IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH APRIL 2010 / 10TH VAISAKHA 1932 Crl.MC.No. 1246 of 2010() ------------------------- CC.332/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES),PUNALUR .................... PETITIONER(S): FIRST ACCUSED ---------------------------- P.K.SULAIMAN, S/O.KUTTY RAWTHER, PEEDIKAYIL HOUSE, ALAPRA.P.O, MANIMALA, KOTTAYAM. BY ADV. SRI.C.M.STEPHEN RESPONDENT(S): COMPLAINANTS --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE RANGE OFFICER, FOREST RANGE OFFICE, THENMALA, THENMALA.P.O, KERALA STATE-691 308. BY PUBLIC PROSECUTOR SHRI K.M.FIROZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C.No.1246 of 2010 -------------------------------------- Dated this the 30th day of April, 2010. ORDER This petition filed under Section 482 of the Code of Criminal Procedure (for short, “the Code”) seeks to quash all proceeding in C.C.No.332 of 2007 pending before the Judicial First Class Magistrate Court-II (Forest Offices), Punalur for various offences under the Kerala Forest Act (for short, “the Act”). Allegation is that petitioner/accused No.1 tried to remove twelve pieces of thanni logs collected from the reserve forest illicitly and thereby violated the provisions of the Act. According to the respondents, investigation revealed that petitioner and others committed offences as alleged. Petitioner would say that the thanni tree was cut down by the railway authorities, placed for public auction on 05.01.2005 and he happened to purchase the thanni logs in auction. While he was transporting the same, the logs as well as the lorry were seized by respondent No.2 and there was an order of confiscation on 07.02.2005. Further case of the petitioner is that no transmit permit is required for transportation of thanni logs in view of notification, SRO No.246/1998 dated 17.12.1998. Learned counsel submits that the proceeding against petitioner/accused No.1 is an abuse of process of court. I have heard learned Public Prosecutor as well. Crl.M.C.No.1246/2010 2 2. So far as the contention that no transmit permit is required in view of the notification referred to above is concerned, it is open to the petitioner to raise that question before the court concerned at the appropriate stage. 3. So far as the contention that the logs in question were purchased by the petitioner in public auction held by the railway authorities on 05.01.2005 and the documents pertaining to that produced by the petitioner is concerned, that is a defence available to the petitioner in the course of trial and as held by this Court in Kurian v. State of Kerala (2007 (3) KLT 36) and the Supreme Court in Bharat Parikh v. Central Bureau of Investigation and another ((2008) 10 SCC 109) and Ramakrishna Sharma and others v. Inspector of Plantations and others (2008 (1) ILR Kerala 303) documents produced by the petitioner/accused No.1 cannot be considered for the purpose of quashing the complaint or proceeding under Section 482 of the Code. That is a defence available to the petitioner which he can make use of at the appropriate stage. Hence the request to quash the proceeding cannot be allowed. Learned counsel submits that petitioner is under threat of arrest since a non bailable warrant is pending against him. He seeks an order staying the operation of non bailable warrant. The Supreme Court in Manoj Narain Agrawal v. Shashi Agrawal and others (2009 (4) Supreme 85) has held that bail or exemption cannot be ordered while Crl.M.C.No.1246/2010 3 considering a petition filed under Section 482 of the Code. Therefore that request also cannot be allowed. Proper course open to the petitioner is to surrender before the court concerned and seek regular bail. Petition is dismissed with the above observation. Crl.M.A.No.1995 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks