Dismissed

Kuttiraja v. State of Kerala

Kerala HC5 Nov 2012Crl.Rev.Pet/1164/2004

Case brief

AI extract

What is this about?

The Kerala High Court dismissed criminal revision petitions challenging convictions for forest offences. The court rejected contentions regarding the admissibility of a mahazar with accused signatures, the procedural requirement of a police complaint under CrPC Section 190 when forest officers seized timber, and the necessity of proving financial loss for conviction under the Kerala Forest Act.

What did the court decide?

Criminal Revision Petitions dismissed. Lower Courts' judgment and sentence confirmed (though sentence noted as lower than statutory minimum).

Kuttiraja Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

¶4

MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934

¶5

Crl.Rev.Pet.No. 1164 of 2004 ( )

¶6

CRA.82/2001 OF ADDL. SESSIONS COURT, THODUPUZHA CC.53/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, DEVICULAM

¶7

REVISION PETITIONERS/APPELLENT 3 & 4/ACCUSED 3 & 4 :

¶8

1. KUTTIRAJA, S/O. GANDHI,

¶9

PERADIPPALAM BHAGAM, WARD NO. VI

¶10

KANTHALLOOR PAHCHAYATH, KEEZHANTHOOR VILLAGE

¶11

DEVIKULAM TALUK.

¶12

2. THULASIMADAN, S/O. VELLACHAMY,

¶13

ANCHUVEEDU BHAGAM, WARD NO.VI

¶14

KANTHALLOOR PANCHAYATH, KEEZHANTHOOR VILLAGE

¶15

DEVIKULAM TALUK.

¶16

BY ADV. SRI.UNNIKRISHNAN V. ALAPATT

¶17

RESPONDENT/RESPONDENT/COMPLAINANT :

¶18

STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER MARAYOOR RANGE, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.

¶19

BY SPL. GOVT.PLEADER (FOREST) SRI. M.P. MADHAVANKUTTY

¶20

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-11-2012, ALONG WITH CRL. R.P. NO. 2556/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶21

¶22

S. SIRI JAGAN, J.

¶23

- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition Nos. 1164 & 2556 of 2004

¶24

- - - - - - - - - - - - - - - - - - - - - - - Dated this the 5^th day of November, 2012

¶25

O R D E R

¶26

In these two criminal revision petitions, the petitioners are the accused in Calendar Case No.53/1998 before the Judicial First Class Magistrate's Court, Devikulam. They were prosecuted for offences punishable under Sections 27 (1) (e) (iii) and 27 (1) (e) (iv) of the Kerala Forest Act. The prosecution case was that the accused trespassed into the Vannanthara No.2 reserve forest situated within Marayoor Range in Marayoor Forest Station and removed one dried sandalwood tree therefrom causing damages of Rs.9,000/- to the Government and thus they committed the offences charged against them. The prosecution examined PWs 1 to 5 and marked Exts.P1, P2, P3 & P1 (a) as also MOs 1 & 2. The defence did not adduce any evidence. After considering the evidence adduced by the prosecution, the Magistrate convicted the petitioners and sentenced them to undergo simple imprisonment for six months each

¶27

Crl. Rev. Petition Nos. 1164 & 2556 of 2004

¶28

-2-

¶29

and to pay a fine of Rs.1,500/- each with a default sentence of simple imprisonment for three months each. The petitioners filed Crl. Appeal No.82/2001, which was dismissed by the Additional Sessions Judge, Thodupuzha, confirming the conviction and the sentence. The petitioners have filed these criminal revision petitions challenging the judgments of the courts below.

