so, it caused damage to nest and eggs of birds and also caused death of hatchlings of Little Cormorant (Neer Kakka) and Pond Heron (Kokku), which are falling under Schedule IV of the Kerala Wild Life Protection Act, 1972. 3. Based on the said incident, O.R.No.11 of 2018 of Kalikavu Forest Range was registered by the 3[rd] respondent and after completing the investigation, Annexure-A4 final report was submitted, implicating the petitioner herein and the two other persons. The Judicial First Class Magistrate Court-II (Forest Offences), Manjeri, took cognizance of the same and it is now pending as C.C.No.59 of 2019. This Crl MC is filed for an order quashing all further proceedings in the said case. Crl.M.C.No.270/2021 4 4. Heard Sri.P.Vijayabhanu, learned Senior counsel for the petitioners and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 5. Even though, several contentions have been raised in the Crl.M.C, learned Senior Counsel appearing for the petitioner basically raised the question regarding the requirement of sanction under Section 197 Cr.P.C. It was pointed out that even going by the averments contained in Annexure-A4, it is an admitted case that the branches which were cut and removed, were that of the trees standing in the compound of the Village Office, which is a public property. There is also no dispute that the same was done in discharge of their official duties. In such circumstances, before taking cognizance of the said offence, sanction under Section 197 Cr.P.C ought to have been obtained. In the absence of such sanction, the action of taking cognizance of the said action by the learned Magistrate is erroneous and hence this is a fit case in which powers of this Court under Section 482 Cr.P.C has to be invoked. Crl.M.C.No.270/2021 5 6. On the other hand, the learned Public Prosecutor would oppose the said prayer by pointing out that the question whether the acts alleged against the petitioner were committed in discharge of official duty is a question of fact and it cannot be decided in this proceeding. Hence the learned Public Prosecutor sought for dismissal of the Crl.M.C. 7. The only question that arises is whether it was proper to take cognizance of the offences alleged against the petitioner without obtaining sanction under Section 197 Cr.P.C. Section 197(1) reads as follows: “(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- _(a)_ in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; Crl.M.C.No.270/2021 6 _(b)_ in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.” 8. As per the stipulation contained in the aforesaid provision, no court can take cognizance of any offence alleged to have been committed by a public servant in discharge of his duties. In this case, even going by the allegations contained in Annexure-A4, it is evident that the petitioner was a public servant and the permission which he alleged to have given to cut and remove the branches was in discharge of the duties. There is no dispute with regard to the fact that the branches of the trees which were cut and removed, situated in the public property, namely within the premises of the Village Office, which comes within the jurisdiction of the petitioner Crl.M.C.No.270/2021 7 herein. It is also discernible from Annexure-A7 order passed by the District Collector, Malappuram, in his capacity as the Chairman of District Disaster Management Authority, that the village officer was one among the officers who was entrusted with the duty to cut and remove the trees and branches situated in the public property of various Departments which are causing threat to life and properties of the public. Going by the contents of Annexure-A4 final report, it is evident that the cutting and removal of branches were done in exercise of the said powers and in discharge of their duties. The respondents do not have a case that the said acts were intended for any personal benefit of the petitioner or any other accused persons. 9. The Honourable Supreme Court in **Devaraja.D v. Owais Sabeer Hussain [(2020) 7 SCC 695],** it was observed as follows: “73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable Crl.M.C.No.270/2021 8 connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. 74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under S.197 of the Code of Criminal Procedure and/or S.170 of the Karnataka Police Act.” In this case, the aforesaid principles are clearly applicable, as it is an admitted case that the alleged actions which constituted the offence have been committed by the petitioner while he was discharging his duties. 10. In such circumstances, I am of the view that, the learned Magistrate could not have taken cognizance of the said offence without getting sanction from the appropriate authority Crl.M.C.No.270/2021 9 under Section 197 of Cr.P.C. Since, the taking of cognizance without sanction, is specifically prohibited under Section 197 Cr.P.C, the proceedings in C.C.No.59/19, pending before the Judicial First Class Magistrate Court-II (Forest Offences) Manjeri is not legally sustainable. In the result, this Crl.M.C is allowed and all further proceedings in C.C.No.59/19 as against the petitioner herein is quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG