Rahul T., Shikhil V.K., and Roshin N. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **WP(C).No.22680 OF 2019(H)** ## **PETITIONERS:** - **1 RAHUL.T, AGED 22 YEARS S/O SREEDHARAN, KAARATT HOUSE, VELLARAVALLY P.O.VELLARVALLY, KANNUR DISTRICT.** - **2 SHIKHIL V.K, AGED 23 YEARS S/O SHANMUGHAN, VELLUVAKANDI HOUSE, VELLARAVALLY P.O.VELLARVALLY, KANNUR DISTRICT.** - **3 ROSHIN N, AGED 22 YEARS S/O PRADEEPAN, NADUVILEKANDI PARAMBIL ,VELLARAVALLY P.O.VELLARVALLY, KANNUR DISTRICT.** **BY ADVS. SRI.JACKSON JOHNY SRI.MUHAMMED YASIL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** - **2 THE RANGE OFFICER, (OR NO 2 OF 2017 OF FOREST RANGE OFFICE, KOTTIYOOR FOREST RANGE) KANNUR DISTRICT** - **3 THE CHIEF CONSERVATOR OF FORESTS, NORTHERN CIRCLE, KANNOTHUMCHAL, THANA P.O.KANNUR, KANNUR DISTRICT-6700012.** - **4 THE DEPUTY FOREST CONSERVATOR, DIVISIONAL FOREST OFFICE, KANNOTHUMCHAL, KANNUR-6700012.** W.P.(C) No. 22680 of 2019 **==> picture [20 x 9] intentionally omitted <==** **5 DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, KANNOTHUMCHAL, KANNUR-6700012.** ## **OTHER PRESENT:** ## **SRI. SANDHESH RAJA SPL GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No. 22680 of 2019 ..3.. ## **P.B.SURESH KUMAR, J.** ## **-------------------------------------** ## **W.P.(C) No.22680 of 2019** ## **--------------------------------------** ## **Dated this the 18[th] day of December, 2019** ## **JUDGMENT** Petitioners are accused in a case registered by the second respondent as O.R.No.2 of 2017 under Sections 27(1) (e)(iii) and (iv) and 52 of the Kerala Forest Act, 1961 (the Act). After investigation, a final report has been filed by the second respondent, and the case is now pending trial before the Judicial Magistrate of the First Class, Kuthuparamba. Ext.P3 is the final report in the case. The allegations against the petitioners in the case is that they have trespassed into the forest and removed a fallen tree in the category of “Xylia Xylo Corpa”, after cutting the same into pieces using a saw, and thereby caused loss to the Government to the tune of Rs.900/-. The offence alleged against the petitioners being an offence which could be compounded under Section 68 of the Act, petitioners preferred an application before the competent W.P.(C) No. 22680 of 2019 ..4.. authority for compounding the offence alleged against them. The application was rejected on the ground that the same cannot be considered when the case is pending trial before the competent court. Ext.P4 is the order issued by the competent authority in this connection. Ext.P4 has been challenged by the petitioners before this Court in Crl.M.C. No.2483 of 2019. In terms of Ext.P5 order, this Court set aside Ext.P4 order and directed the competent authority to consider the application afresh, holding that the pendency of the case before the criminal court is not a bar in the matter of considering the application for compounding. Thereupon, the competent authority passed Ext.P7 order rejecting the request made by the petitioners again, holding that as the offences alleged against them are of serious nature, the request cannot be considered. Ext.P7 is under challenge in the writ petition. 2. Heard the learned counsel for the petitioners as also the learned Government Pleader. 3. The learned counsel for the petitioners contended that insofar as the offences alleged against the petitioners are offences that could be compounded under Section 68 of the Act, the competent authority has no W.P.(C) No. 22680 of 2019 ..5.. discretion to reject the same, if an application is made for the said purpose and the rejection of the request on the ground that the offences are of serious nature, is unsustainable. In support of the said contention, the learned counsel placed reliance on the order passed by this Court in Crl.M.C. No.4301 of 2008. It was also contended by the learned counsel for the petitioners that the allegation against the petitioners is only that they have removed a fallen tree in the forest and that the loss caused to the Government being only Rs.900/-, on facts, it is a case where the competent authority ought to have compounded the offences alleged. 4. _Per contra,_ the learned Government Pleader submitted that merely for the reason that power has been conferred on the competent authority to compound an offence, it cannot be said that the power has to be exercised in all cases and that the competent authority, going by the scheme of the statute, has certainly the discretion to decide as to whether the power has to be exercised in a given case. According to the learned Government Pleader, Ext.P7 order, therefore, is well within the powers of the competent authority. ..6.. ## W.P.