High Court of KeralaSingle Judge2019-04-01Application allowed; Annexure A4 set aside; dir...

Rahul T., Shikhil V.K., Roshin N. v. State of Kerala & Others (Crl.MC No. 2483 of 2019)

Case / Petition Number:Crl.MC.No.2483 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: The Honourable Mrs. Justice Mary Joseph
Judgment Date: 2019-04-01
Court Decision / Holding: The petition is allowed. Annexure A4 is set aside. The Deputy Forest Conservator, Kannothmuchal, Kannur, is directed to reconsider the application dated 05.06.2018 and pass appropriate orders within 10 days, reporting to the Judicial First Class Magistrate, Kuthuparamba. If compounding is accepted, the Magistrate shall close the proceedings and discharge the accused; if not, the Magistrate shall proceed with the trial.
Final Disposition: Application allowed; Annexure A4 set aside; directions issued to reconsider and determine the compounding application within 10 days; downstream effects on the magistrate’s proceedings as described.

Parties to the Case

Appellants / Petitioners

Rahul T.
Shikhil V.K.
Roshin N.

Respondents

State of Kerala
The Range Officer, OR No.2 of Forest Range Office, Kottiyoor Forest Range, Kannur District
The Chief Conservator of Forests, Northern Circle, Kannothumchal, Thana.P.O, Kannur
The Deputy Forest Conservator, Divisional Forest Office, Kannothmuchal, Kannur

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jackson Johny
• Sri. Muhammed Yasil

Counsels for Respondents

• Public Prosecutor, High Court of Kerala, Ernakulam
• The Range Officer, OR No.2 of Forest Range Office, Kottiyoor Forest Range, Kannur District
• The Chief Conservator of Forests, Northern Circle, Kannothumchal, Kannur
• The Deputy Forest Conservator, Divisional Forest Office, Kannothmuchal, Kannur

Case Synopsis & Summary

This criminal miscellaneous petition before the Kerala High Court seeks to quash Annexure A4, issued by the Deputy Forest Conservator, and to direct reconsideration of an application dated 05.06.2018 seeking to compound offences under the Kerala Forest Act, 1961. The petitioners are accused Nos. 1 to 3 in O.R. No.2/2017 of the Kottiyoor Forest Range and are facing trial in CC 504/2018 before the Judicial First Class Magistrate Court, Kuthuparamba. The core issue is whether Section 68 of the Kerala Forest Act permits compounding of an offence when a case is already pending in a court. Section 68 authorizes forest officers of a certain rank to accept compensation in lieu of prosecution, discharge the accused, and release the property, with a bar only for offences under Sections 62 and 65. The court considers Mathew N.J. v State of Kerala (2011) which supports compounding even if trial has begun, and Sivapalan v. R.T.O. (1996) which held that compounding may operate as a bar to further proceedings, though this judgment distinguishes that authority. It holds that cognizance by a court does not erase the authority of Section 68; the officer may still consider compounding and report to the court. The result is a set-aside of Annexure A4 and a direction to reconsider within 10 days, with the Magistrate to close proceedings if compounded or continue trial if not.

Provisions of Law Cited

Section 68, Kerala Forest Act, 1961Sections 62 and 65, Kerala Forest Act, 1961

Legal Doctrines & Maxims

Power to compound offences under Section 68 of the Kerala Forest Act, 1961
Discharge of accused and release of property upon payment; no further proceedings
Compounding can be exercised even when a criminal case is pending (Mathew N.J. v State of Kerala)
Composition may operate as a bar to further proceedings (Sivapalan v. R.T.O) – distinguished in this case

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that Section 68 of the Kerala Forest Act empowers a forest officer to accept compensation for a forest offence and thereby discharge the accused; such power can be exercised even if a case is pending before a court. They contended that the order Annexure A4 was not properly considered on 05.06.2018. Relying on Mathew N.J. v State of Kerala, they urged the Court to direct reconsideration of the application and to pass appropriate orders, discharging the accused if compounding is accepted. They urged that the court’s cognizance does not extinguish the officer’s power under Section 68.

Contentions of Respondents

The respondents argued that the possibility of compounding under Section 68 should not undermine ongoing judicial proceedings; once cognizance has been taken, the power to compound must harmonize with the criminal process. They contended that Annexure A4’s reconsideration should respect the statutory scheme and the pending trial; they asserted that the decision to set aside Annexure A4 should not be made lightly and that the matter may require careful balancing of the interests of justice and administrative efficiency.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mathew N.J. v State of Kerala and others	2011 (2) KHC 835	Positive	Court relied on this decision to hold that the DFO may consider compounding under Section 68 even when the case is pending before a court.
Sivapalan v. R.T.O	1996 (2) KLT 632	Distinguished	This decision held that compounding would operate as a complete bar to further proceedings; the present judgment distinguishes it, noting that cognizance has been taken and thus the officer’s power under Section 68 persists.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941** ## **Crl.MC.No. 2483 of 2019** **IN CC 504/2018 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA O.R NO. 2/2017 OF Kottiyoor Forest Range Office, Kannur** ## **PETITIONER/ACCUSED NOS. 1 TO 3:** |**1**|**RAHUL.T**| |---|---| ||**AGED 22 YEARS**| ||**S/O.SREEDHARAN, KAARATT HOUSE, VELLARVALLY.P.O.,**| ||**VELLARVALLY, KANNUR DISTRICT.**| |**2**|**SHIKHIL.V.K.**| ||**AGED 23 YEARS**| ||**S/O.SHANMUGHAN, VELLUVAKANDI HOUSE, VELLARVALLY.P.O.,**| ||**VELLARVALLY, KANNUR DISTRICT.**| |**3**|**ROSHIN.N.**| ||**AGED 22 YEARS**| ||**S/O.PRADEEPAN, NADUVILEKANDI PARAMBIL,**| ||**VELLARVALLY.P.O., VELLARVALLY, KANNUR DISTRICT.**| **BY ADVS. SRI.JACKSON JOHNY SRI.MUHAMMED YASIL** ## **RESPONDENT/STATE & COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA, ERNAKULAM.682031**| |**2**|**THE RANGE OFFICER,**| ||**(O.R.NO.2 OF 2017 OF FOREST RANGE OFFICE, KOTTIYOOR**| ||**FOREST RANGE), KANNUR DISTRICT.673001**| |**3**|**THECHIEF CONSERVATOR OF FORESTS,**| ||**NORTHERN CIRCLE, KANNOTHUMCHAL, THANA.P.O, KANNUR,**| ||**KANNUR DISTRICT-670012.**| **Crl.MC.No.2483 of 2019 2** **4 THE DEPUTY FOREST CONSERVATOR, DIVISIONAL FOREST OFFICE, KANNOTHUMCHAL, KANNUR670012.** **(SPL.PP) SRI. RAVIKRISHNAN.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2483 of 2019** **3** **C.R.** ## **ORDER** This proceeding is initiated, seeking to quash Annexure A4 order dated 21.06.2018 issued by the 4[th] respondent, who is the Deputy Forest Conservator, Divisional Forest Office, Kannothmuchal, Kannur and to direct him to consider the application dated 05.06.2018, seeking for a permission to compound the offence and to pass appropriate orders therein. Petitioners are accused Nos. 1 to 3 in O.R No.2/2017 of Kottiyoor Forest Range Office, Kannur District, which is now pending on the files of Judicial First Class Magistrate Court, Kuthuparamba as C.C No.504/2018. The grievance of the petitioners was that the application moved by them dated 05.06.2018 before the Deputy Forest Conservator, Divisional Forest Office, Kannothmuchal, Kannur was not considered by the authority for the reason that the case pending before the Judicial First Class Magistrate Court, Kuthuparamba as C.C No.504/2018 is scheduled for trial. Aggrieved by the said **Crl.MC.No.2483 of 2019 4** order, the petitioners are now before this Court in the captioned proceedings. 2. The power to compound the offence under the Kerala Forest Act, 1961 (for short 'the Act') is provided under Section 68 of the Act. Section 68 of the Act is extracted hereunder for convenient reference: “ **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.” 3. Section 68 of the Act empowers the forest officers not below the rank of Assistant Conservator of Forests to compound the offences by accepting a sum of money by way of compensation. On such payment, the accused is entitled to be discharged and seized property shall be released to him. The **Crl.MC.No.2483 of 2019** **5** exercise of the power under the section is barred in the case of offences under Sections 62 and 65 of the Act. 4. The words “reasonably suspected of having committed any forest offence” indicate that the power under Section 68 of the Act can be exercised at any stage prior to the court finds the guilt against the accused after holding trial. 5. In **Mathew N.J. v State of Kerala and others [2011 (2) KHC 835],** a learned Single Judge of this Court has allowed a similar application and issued direction to **Divisional Forest Officer** , Kannur to consider the application filed by the petitioners and pass appropriate orders in the light of the observations made therein. The court held in the case: “ 9. On going through S.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 S.68 of the Act when the case is pending before the Criminal Court. There is nothing in S.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.” 6. The learned single judge has also relied on **Crl.MC.No.2483 of 2019 6** **Sivapalan v. R.T.O (1996 (2) KLT 632)** to arrive at the decision in the case referred to supra, wherein this Court had held that once the offence is compounded such composition would operates as a complete bar to further proceedings. The court also found composition to have the effects of preclusion of the authority who initiated proceedings against the offender from proceeding further. 7. Therefore, for the reason that a criminal case has been taken cognizance of by a court of law, the authority of an officer contemplated under Section 68 will not be lost. In the result, the application stands allowed. Annexure A4 order stands set aside. The Deputy Forest Conservator, Divisional Forest Office, Kannothmuchal, Kannur, the 4[th] respondent is directed to reconsider the application filed by petitioners before them on 05.06.2018 and pass appropriate orders therein. The decision taken by the Divisional Forest Officer, Kannothmuchal, Kannur shall be communicated to the Judicial First Class Magistrate Court, Kuthuparamba on receipt of the information as to compounding of the offence, if any, the Magistrate shall close the proceedings of the **Crl.MC.No.2483 of 2019 7** petitioner and discharge him if he is in custody. If it is reported to the Magistrate that the offence is not compounded, the Magistrate shall proceed with the trial of the case. Consider the application within 10 days from the receipt of this order. ## **Sd/-** ## **MARY JOSEPH** **JUDGE** JJ/ **Crl.MC.No.2483 of 2019 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE MAHAZAR (FIRST REPORT) IN O.R.NO.2 OF 2017 OF KOTTIYOOR FOREST RANGE OFFICE, KANNUR DISTRICT.** **ANNEXURE A2 A TRUE COPY OF THE STATEMENT DATED 14.1.2017 GIVEN BY THE PETITIONERS.** **ANNEXURE A3** **A TRUE COPY OF THE CHGARGE SHEET DATED 26.2.2018 IN O.R.NO.2 OF 2017 OF KOTTIYOOR FOREST RANGE OFFICE, KANNUR DISTRICT.** **ANNEXURE A4 A TRUE COPY OF THE COMMUNICATION DATED 21.6.2018 ISSUED BY THE 4TH RESPONDENT.** //TRUE COPY// Sd/PA TO JUDGE