Dismissed

State of Kerala v. Arakka Hamza

Kerala HC18 Sept 2008Crl.MC/826/2006

Case brief

AI extract

What is this about?

The Court dismissed petitions filed under Section 482 Cr.P.C seeking to set aside orders releasing seized forest articles. It held that the extraordinary jurisdiction under Section 482 Cr.P.C cannot be invoked to bypass the limitation period for appeals under Section 454 Cr.P.C, noting that the State failed to prefer such appeals.

What did the court decide?

The petitions challenging the orders releasing seized articles were dismissed. The respondent was directed to approach the learned Magistrate for execution of the order.

State of Kerala Vs Arakka Hamza — Criminal Trial and Appeal | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT

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THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930

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Crl.MC.No. 826 of 2006()

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-----------------------AGAINST THE ORDER DATED 23/12/2004 IN CMP 2208/04 IN CC.33/2000 of JUDL.MAGISTRATE OF FIRST CLASS, MANANTHAVADY

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PETITIONER: COMPLAINANT

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STATE REPRESENTED BY THE FOREST

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RANGE OFFICER, MANANTHAVADY, WAYANAD DISTRICT.

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BY SPECIAL GOVERNMENT PLEADER (FOREST) SRI.M.P.PRAKASH

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RESPONDENTS: ACCUSED NO.2

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ARAKKA HAMZA, S/O.IBRAHIM, KATTAYAD P.O., MANANTHAVADY.

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BY ADV. SRI.M.C.JOHN FOR R1

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/09/2008, ALONG WITH CRMC NO. 836 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.BASANT, J.

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Crl.M.C.No.826 & 836 of 2006

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Dated this the 18^th day of September 2008

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O R D E R

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I am proceeding to dispose of both Crl.M.C.Nos.826 and 836 of 2006 in succession by this order.

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Crl.M.C.No.826 of 2006

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The petitioner has come to this court with this application under Section 482 Cr.P.C to assail Annexure A2 order passed by the learned Magistrate under Section 452 Cr.P.C.

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A brief reference to skeletal facts may be useful. Two accused persons (accused 1 and 2) faced indictment for offences punishable under Section 27(1)(d) of the Kerala Forest Act and Rule 3(iii) and Rule 23 of the Kerala Forest Produce Transit Rules read with Section 69 of the Kerala Forest Act. The crux of the allegations in that prosecution was that 10200 Kgs of Kulirmavu barks in 153 bags were found available in the premises of the first accused. In that prosecution, a defence was taken by the accused that no offence has been committed and the article seized were covered by permits issued in favour of the respondent herein who was examined as DW1 in that case. The judgment of acquittal was passed on 31/1/2004. The seized articles were allegedly kept in the possession of forest officials.

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Crl.M.C.Nos.826 & 836/06 2

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After the disposal of the case, as no direction under Section 452 Cr.P.C was issued, the respondent herein, that is DW1 examined in the trial, went before the learned Magistrate and prayed that the article seized may be released to him. By the impugned order produced as Annexure A2 dated 17/2/2005 in C.M.P.No.2208/2004, the learned Magistrate allowed the said application and directed that the seized article be released to the petitioner.

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That order has not been complied with yet. There is dispute between the parties about the cause for non-compliance. Be that as it may, the petitioner has now come to this court with the prayer that Annexure A2 order may be set aside invoking the jurisdiction of this court under Section 482 Cr.P.C.

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The petitioner raises various grounds to challenge the order. It is contended that seizure was not from the possession of the respondent herein. It is further contended that no reasonable opportunity was given to the petitioner to defend the claim before Annexure A2 order was passed. It, however, is significant to note that the order under Section 452 Cr.P.C to challenge which an avenue is provided under Section 454 Cr.P.C was not challenged and remains without challenge. An

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Crl.M.C.Nos.826 & 836/06 3

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appropriate appeal under Section 454 Cr.P.C has not been preferred by the State at all.

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The learned counsel for the respondent submits that the State which did not prefer an appeal under Section 454 Cr.P.C should not be permitted to assail the impugned order in proceedings under Section 482 Cr.P.C. That course is not available. Powers under Section 482 Cr.P.C wide, sweeping and awesome may not be invoked to by-pass specific statutory provisions which oblige an aggrieved person to prefer an appeal.

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I find merit in the objections raised. I am not persuaded to agree that this is fit case where the extraordinary inherent jurisdiction under Section 482 Cr.P.C can or ought to be invoked. The State having not chosen to challenge the order under Section 452 Cr.P.C cannot now be permitted to mount a challenge against that order, long after the period of limitation by preferring this application under Section 482 Cr.P.C. Powers under Section 482 Cr.P.C though wide, sweeping and awesome can also be invoked and exercised by this court in accordance with law, justly and fairly only. Such powers cannot be invoked to go to the rescue of a party who has squandered his right of appeal and has not chosen to prefer any such appeal.

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Crl.M.C.Nos.826 & 836/06

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I am, in these circumstances, of the opinion that the challenge mounted against Annexure A2 order in this petition under Section 482 Cr.P.C cannot be accepted or entertained. The challenge fails. This Crl.M.C is accordingly dismissed.

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There is an existing further dispute between the parties. The petitioner herein has not so far released the articles to the respondent in spite of Annexure A2 order. Obviously, the respondent would be taking steps to execute the order or to proceed in contempt. It is now submitted that the huge quantity of articles - 10,200 Kgs of Kulirmavu barks have now vanished and is not available. The petitioner advances an explanation that it had got destroyed and therefore it is not possible now to comply with the order, whereas the respondent raises a contention that it is not a case of the article being innocently unavailable; but it has been misappropriated. In this Crl.M.C it is not necessary for me to embark on a detailed discussion on that aspect. The respondent can move the learned Magistrate to enforce Annexure A2 order. Appropriate enquiry must be conducted by the learned Magistrate after giving opportunity to the petitioner herein and appropriate orders will have to be passed by the learned Magistrate. I stop short there as I think it

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Crl.M.C.Nos.826 & 836/06

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unnecessary for me to express any opinion on that controversy.

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Crl.M.C.No.836/2008

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The facts in this case are exactly identical to the facts in Crl.M.C.No.826/2006. The only difference being the quantity and nature of the article seized. 2000 Kgs of Karappa barks and 2,100 Kgs of Kulirmavu barks are involved in this case. Annexure A2 is the identical order passed in this proceedings in C.M.P.No.2207/04 in C.C.No.599/1999. Here also Annexure A2 order has not been challenged under Section 454 Cr.P.C. Here also it is contended that it is not possible to comply with the order as the entire quantity is not available as it is damaged and destroyed.

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For the same reason that have been given earlier in Crl.M.C.No.826/06, I am satisfied that this petition also deserves to be dismissed with identical observations.

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In the result, Crl.M.C.No.836/2006 is also dismissed.

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(R.BASANT, JUDGE)

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jsr

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Crl.M.C.Nos.826 & 836/06 6

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Crl.M.C.Nos.826 & 836/06 7

R.BASANT, J.

CRL.M.C.No. of 2008

ORDER

09/07/2008

State of Kerala v. Arakka Hamza

Case brief

What is this about?

What did the court decide?

State of Kerala v. Arakka Hamza

Case brief

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What did the court decide?

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