IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 CRL.A.No. 1614 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.763/2011 Dated 19/08/2011 STC.3558/2008 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ BABU GEORGE, PROPRIETOR, STENZIL WOOD INDUSTRIES, ADIMALI P.O., IDUKKY DISTRICT. BY ADV. SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN SMT.J.DEEPTHI ROSE RESPONDENT(S): ACCUSED PERSONS ------------------------------ 1. PRADEEP KUMAR, FORMERLY PROBATIONER RANGE OFFICER, ADIMALI FOREST RANGE, ADIMALI, NOW TRANSFERRED TO FOREST TRAINIG CENTRE, VALAYAR. 2. JOCOB, FORMERLY DEPUTY RANGE OFFICER, PANAMKUTTY FOREST STATION, NOW DEPUTY RANGE OFFICER, MUNNAR FOREST RANGE, MUNNAR. 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SIRAJ KAROLY FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 1614 of 2011() 2 PETITIONERS EXHIBITS: ANNEXURE-1 : A TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN CRL.R.P.NO. 2 OF 1997 DATED 26.02.1998 ANNEXURE-2 : A TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN CRL.M.C.NO.8185 OF 2001 DATED 11.02.2005 ANNEXURE-3 : A TRUE COPY OF THE ORDER PASSEDE BY THE HONOURABLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (CRL.NO.4381 OF 2006) DATED 29.02.2008 ANNEXURE-4 : A TRUE COPY OF THE CERTIFIED COPY OF THE PROCEEDING SHEET OF JFCM-I, THODUPUZHA IN ST NO.358 OF 2008 ANNEXURE-5 : CERTIFIED COPY OF THE ORDER PASSED BY THE LEARNED JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, THODUPUZHA IN ST CASE NO.3558 OF 2008 DATED 28.10.2009 RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE. V.K.MOHANAN,J ------------------------------ Crl. A.No.1614 of 2011 ------------------------------------------------- Dated this the 26th day of September, 2011 JUDGMENT The appellant is the complainant in ST.No.3558 of 2008 on the file of the Judicial Magistrate of the First Class-I, Thodupuzha. As he is aggrieved by the order dated 28.10.2009, issued by the learned Magistrate, acquitting the accused u/s.256 (1) of Cr.P.C., he preferred this appeal, challenging the above order. 2. The case of the appellant is that he was the proprietor of the saw mill by name Stenzil Wood Industries at Adimali, Kallarkutty Road, Post Box No.8, Adimali and he purchased 2.855 Cubic Meters of Anjili Timber on 03.08.93 from one Mr.Mohanan, as per Village Certificate No.52/93 dated 28.01.1993. The above said material was sawn and kept in his Saw mill for sale in the open place. The purchase of the above said Timber was recorded in the stock register of the Sawmill, which was regularly written during the course of business. It is the further case of the appellant that on 20.08.93 the respondents, who were working in the Panamkutty Forest Station and Adimali Range Office, came to the Saw mill and Crl. A.No.1614 of 2011 2 seized the above said 138 pieces of Anjili Timber (0.9866 Cubic Meters), in spite of the fact that the Village Certificate and the stock register were produced before them, and the said seizure were effected vexatiously and maliciously, under the pretext of seizing the property which is liable for confiscation under the Kerala Forest Act, even without preparing a mahazar or an inventory. 3. According to the appellant, since the action of the respondents, are malicious and vexatious and seizure of Anjili Timber was clearly a wrongful seizure, coming within the sweep of Section 65 of the Kerala Forest Act, the appellant has filed C.M.P.No.3641 of 1994, a private complaint before the Judicial First Class Magistrate Court, Adimali with a prayer to initiate proceedings against the respondents under Section 65 of the Kerala Forest Act. The learned Magistrate took cognizance of the matter and called for a report from the Forest Range Officer, Adimali. Consequently, the Forest Range Officer submitted a report stating that O.R.No.49/93 is booked against the appellant and the same is pending. It was further stated that another case, i.e, O.R.No.24/93 is also registered against the petitioner. Based upon the above report, the learned Magistrate dismissed Crl. A.No.1614 of 2011 3 the complaint. According to the appellant, aggrieved by such an order of dismissal of his complaint in CMP No.3641 of 1994, he approached this Court by filing Crl.R.P.No.2 of 1997 and this Court, after having called for the records connected with the case and on examination of the same, found that in OR.49/1993, the appellant is not an accused and the role played by the appellant in OR.24/1993 also is not clear and it was also found that the appellant is not an accused in OR.No.24/93 also. Thus, after appreciating the facts and circumstances of the case, and evaluation of the materials on record according to the appellant, this Court has set aside the order of dismissal in CMP No.3641/1994 and directed the court below to restore CMP.No.3641/1994 on its file and to proceed with the complaint in accordance with law. A true copy of the order passed by this Court in Crl.R.P.No.2 of 1997 dated 26.02.1998 has already been produced as Annexure-I in Crl.L.P.No.763/2011. 