¶30

The petitioners raise four contentions. The first is that the lower courts convicted the petitioners based on the signatures of the petitioners in Ext.P1 mahazar, obtained while they were under custody, which is against Sections 25 & 26 of the Indian Evidence Act. As such, Ext.P1 could not have been considered in evidence and the petitioners convicted on the basis of the same. They would submit that no arrest memo has been produced for arrest of the petitioners. According to them, there is no evidence to show that the petitioners were arrested from a reserve forest. They would submit that, apart from Ext.P3 notification, no other evidence has been produced to prove that the place of occurrence was a reserve forest. Without

¶31

Crl. Rev. Petition Nos. 1164 & 2556 of 2004

¶32

-3-

¶33

evidence of the said fact, no conviction could have been entered against the petitioners. Thirdly, they would contend that under Section 190 of the Code of Criminal Procedure, cognisance could have been taken only on the basis of a complaint from a police officer and in this case there is no complaint, on which the Magistrate could have taken cognisance. The last contention is that even going by the charge against the petitioners, the tree in question was a fallen tree and therefore no loss has been caused to the Government warranting prosecution of the petitioners.

¶34

In answer to the said contentions, the learned Public Prosecutor would contend that none of the grounds raised by the petitioners are sustainable in law. He submits that just because in Ext.P1 mahazar the signatures of the petitioners were obtained, that does not in any way affect the validity of Ext.P1 as a mahazar. Assuming that in view of Sections 25 & 26 taking of the signatures of the petitioners in the mahazar is wrong under law insofar as Ext.P1 has been prepared by the concerned forest officers and they have proved the same by giving evidence, the

¶35

Crl. Rev. Petition Nos. 1164 & 2556 of 2004

¶36

-4-

¶37

sustainability of Ext.P1 as an evidence cannot be challenged. According to the learned Public Prosecutor, along with Ext.P3 notification declaring the area as a reserve forest, the Range Officers concerned have given categoric evidence to prove that the petitioners were actually arrested from inside a reserve forest. Therefore, there is sufficient evidence to prove that the petitioners were arrested from a reserve forest. As such, there is no merit in the contention that there is no evidence to prove that the petitioners were arrested from a reserve forest. Regarding the third contention, the learned Public Prosecutor would contend that insofar as the prosecution is under Section 52 of the Kerala Forest Act, the absence of a complaint from a police officer as provided under Section 190 is of no consequence insofar as Section 52 provides for a forest officer to seize timber or other forest produce used in committing an offence under the Forest Act and to produce the same before the Magistrate having jurisdiction, which has been done in this case. Once an occurrence report is filed, the procedure prescribed for taking

¶38

Crl. Rev. Petition Nos. 1164 & 2556 of 2004 -5-

¶39

cognisance is complete and therefore the third contention is also without any merit. As far as the fourth contention is concerned, he points out that under Section 27 (1) (e) (iii), it is not necessary that the Government should have suffered any loss for sustaining a prosecution, if any person removes any tree including those fallen or felled from a forest, he is liable for prosecution under Section 27 (1) (e) (iii) and since they have been arrested from a reserve forest, they have trespassed into a reserve forest and therefore the offence under Section 27 (1) (e) (iv) is also complete.

¶40

I have considered the rival contentions in detail. 5. I do not find any merit in any of the contentions

¶41

raised by the petitioners. Perhaps Ext.P1 cannot be relied upon as a confession by the petitioners regarding the offence. But Ext.P1 has been prepared as a mahazar for seizure of the forest produce concerned. Simply because the forest officers in their enthusiasm have obtained the signatures of the petitioners in the mahazar, the mahazar does not lose its evidentiary value as a mahazar. It is settled law that the defect in investigation made by the

¶42

Crl. Rev. Petition Nos. 1164 & 2556 of 2004 -6-

¶43

investigating officer does not enure to the benefit of the accused, as laid down by the Hon'ble Supreme Court in Dayal Singh & Ors. v. State of Uttaranchal [2012 (2) KLD 443 (SC)] . Of course the signatures in Ext.P1 mahazar cannot be taken as proof of the petitioners having accepted the contents of the mahazar. But the same can be accepted as a mahazar for other purposes. As such, simply because the signatures of the petitioners were obtained in the mahazar, the mahazar itself cannot be eschewed from evidence for the purpose of deciding the guilt of the petitioners. The only thing is that the fact that the petitioners have put their signatures in the mahazar will not be conclusive proof of their having admitted the contents of the mahazar.

