IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 8TH DAY OF MARCH 2010/17TH PHALGUNA,1931 Crl.MC.No. 3766 of 2007 ( ) --------------------------- CC.107/2007 of J.M.F.C.-II(FOREST OFFENCES),MANJERI PETITIONER/ACCUSED: --------------------- NECHIKKADAN HAMEED S/O.ABDU HAJI,NECHIKKADAN HOUSE KAIKUDU P.O.KERALA ESTATE, CHERUMBA DESOM NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS/COMPLAINANTS: ------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. DEPUTY RANGER FOREST STATION, KARUVARAKKUNDU. BY SPL.PUBLIC PROSECUTOR(FORESTS) SRI.P.M.PAULOSE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------------------- Crl.M.C.No. 3766 of 2007 -------------------------------------------- Dated this the 8th day of March, 2010 ORDER This petition is filed by petitioner to quash Annexure-A2. 2. Annexure-A2 is a charge-sheet filed against petitioner alleging offences under Sections 27(i)(e)(iv) and (i) of Kerala Forest Act, 1961 (Amendment Act, 1993) ('the Act' for short). According to prosecution, on 4.7.2004 while the forest officials were on duty, they found that petitioner encroached upon the forest and also cultivated the property which is having an extent of about 30 cents. However, petitioner filed a case as O.A.9/2004 before the Forest Tribunal, but it was dismissed. 3. Learned counsel for petitioner submitted that petitioner filed O.A.9/2004 and took up a contention that the property originally belonged to one Muhammed Sahib in the year 1963 and it was taken on oral lease prior to 1963 by one Antony. It was cultivated with arecanut trees etc. by Antony long prior to the appointed day. The applicant purchased the property from Crl.M.C.No. 3766 of 2007 2 Antony only in 1998. He also obtained purchase certificate in 1999 from the Land Tribunal. Therefore, the property is not a reserve forest, but it is a private property and hence case was filed seeking declaration that the scheduled property was not a private forest etc. 4. Therefore, petitioner cannot be proceeded against for cultivation of property. It is also pointed out that cultivation was effected about 12 years prior to the alleged date of occurrence and petitioner was not even in possession of the property at that time. Therefore, petitioner has not committed any offence as alleged, it is submitted. 5. Learned Public Prosecutor argued that there is a declaration as per Annexure-A1 that disputed property is a forest. The petition filed by petitioner before Forest Tribunal was dismissed also. In such circumstances, petitioner cannot contend that the disputed property is a private property and he cannot say that he is not liable under the Act, it is submitted. 6. On hearing both sides and on going through documents produced, it appears that petitioner's case is that he had given possession of property only in 1998 and prior to that, he was not Crl.M.C.No. 3766 of 2007 3 cultivating the property. Though petitioner's specific contention is that he was not in possession of the property prior to 1998 and hence he is not liable for the cultivation which is effected 12 years back, petitioner has to prima facie convince the court that he had purchased the property only in 1998. But those facts are disputed by respondents. 7. In the above circumstances, in the absence of any document to atleast prima facie establish that petitioner was not responsible for cultivation etc., there is no ground to interfere with charge-sheet laid against petitioner, especially, since as per Annexure-A2, it is held that disputed property is the forest and petition filed by petitioner before Forest Tribunal was dismissed. It is submitted that an appeal is pending against Annexure-A1 order. But, that alone may not be a reason to drop the proceedings against petitioner. 8. On the facts of this case, it is necessary to resolve relevant disputed facts, to arrive at a decision in favour of petitioner. But, Section 482 Cr.P.C. does not permit this court to resolve such factual disputes in a petition filed under the said Section. However, petitioner is at liberty to establish his case Crl.M.C.No. 3766 of 2007 4 before the trial court at appropriate stage. But on the basis of documents produced before me alone, it cannot be said that Annexure-A2 charge-sheet is baseless. Petition is dismissed. K.HEMA, JUDGE cms