IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Crl.MC.No. 4301 of 2008() ------------------------- AGAINST THE ORDER IN CMP.5491/2007 Dated 28/11/2007 CC.102/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... PETITIONERS: ACCUSED 1 TO 3 ---------------------------------------------------- 1. K.GIREESHAN, S/O. V. RAMAN MENON, KAIVALYAM, 38/332 A, NANDANAM, KARITHALA CROSS, KARSHAKA ROAD, COCHIN -16. 2. M.B. MOHAN, S/O. BHASKARAN, PLOT NO. 135, SAGARIKA, IST FLOOR, JAWHAR NAGAR, KADAVANHARA, COCHIN -20. 3. PRAKASH VASUDEVAN, 89 A, 9TH FLOOR, VICTORIA GARDEN, 100 FT. ROAD, COVAMBEDU, CHENNAI 600 107. BY ADV. SRI.M.C.JOHN SRI.C.PRABIN BENNY RESPONDENTS: COMPLAINT:- ------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE FOREST RANGE OFFICER, THAMARASSERY (O.R. NO. 9/2001) 2. THE DIVISIONAL FOREST OFFICER, CIVIL STATION, KOZHIKODE. BY PUBLIC PROSECUTOR SHRI. SURESH KUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ------------------------------- CRL. M.C No. 4301 OF 2008 ------------------------------- Dated this the 26th November, 2008. O R D E R On 16.3.2001 the Forest Range Officer, Thamarassery registered a case as O.R.9/01 against the three petitioners herein for offences punishable under Section 27(1)(e)(i)(ii),(iii) and (iv) of the Kerala Forest Act, 1961 read with Section 2(i) and (iv) of the Forest (Conservation) Act 1980 alleging that a portion of the shed having the shape of a triangle constructed by the petitioners in their own property was overlapping into the adjacent vested forest to a length of 1.5 mtrs. The shed was constructed about five years prior to the inspection and the overlapping portion was demolished and the encroachment was abated and the property was resumed. Since the petitioners felt that they were unnecessarily prosecuted by pursuing the matter in C.C.102/2005 on the file of the Judicial Magistrate of First Class II, Thamarassery, they approached this Court by filing Crl. M.C.2208/07 for quashing the said C.C case. As per Annexure II order dated 13.8.2007 this Court permitted the petitioners to plead for a discharge before the learned Magistrate. Crl. M.C.4301/2008 2 But the learned Magistrate had already framed the charge against the petitioners. Hence their application for discharge was rejected. Thereupon, the petitioners filed Crl. R.P.3942/2007 before this Court seeking permission to compound the offence under Section 69 of the Kerala Forest Act, 1961. As per Annexure III order dated 12.11.2007 this Court permitted the petitioners to move the Magistrate for permission (if it was necessary) to compound the offence by the department under Section 68 of the Kerala Forest Act, 1961. The petitioners thereafter moved the Magistrate by filing C.M.P.5491/07 seeking permission of the court to compound the offence before the Divisional Forest Officer. As per Annexure V order dated 28.11.2007 the learned Magistrate allowed the said application but clarified that the Divisional Forest Officer could dispose of the compounding petition on its merits using his discretion. Thereafter the petitioner was served with Annexure VIII communication dated 30.5.2008 to the effect that the Divisional Forest Officer, Kozhikode had informed that the offence could not be compounded since the occurrence involves encroachment into forest area and also infraction of the Forest (Conservation) Act. The petitioner hence seeks to quash that part of Annexure V order passed by the Magistrate observing that the question of Crl. M.C.4301/2008 3 compounding the offences is within the discretion of the DFO. The petitioner also challenges Annexure VII communication. 2. Section 68 of the Kerala Forest Act gives any Forest Officer not below the rank of an Assistant Conservator of Forests to 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, such Officer is given the power to release the same on payment of the value thereof as estimated by such officer or confiscate such property to the Government. Sub-section (2) of Section 68 says that on the payment of such sum of money for such value or both, as the case may be, to such officer, the accused person, if in custody, shall be discharged and the property seized shall be released and no further proceedings shall be taken against such person or property. Except in the case of offences falling under Section 62 or Section 65 of the Kerala Forest Act all other offences are compoundable. Here the principal offence alleged against the petitioner is one punishable under Section 27 of the Kerala Forest Act, which is a compoundable offence. Hence it was not within the discretion of the Divisional Forest Officer to Crl. M.C.4301/2008 4 compound or not to compound. To that extent Annexure V order shall stand modified. The Divisional Forest Officer who was moved under Section 68 had a duty to hear the petitioner and pass orders. All that the petitioner has been served with is only a communication from the Forest Range Officer stating that the Divisional Forest officer has informed that the petitioners' application cannot be allowed. The offence charged against the petitioner under Section 27 of the Kerala Forest Act is clearly compoundable and the Divisional Forest Officer, if moved again, shall dispose of the application under Section 68(1) of the Kerala Forest Act, in accordance with law, after giving the petitioners an opportunity of being heard and shall pass a speaking order, which shall be communicated to the petitioners. No doubt, the offence punishable under the Forest (Conservation) Act being not compoundable, will have to be dealt with by the Magistrate appropriately after the composition of the offence punishable under the Kerala Forest Act. Crl. M.C. Is disposed of accordingly. V. RAMKUMAR JUDGE jj