¶44

Ext.P3 notification has been marked by the prosecution to prove that the area in question is a reserve forest. The three forest officers, who have detected the offence and arrested the petitioners have been examined as PW1, PW3 & PW4. They have given categoric evidence that while they were on beat duty in the particular reserve forest

¶45

Crl. Rev. Petition Nos. 1164 & 2556 of 2004 -7-

¶46

they heard noises of somebody cutting tree, they followed the noise and found the petitioners making a sandal wood tree in question into logs. They have specifically stated that the particular scene of occurrence is on the southern side from the northern boundary of the particular forest. I am of opinion that their evidence coupled with Exts.P1 & P3 is sufficient proof of the fact that the place from where the petitioners were apprehended committing the offence and arrested is a reserve forest. As far as the third contention is concerned, in as much as the prosecution is under Section 52 of the Kerala Forest Act, if the procedure prescribed under Section 52 is complied with, the same is sufficient for a valid taking of cognisance. Section 52 reads thus:

¶47

“52. Seizure of property liable to confiscation.- (1) When there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.

¶48

Explanation.- The terms 'boats' and 'vehicles' in this section, [Section 53, Section 55, Section 61A and Section 61B] shall include all the articles and machinery kept in it whether fixed to the same or not.

¶49

(2) Every officer seizing any property under sub-section (1) shall place on such property or the receptacle, if any, in which, it is contained a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

¶50

Crl. Rev. Petition Nos. 1164 & 2556 of 2004

¶51

-8-

¶52

Provided that, when the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the Forest Officer makes, as soon as may be, a report of the circumstances to his official superior.”

¶53

In this case, the concerned forest officer has detected the offence, arrested the petitioners and produced them before the Magistrate along with Ext.P1 occurrence report. They have complied with the other procedural formalities prescribed by the Government for prosecution of forest offences as contained in rules approved by the Government by G.O. No.26885/F-2/62 Agri. Forest dated 27.02.1963. Therefore, I am of opinion that the petitioners cannot challenge the prosecution for want of a complaint from a police officer as provided under Section 190 of the Criminal Procedure Code. Subsequent to Ext.P1 a form No.2 charge sheet has been drawn up and produced and the Magistrate has remanded the petitioners to the sub jail on production before him. As such, I am not satisfied that there is any procedural irregularity in the matter of prosecution of the petitioners. Apart from the same, in view of the decision of the Hon'ble Supreme Court quoted supra, any defect in the

¶54

Crl. Rev. Petition Nos. 1164 & 2556 of 2004

¶55

-9-

¶56

investigation cannot enure to the benefit of the accused.

¶57

Regarding the fourth contention, under Section 27

¶58

(1) (e) (iii), it is not necessary that for a successful prosecution, the prosecution should prove loss to the Government. Section 27 (1) (e) (iii) reads thus:

¶59

“27. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests.- (1) Any person who-

¶60

(a) x x

¶61

(b) x x

¶62

¶63

(d) x x

¶64

(e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest-

¶65

(i) x x

¶66

(ii) x x

¶67

(iii) cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or remove any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;”

¶68

It is for anybody to see that loss to the Government is not an

¶69

ingredient of the offence under that Section. As such, I do

¶70

not find any merit in the last contention also. Therefore, I do

¶71

not find any merit in any of the grounds raised by the petitioners to assail the judgments of the courts below. As

¶72

Crl. Rev. Petition Nos. 1164 & 2556 of 2004 -10-

¶73

far as the sentence is concerned, under Section 27, the minimum punishment prescribed is one year imprisonment. In this case, the sentence imposed is six months imprisonment only, which obviously is a mistake committed by the lower courts, but the prosecution has not filed any revision against the judgments of the courts below. In the above circumstances, I leave it at that. Accordingly, the criminal revisions petitions are dismissed.

¶74

Sd/-

¶75

S. SIRI JAGAN JUDGE //True copy//

¶76

P.A. TO JUDGE

¶77

shg/

Kuttiraja v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kuttiraja v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

G.Sukumaran Nair, Nair Service Society Vs M.Sivasankar

C.P Susan Prameela Vs Dr.K.M.Abraham

S. Raveendran Vs Sri. M. Sivasankar, IAS

K. Radhamany Amma Vs Pinku Biswal

Prakashan Vs State

Maya Vijayan Vs State of Kerala