IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 Crl.MC.No. 294 of 2011() ------------------------ CC.411/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNI OR NO.9/2003 OF FOREST RANGE OFFICE, VADASSERIKARA .................... PETITIONER(S): 5TH ACCUSED -------------------------- ROY MATHEW, S/O. K.M.MATHEW, MULAMOOTIL HOUSE, SKYLINE ZIRCON APARTMENTS, DOCTORS LANE, PANAMPILLY NAGAR, ERNAKULAM. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S)/COMPLAINANT: --------------- 1. STATE OF KERALA, REPRESNTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682301. 2. FOREST RANGE OFFICER, VADASSERIKARA FOREST RANGE,PATHANAMTHITTA-689305. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.294 of 2011 -------------------------------------- Dated this the 3rd day of February, 2011. ORDER Petitioner is accused No.5 in C.C.No.411 of 2006 of the court of learned Judicial First Class Magistrate, Ranni facing trial for offences punishable under Sections 4(1) and 13(1) of the Kerala Preservation of Trees Act (for short, “the KPT Act”) and Rules 3(iii) and 10 of the Kerala Forest Produce Transit Rules (for short, “the Rules”) on the final report submitted by the Range Officer, Vadasserikkara in O.R.No.9 of 2003. Case is that on 12.07.2003 the forest officials while on patrol duty found accused Nos.1 and 2 transporting teak timber in a jeep bearing registration No.KL-03/A-7085 without any pass for such transit. It is alleged that on questioning accused Nos.1 and 2 confessed to the forest officials that the teak timber was cut and removed from the property of petitioner. Annexure-1 is the form-I, report against accused Nos.1 to 3. Annexure-2 is the form-II, report stating the place of occurrence as property in the possession of petitioner and his brother, George Mathew. It is contended in this proceeding that no offence under the Act or the Rules is made out since even according to the prosecution the teak tree was cut down from the residential compound of petitioner and in so far as there is no case that it is a residential compound exceeding one hectare there is no restriction of cutting of trees in view of Section 4 of the Act. Further argument is that since the teak tree is not a 'forest produce' as defined in the Act or the Kerala Forest Act, there could be no Crl.MC No.294/2011 2 violation of the rules. It is contended that there is absolutely no material to show that the teak tree was cut and removed from his property. It is contended that none of the records produced by the prosecution would show that sanction under Section 18 of the Act is obtained to proceed against petitioner and others. It is contended that during the relevant time petitioner was at Ernakulam looking after his ailing wife. Cutting of tree at any rate was without the knowledge or consent of petitioner. In support of the contention learned counsel has placed reliance on the decisions in Augustine Mathew v. State of Kerala (2009 (3) KLT 560) and Sukumaran v. State of Kerala (2010 (1) KLT 546). Learned counsel however has requested that petitioner may be allowed to withdraw this petition and may be permitted to appear in the trial court through lawyer granting exemption from personal appearance under Section 205 of the Code of Criminal Procedure (for short, “the Code”). Learned counsel has highlighted the difficulties of petitioner in personally appearing in court on every date of posting. Having regard to the decision of the Supreme Court in TGN Kumar v. State of Kerala and others (2011 (1) KHC 142) I do not think it proper to issue any such direction in this proceeding. But I make it clear that if petitioner preferred an application under Section 205 of the Code learned Magistrate shall consider that application having regard to the circumstances of the case, nature of allegations made against petitioner and bearing in mind Crl.MC No.294/2011 3 the decision of the Supreme Court in Basavaraj R. Patil and others v. State of Karnataka and others ((2000) 8 SCC 740) and pass appropriate orders on that application. Coercive steps if any initiated against petitioner will stand in abeyance for a period of two months from this day or till learned Magistrate passes appropriate orders on the applications preferred by the petitioner, whichever is earlier. During such period petitioner shall prefer appropriate applications in the court below. This petition is disposed of in the above observation and direction and without prejudice to the right of petitioner to take up all appropriate contentions/pleas in the trial court. THOMAS P.JOSEPH, Judge. cks