IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.MC.No. 806 of 2008() ---------------------------------- CC.1581/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... PETITIONERS/ACCUSED: ------------------------------------ 1. PAUL, S/O. JOSEPH, VELIYATH HOUSE, NEAR DEVAMATHA HOSPITAL, KORATTY. 2. SANKARAN, S/O. NARAYANA MENON, AREEKKARA VEETIL, CHITTARIKKAL DESOM, MURINGOOR THEKKUMURI VILLAGE, KORATTY. 3. VIJAYAN, S/O. KRISHNAN, ERUVELI HOUSE, VALOOR DESOM, KALLOOR VADAKMMURI VILLAGE, KORATTY. 4. YACOB ALUMKAL, PEECHANIKODE DESOM, ANGAMALY VILLAGE, ANGAMALY. 5. POULOSE, S/O. ITTOOP, KOZHIPPATTU MANDI VEEDU, CHRANGARA DESOM, KORATTY KIZHIKKUMURI VILLAGE, KORATTY. BY ADV. MR.K.ANAND SMT.LATHA KRISHNAN RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 806 OF 2008 =========================== Dated this the 30th day of November,2009 ORDER Petitioners are the accused in C.C.1581/2007 on the file of Judicial First Class Magistrate Court, Chalakkudy taken cognizance for the offence under section 379 read with section 34 of Indian Penal Code on Annexure-I final report. Prosecution case is that petitioners being the Manager, Engineer, Supervisor and Helper of Vaigai Thread Processors Ltd, while being employed in their capacity,during the period 5.4.2001 to 6.8.2001 cut and removed valuable trees including sandalwood trees, aquatia etc. from the property granted on lease to Vaigai Thread Processors Ltd to the tune of Rs.4,33,400/- and thereby committed the offence. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that by Annexure V judgment when Vaigai Processors challenged the demand made for payment of Rs.4,33,400/-, being the value of the timber trees allegedly cut W.P.(C) 38833/2003 was filed and in the Writ Petition this court directed respondents to Crl.M.C.806/2008 2 furnish the details of all the materials to the petitioners therein granting liberty to file a detailed objection after receipt of such details and directed the respondents to decide the liability if any thereafter considering the objections. It is contended that the liability was not fixed and therefore the proceedings is bad. It is contended that the entire land let out to the Company was barren land and the trees were planted by the Company and in such circumstance the trees belong to the Company and hence there cannot be an offence under section 379 of Indian Penal Code by cutting the trees of the Company by its employees and in such circumstance the case is to be quashed. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners submitted that when the property obtained on lease was barren land and all the trees were planted by the lessee, no offence will lie for cutting the trees planted by the Company and therefore continuation of the proceedings is only an abuse of process of court. It is also argued that in any case when by Annexure V judgment this court directed the respondents to fix the liability, prosecution will not lie without fixing the liability and therefore on that Crl.M.C.806/2008 3 ground it is to be quashed. 4. Learned Public Prosecutor pointed out that even if the petitioners as lessees had effected improvements, they are not entitled to remove the trees and in any case when removal of sandalwood is prohibited even from the private land and the sandalwood trees were cut and attempt was made to partly burn the sandalwood pieces, the case cannot be quashed. 5. Though when demand made for payment of Rs.4,33,400/- being the value of the trees allegedly cut and removed by the Company, the Company had filed W.P.(C) 38833/2003 and by Annexure V judgment this court directed the respondents to furnish the materials to the Company and granted opportunity to the Company to file objection and then fix the liability, fixation of the liability is on the quantum of the value of timber, cut and removed. It will not affect the criminal liability if any, against the petitioners. In such circumstances, based on Annexure V judgment petitioners are not entitled to get the case quashed. 6. As rightly pointed out by the learned Public Prosecutor, when prosecution case is that the Company without authority or right cut and removed trees from the leasehold property including the sandalwood trees, it Crl.M.C.806/2008 4 cannot be said that an offence under section 379 of Indian Penal Code is not attracted, without fixation of the liability as directed by Annexure V judgment. The question whether petitioners cut and removed the trees and if so whether the Company or its employees are entitled to cut and remove the trees from the leasehold property are all matters to be considered at the time of trial and based on the said contentions the case cannot be quashed. Hence granting liberty to the petitioners to seek an order of discharge under section 239 of Code of Criminal Procedure, if no charge is framed and to raise all the contentions raised herein at the time of trial, petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006