IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.Rev.Pet.No. 74 of 2007() ---------------------------- CRA.205/2002 of ADDL. SESSIONS COURT (FAST TRACK) III, PALAKKAD CC.248/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- K.K. SOMAN, S/O.KELA, KUTTINAKUDIYIL, KANDALAM, KAIRADI P.O. BY ADV. SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE RESPONDENT: COMPLAINANT: --------------------------- THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.74 of 2007 ---------------------------------------- Dated this the 3rd day of November, 2009 ORDER The revision petitioner is the accused in C.C.No.248 of 1998 on the file of the Judicial Magistrate of the First Class, Alathur. The Forest Range Officer, Nelliampathy prosecuted the revision petitioner alleging offence under Section 27(1)(e)(iv) of Kerala Forest Act and Sections 9, 50 and 51 of Kerala Wild Life Protection Act, 1972. After the trial, the learned magistrate arrived a finding that prosecution had succeeded to establish offence under Section 27(1)(e)(iv) of Kerala Forest Act. Whereas no offence under Sections 9, 50 and 51 of Kerala Wild Life Protection Act was established. Consequently, the revision petitioner was convicted for offence under Section 27(1)(e)(iv) of Kerala Forest Act and sentenced to simple imprisonment for one year. For offence under Sections 9, 50 and 51 of Kerala Wild Life Protection Act the revision petitioner was acquitted. 2. Aggrieved by the conviction and sentence for offence under Section 27(1)(e)(iv) of Kerala Forest Act, he preferred Criminal Appeal No.205 of 2002 before the Sessions Court, Palakkad. Additional Sessions Court (Fast Track No.III), Crl.R.P.No.74 of 2007 2 Palakkad, to whom the appeal was made over, by judgment dated 24/1/2006 set aside the conviction and sentence of the trial court and the case was remanded to the trial court for fresh disposal. Assailing the legality, correctness and propriety of the above order remanding the case to the trial court for fresh disposal, this revision petition was filed. 3. A reading of paragraph 7 of the appellate judgment would be relevant for easy appreciation. Paragraph 7 reads as follows: “It is clear from the evidence of Pws.1 to 4 that PW4 has arrested the appellant from a place which according to them, is within the reserve forest at Kanthalam Section in Ayilamudy reserve forest. The said place of occurrence is not established to be within the reserve forest covered by Ext.P3 even though they produced Ext.P3 notification. In the said circumstances, I am of the view that an opportunity is to be given to the prosecution to prove the place of occurrence as one within the reserve forest covered by Ext.P3 notification. For the said aspect the matter is Crl.R.P.No.74 of 2007 3 to be sent back to the trial court for fresh consideration”. According to the counsel for the revision petitioner, all available evidence was recorded and it is not reliable to arrive a conclusion of guilt and that by remand, no purpose would be served the case would not be improved, and because of the remand, the revision petitioner is put to irreparable hardship and there is denial of justice. 4. In contra, the learned Public Prosecutor would submit that all available evidence are on record and that it would justify the conviction and sentence and there is no reason to set aside the conviction and sentence. 5. Going through the judgment of the trial court and that of the appellate court, I find that all evidence proposed by the prosecution was recorded and there is no material to come to a conclusion that any evidence was discarded or omitted to be recorded. In the above circumstance, remand of the case would no way improve the prosecution. Neither it would benefit the revision petitioner who is the accused. In the light of the submission made by the learned public prosecutor that no Crl.R.P.No.74 of 2007 4 further evidence remains to be adduced, I find that the remand of the case is not at all warranted. The appellate court should have disposed the appeal on merits. What was the purpose to be achieved by remanding the case and fresh disposal is not disclosed from the impugned judgment. In the above circumstance I find merit in the revision petition. Order remanding the case to the trial court for fresh disposal is not warranted and unsustainable. The appellate court should have disposed the appeal on merit in the light of the available evidence. In the result the revision petition is allowed. While setting aside the appellate judgment, the appellate court is directed to dispose the appeal on merits with the available evidence, untrammelled by the observations in the impugned judgment. Being an old appeal, it shall be given priority. P.S.GOPINATHAN, JUDGE skj.