(C) No. 22680 of 2019 ## 5. I have considered the contentions taken by the counsel on either side. Section 68 of the Act reads thus: “ **68. Power to compound offences** : (1) Any forest Officer not below the rank of an Assistant Conservator of Forests may accept from any person, 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.” As pointed out by the learned counsel for the petitioners, it is seen that in the order passed in Crl.M.C. No.4301 of 2008, this Court took the stand that insofar as the offence involved in that case, viz, Section 27 of the Act being an offence that could be compounded, the competent authority was not within its discretion to compound or not to compound. It is seen that later in **Mathew** v. **State of Kerala** (2011 (3) KLT 1), another learned Judge took a contrary view in the matter. It was held in that case that the question whether the offence is to be compounded or not is a matter within the discretion of the W.P.(C) No. 22680 of 2019 ..7.. officer concerned which he has to exercise, having regard to the nature of the offence, loss caused to the Government and other relevant circumstances, if any. In the light of the conflicting views expressed on the point by the two learned Judges of this Court, though it is obligatory for this Court to make a reference of the issue to the Division Bench, I am not resorting to the said course, as I find that in **State of Jharkhand and Another** v. **Govind Singh** ((2005) 10 SCC 437), the Apex Court has expressed its opinion in tune with the decision of this Court in **Mathew** . In **Govind Singh,** the Apex Court has interpreted an identical provision as one conferring discretion to the competent authority to decide as to whether compounding of the offence should be permitted in a judicial manner after recording the reasons. The contention taken by the learned counsel for the petitioners that insofar as the offence alleged against the petitioners is one falling within the scope of Section 68 of the Act, the competent authority has no discretion to take a decision as to whether the compounding should be permitted, is therefore, rejected. 6. Coming to the facts of the case, as pointed out by the learned counsel for the petitioners, though the offences W.P.(C) No. 22680 of 2019 ..8.. alleged against the petitioners are punishable under Sections 27(1)(e)(iii) and (iv) and 52 of the Act, the allegation against the petitioners, in essence, is that they have cut and removed a fallen tree from the forest. Ext.P3 final report in the case instituted against the petitioners indicates that cost of the fallen tree which was allegedly removed by the petitioners was only Rs.2000/-. It is also seen from Ext.P3 that the logs of the tree removed by the petitioners have been recovered from them and sold in auction and the loss caused to the Government on account of the offences allegedly committed by the petitioners has been mitigated to the extent of Rs.900/-. True, the offences alleged against the petitioners are punishable with imprisonment for a term which shall not be less than one year. The specific pleading in the writ petition is that the petitioners, who were students, were not aware of the fact that a fallen tree or its branches cannot be removed from the forest. An explanation of the said nature cannot be accepted. Nevertheless, having regard to the fact that the petitioners have only removed branches of a fallen tree and the fact that the same was worth only Rs.900/- and also the fact that the petitioners were persons aged 21 and 22 years, I W.P.(C) No. 22680 of 2019 ..9.. am of the view that this is a case where the competent authority should have compounded the offences alleged against the petitioners by accepting the loss caused to the Government by way of compensation. In the result, the writ petition is allowed, Ext.P7 order is set aside and the competent authority is directed to compound the offences alleged against the petitioners in the manner provided for under the Act after accepting Rs.900/- by way of compensation. **Sd/P.B.SURESH KUMAR JUDGE** ds 10.12.2019 W.P.(C) No. 22680 of 2019 ..10.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE MAHAZAR (FIRST REPORT) IN O.R. NO 2 OF 2017 OF KOTTIYOOR FOREST RANGE OFFICE, KANNUR DISTRICT** **EXHIBIT P2 A TRUE COPY OF THE STATEMENT DATED 14.12.2017 GIVEN BY THE PETITIONERS** **EXHIBIT P3 A TRUE COPY OF THE CHARGE SHEET DATED 26.2.2018 IN OR NO 2 OF 2017 OF KOTTIYOOR FOREST RANGE OFFICE, KANNUR DISTRICT** **EXHIBIT P4 A TRUE COPY OF TH COMMUNICATION DATED 21.6.2018 ISSUED BY THE 4TH RESPONDENT EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 1.4.2019 OF THIS HON'BLE COURT IN CRL.M.C NO 2483/2019** **EXHIBIT P6 A COPY OF THE REPRESENTATION DATED 11.4.2019 SUBMITTED BEFORE THE 5TH RESPONDENT** **EXHIBIT P7 A TRUE COPY OF TH ORDER DATED 9.5.2019 ISSUED BY THE 5TH RESPONDENT**