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. 3767 of 2007 ( ) --------------------------- CC.106/2007 of J.M.F.C.-II(FOREST OFFENCES),MANJERI PETITIONER/ACCUSED: --------------------- M. MOHAMMED ALI ,S/O.MAYILAPPURAM MAMMU HAJI, CHEMBARA DESOM, KERALA ESTATE VILLAGE NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.V.V.SURENDRAN COMPLAINANTS/RESPONDENTS: --------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. DEPUTY RANGER FOREST STATION, KARUVARAKKUNDU. BY 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. 3767 of 2007 ----------------------------------------- Dated this the 8th day of March, 2010 ORDER This petition is filed to quash Annexure-A2 charge-sheet. 2. According to prosecution, petitioner trespassed into a reserve forest and cultivated the property with arecanut trees etc. He had also filed a case as O.A.7/2004 before the Forest Tribunal and it was dismissed and therefore, he was called upon to answer the charge under Section 27(1) (e) (iv) and (i) of the Kerala Forest Act. 3. Learned counsel for petitioner submitted that petitioner is proceeded against on the ground that he is the owner of the property, who had filed case before the Forest Tribunal etc. In fact, petitioner is only the power of attorney holder of one Moideen on whose behalf O.A.7/2004 was filed. According to the case set up in O.A.7/2004, Moideen is the owner of the property and he had contended that he had cultivated the property etc. Petitioner who is only a power of attorney holder is being prosecuted for offences under the Forest Act for trespass and Crl.M.C.No. 3767 of 2007 2 cultivation in the reserve forest. Hence he seeks for quashing Annexure-A2 charge-sheet. 4. Learned Public Prosecutor submitted that O.A.7/2004 filed by petitioner is dismissed and disputed property is found to be a part of reserve forest and hence petitioner's contention cannot be accepted. On hearing both sides and on going through documents produced, I find some merit in the contentions raised by petitioner's counsel. In the cause title order passed in O.A.7/2004 which is marked as Annexure-A1, it is clearly mentioned that M.Moideen is represented by power of attorney holder, Muhammed Ali, S/o. Mayilappuram Mammu Haji. 5. It is clear that petitioner was filing O.A.7/2004 only as a power of attorney holder of one Moideen, who was the applicant in the said case. The contentions raised in the counter affidavit filed by Divisional Forest Officer are extracted in paragraph 3. It is stated therein that the scheduled property is a vested forest encroached upon by applicant. The applicant in the proceedings before the Forest Tribunal can only be Moideen and not Muhammed Ali. The issue in the case was whether the property belongs to Moideen or it is a reserve forest. The question Crl.M.C.No. 3767 of 2007 3 whether petitioner was not the owner of the disputed land was not considered at all in the said petition. 6. In such circumstances, I find that there is some mistake on the part of the forest officials in initiating the proceedings against petitioner, on the ground that he filed O.A.7/2004. It appears that petitioner himself was treated as the alleged owner of the property instead of the person who claimed ownership. But, it is clear from the cause title of Annexure-A1 that petitioner is only the power of attorney holder of one Moideen. Therefore, allegations made in the charge-sheet that he filed O.A. 7/2004 and that it was dismissed etc. are not correct. 7. In the above circumstance, I find that charge-sheet laid against the power of attorney holder of Moideen who claimed to be the owner of the disputed property cannot be sustained. It is relevant to note that as per mahazar, petitioner was not even present in the property at the time of inspection by forest officials. In the above circumstances, the following order is passed. Crl.M.C.No. 3767 of 2007 4 1) Annexure-A2 charge-sheet filed against petitioner is quashed. 2) Petitioner shall not be proceeded against on the basis of Annexure-A2 charge. Petition is allowed. K.HEMA, JUDGE cms