4. It is also the case of the appellant, that in the meanwhile, the respondents herein approached this Court, to quash the above complaint, by filing Crl.M.C. u/s.482 of Cr.P.C and this Court dismissed the said petition by judgment dated 11.2.2005 in Crl.M.C.8185/2001. According to the appellant Crl. A.No.1614 of 2011 4 challenging the above order of this court, the respondents herein had approached the Honourable Apex Court by filing special leave to appeal (Criminal) No.4381/2006 and the apex court has dismissed the special leave petition by order dated 29.2.2008. 5. Thereafter, according to the appellant, the respondents herein again approached the court of Chief Judicial Magistrate, for the transfer of the case which is instituted upon the private complaint at the instance of the appellant and the learned Chief Judicial Magistrate has allowed the said petition and transferred CMP No.3641/1994, which was already re-numbered as ST No.114/2001 in the Munsiff - Magistrate court, Devikulam to the court of Judicial First Class Magistrate-I, Thodupuzha. Thus, on transfer of the above case, to the court of Judicial Magistrate of First Class-I, Thodupuzha, the learned Magistrate took the matter on file as ST.No.3558/2008 and thus, while the matter was pending before the trial court, the learned Magistrate, by the impugned judgment dated 28.10.2009 in ST No.3558/2008, acquitted the accused u/s.256(1) of Cr.P.C. It is the above order of the learned Magistrate under challenge in this appeal. 6. I have heard Sri.S.Radhakrishnan, learned counsel appearing for the appellant and Sri.Siraj Karoly, learned counsel Crl. A.No.1614 of 2011 5 appearing for the contesting respondent and Sri.K.S.Sivakumar, learned Public Prosecutor for the State. I have also perused the impugned order and other materials available on record . 7. From the materials available on records, it appears that before the actual commencement of the trial of the case, the matter was taken even up to the Honourable Apex Court and thereafter again taken in the trial court for further consideration and it is, at this stage, the learned Magistrate issued the above impugned order, acquitting the accused u/s.256(1) of Cr.P.C. It is stated in the impugned order as follows:- “ Earlier the case was posted for evidence of the complainant to 7.2.09 with a direction that complainant shall be present. Again case was posted to 4.5.09 for the evidence of the complainant. But he was absent on that day and case was adjourned to 4.7.2009. On 4.7.09 complainant was absent and on application case was adjourned to 1.8.2009 for the evidence of the complainant. On 1.8.09 also the complainant was absent and hence the case was adjourned to 26.9.09 and to this date for evidence of the complainant as N.F.T. L.C. He filed a petition for Crl. A.No.1614 of 2011 6 adjournment. I am satisfied that complainant is intentionally dragging the prosecution. Hence I am not inclined to adjourn the case again and again, even on production of medical certificate. I am satisfied that this is a fit case to invoke the section 256(1) of Cr.P.C. In the result, accused is acquitted u/s. 256 (1) of Cr.P.C.” (emphasis supplied) 8. The learned counsel for the appellant submitted that the above reason given by the learned Magistrate for acquitting the accused is incorrect and against the facts and procedural position of the case and in support of the above contention, the learned counsel invited my attention to Annexure-4 proceedings referred to in Crl. Leave Petition No.763/2011. 9. On the other hand, the learned counsel appearing for the contesting respondents vehemently submitted that the appellant is harassing the respondents for the last 18 years by preferring a vexatious and experimental complaint and no case is made out against the respondents and therefore, according to the learned counsel, the appeal itself is liable to be dismissed. 