Allowed

Krishnan Kutty Nair v. the State of Kerala

Kerala HC2 Aug 2018Crl.MC/4020/2018

Case brief

AI extract

What is this about?

The High Court set aside the Session Court order dismissing a revision filed in vain. Recognizing the right remedy was an appeal under Section 454 Cr.P.C., the Court condoned delay bona fide and permitted an appeal while suspending enforcement of the confiscation order.

What did the court decide?

Impugned order of Court of Session set aside; petitioners permitted to file appeal with condonation of delay; enforcement of confiscation order suspended for six weeks.

Krishnan Kutty Nair Vs the State of Kerala — Civil Procedure and Limitation | Kerala HC (2018)

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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 P.UBAID

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THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940 Crl.MC.No. 4020 of 2018

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IN CC 655/2017 of C.J.M., KALEPETTA DATED 13-11-2017 IN CRRP 3/2018 of D.C. & SESIONS & MACT,KALPETTA DATED 13-04-2018

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CRIME NO. 8/2017 OF KALPETTA FOREST RANGE OFFICE , WAYANAD

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PETITIONER(S)/REVISION PETITIONERS/ACCUSED 1 & 2:

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1 KRISHNAN KUTTY NAIR AGED 69 YEARS, S/O KARUNAKARAN NAIR, MANDHAGARI HOUSE, THEKKUMTHARA POST, VYTHIRI TALUK, WAYANAD DISTRICT.

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2 ABDUL NAZAR AGED 58 YEARS, S/O KUNHI POKAR HAJI, NEELIKANDI HOUSE, MUTTIL POST, VYTHIRI TALUK, WAYANAD DISTRICT.

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BY ADVS.SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SRI.K.ARJUN VENUGOPAL SMT.MARY RESHMA GEORGE SMT.V.A.HARITHA SRI.R.NANDAGOPAL SRI.SIDHARTH B PRASAD

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RESPONDENT(S):

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THE STATE OF KERALA REPRESENTED BY THE FOREST RANGE OFFICER, KALPETTA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4020 of 2018 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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ANNEXURE A THE CERTIFIED COPY OF THE JUDGMENT OF CHIEF JUDICIAL MAGISTRATE, KALPETTA IN CC NO.655/2017 DATED 13.11.17. ANNEXURE B THE CERTIFIED COPY OF THE ORDER PASSED BY THE SESSIONS JUDGE KALPETTA IN CRIMINAL REVISION PETITION NO.3/2018 DATED 13.04.2018.

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RESPONDENT'S EXHIBITS: NIL

//True copy//

P.A. to Judge

P.UBAID, J.

- - - - Crl.M.C. No. 4020 of 2018

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- - - - Dated this the 02^nd day of August, 2018

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O R D E R

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The petitioners herein are the two accused in C.C. No. 655 of 2017 of the Chief Judicial Magistrate Court, kalpetta. They have brought this application under Section 482 Cr.P.C. against the order of the Court of Session, Kalpetta, dismissing a revision brought by them as Crl.R.P. No. 03 of 2018, challenging the order of confiscation passed by the trial court under Section 452 Cr.P.C. in C.C. No. 655 of 2017. They were convicted by the trial court under the provisions of the Kerala Promotion of Trees Growth in Non Forest Areas Act, 2005. As the special Act does not contain any special provision regarding disposal of property, the trial court applied general provisions under Section 452 Cr.P.C., and passed orders of confiscation. The remedy available to the aggrieved person is to file an appeal against the said order under Section 454 Cr.P.C.. Instead of filing an appeal, the accused wrongly filed a revision before the Court of

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Crl.M.C. No. 4020 of 2018

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Session, and without noticing the bar under Section 401(4) Cr.P.C., the Court of Session proceeded with the revision, and disposed of the revision on merits. Accordingly, the revision was dismissed on 13.04.2018.

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When this proceeding came up for final hearing, this Court noticed that the right remedy available to

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the petitioners is to file an appeal under Section 454 Cr.P.C.. When this was pointed out, the learned counsel submitted that appeal is now time barred. Of course, if appeal is the right remedy, the petitioners will have to approach the appellate court, and if the appeal is delayed, they will have to file an application to condone delay. They have been prosecuting the revision in the Court of Session, and now they have brought proceeding before this Court under Section 482 Cr.P.C. on the bona fide belief that they would get relief. In view of the bar under Section 401(4) Cr.P.C., the Court of Session should not have entertained the revision or decided the revision on merits. If it were filed before this

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Crl.M.C. No. 4020 of 2018

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Court, it could have been converted as an appeal as provided under Section 401(5) Cr.P.C.. Instead of closing the revision directing the parties to file appeal as provided under the law, the Court of Session wrongly proceeded with the revision, and decided it on merits. No doubt, it is without jurisdiction. The said order passed by the Court of Session without jurisdiction is liable to be set aside. Still, the petitioners can file appeal in the Court of Session, along with an application to condone delay. In the particular facts and circumstances where the petitioners have some reason for the delay, that they prosecuted the revision on the bona fide belief that they would get relief, the request for condonation of delay will be considered by the court appropriately. For redressal of the grievance of the petitioners whose right remedy still lies under Section 454 Cr.P.C., I feel it appropriate to set aside the orders of the Court of Session, and permit the petitioners to file appeal, if they so opt.

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In the result, this Crl.M.C. is disposed of as follows:

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Crl.M.C. No. 4020 of 2018

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(a) The impugned order of the Court of Session,

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Wayanad dated 13.04.2018 in Crl.R.P. No. 03 of 2018 will stand set aside.

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(b) The petitioners are given option to file appeal against the order of confiscation of the trial court dated 13.11.2017 in C.C. No. 655 of 2017 under Section 454 Cr.P.C. along with an application to condone delay.

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(c) In case such an appeal with necessary application to condone delay is filed in the Court of Session, the same shall be judiciously considered and decided by the appellate court.

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(d) With the object of giving a reasonable time to the petitioners to file appeal as provided under the law, enforcement of the order of the trial court passed under Section 452 Cr.P.C. will stand suspended for a short period of

six weeks.

Sd/- P.UBAID

JUDGE

ds 02.08.2018

Krishnan Kutty Nair v. the State of Kerala

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Krishnan Kutty Nair v. the State of Kerala

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