10. According to the learned counsel for the appellant, the appellant was present on 7.2.2008, but A1 was absent, though Crl. A.No.1614 of 2011 7 A2 was present. Therefore, the case was adjourned to 4.5.09. Thus, on 4.5.09, as the appellant as well as the accused were absent. Again the case was adjourned to 4.7.09 and on that day, the complainant was absent and the case was adjourned to 1.8.09, on which date the complainant was directed to be present. According to the learned counsel, Annexure-4 referred above, would show that on 1.8.09, the complainant was present, but the accused was absent and they prayed for evidence and accordingly, the learned Magistrate adjourned the case to 26.9.09 as last chance and recorded that, no further time would be granted, but the learned Magistrate under a wrong notion stated that the appellant was absent on 1.8.09. The proceedings recorded by the learned Magistrate on 1.8.2009 as seen in Annexure 4 referred to in Crl.L.P.No.763/2011, is extracted hereunder for convenience which read as “ 1.8.2009: Complainant present. Accused absent prays for evidence no further time last chance 26.9.2009”. Thus, on a perusal of Annexure-4, it can be seen that the reason stated by the learned Magistrate in the impugned order for acquitting the accused u/s.256(1) of Cr.P.C appears to be incorrect and against the facts. Though, the complainant was present on 1.8.09, the Crl. A.No.1614 of 2011 8 learned Magistrate due to the wrong notion, held that, the complainant was absent on 1.8.09 and the said finding appears to have considered as a ground for the satisfaction of the learned Magistrate to hold that, the complainant was intentionally dragging the prosecution. Therefore, the above finding, according to me, is factually incorrect and the consequent order is tainted due to non- application of mind and error apparent on the face of record. The submission made by the counsel for the respondents cannot be considered and appreciated at this stage in the absence of any evidence, which is yet to be adduced, during the trial. 11. It is also relevant to note that on the basis of the complaint preferred by the complainant, cognizance has already been taken and the Honourable Apex Court by its order, a copy which is produced as Annexure-3 in the previous proceedings u/s.378(4) of Cr.P.C, it is specifically held as follows:- “..........we are of the opinion that the High Court was correct in its view that the question as to whether the act of the petitioner herein is bona fide or not can be considered only at the trial; particularly having regard to the terminology used in Section 65 of the Kerala Forest Act, 1961 read with Section 69 thereof...........” Crl. A.No.1614 of 2011 9 Even though, the apex court has made such an observation, because of the wrong notion which, I stated above, the learned Magistrate acquitted the accused without going into the merits of the case in spite of the above observation of the Hon'ble apex court. Therefore, according to me, the above approach of the learned Magistrate cannot be approved, especially, in the light of the fact that the matter is hotly contested and gone up to the Honourable Supreme Court. Therefore, it is only just and proper to set aside the order impugned and give an opportunity to the appellant as well as the respondent to have a decision on merit. 12. In this, juncture, it is relevant to note that, this Court previously by a separate order dated 5.8.2011 in Crl.M.A.No.1228/2010 has condoned the delay of 27 days that occurred in filing the petition u/s.378(4) of Cr.P.C for special leave. Similarly, after considering the merits of the rival contentions raised in Crl.L.P.673/2011, by another order dated 19.8.2011, this Court has granted leave to file an appeal, based upon which, this appeal is instituted. In the result, this appeal is allowed, setting aside the order dated 28.10.2009 in ST Case No.3558/2008 of the court of Judicial Magistrate of First Class-I, Thodupuzha. Accordingly, Crl. A.No.1614 of 2011 10 the learned Magistrate is directed to restore the complaint i.e., S.T. Case No.3558/08 on the file of the court below on 27.10.2011, on which date the appellant/complainant and the respondents/accused are directed to appear before the trial court and the trial court is further directed to proceed with the above case in accordance with the procedure and law and dispose the same on merit. The appellant as well as the respondents are directed to co-operate with the trial so as to enable the trial court to have an earlier disposal of the case on merit, since the proceedings in the trial court was initiated during the year 1994. Considering the facts and circumstances involved in this case, and the long pendency of the matter, the learned Magistrate is directed to dispose of S.T.No.3558/08 as expeditiously as possible, at any rate, within 6 months from 27.10.2011, the date notified for the posting of the case and appearance of the parties. The appeal is allowed, accordingly. V.K.MOHANAN, JUDGE. pm