Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943 Crl.MC.No.857 OF 2021(F) O.R. NO.1/2020 OF PERUMUZHY FOREST STATION, ERNAKULAM PETITIONER/ACCUSED: DON JOY AGED 26 YEARS S/O JOY, KALLARACKAL HOUSE, MLAWANA KARA, POOYAMKUTTY P. O., KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.A.C.DEVASIA SRI.C.K.JACOB SMT.ANCY MATHEW SRI.MATHEW DEVASSI RESPONDENTS/COMPLAINANTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 THE DEPUTY FOREST RANGE OFFICER PERUMUZHY FOREST STATION, EDAMALAYAR RANGE, MALAKKAPARA P. O., ERNAKULAM DISTRICT, PIN - 680 724. BY SRI. M.S. BREEZ, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-032021, THE COURT ON 22-03-2021 PASSED THE FOLLOWING: Crl. M.C. No.857 OF 2021 2
ORDER
This is a petition filed under Section 482 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., praying to quash Annexure I mahazar dated 12.10.2020 and Annexure II Forest Occurrence Report dated 14.10.2020 of Perumuzhy Forest Station. Annexure II report was prepared on the basis of Annexure I mahazar, alleging offence punishable under Section 27(1)(e)(iv) of the Kerala Forest Act. The petitioner is the accused in the said occurrence report.
2. According to the petitioner, on 12.10.2020, he had
gone to Vettukadu near Variyam for dropping settlers at Vettukadu, who had called his vehicle at 2.00 P.M. He also took two settlers from Kunchipara by name Raju and Cheeta to accompany him. While they were returning from Variyam to Mlawana, at Palathodu Ooduthooky, three forest officials intercepted him and the forest official by name K.K. Siyad threatened him and questioned that under what authority he had taken the vehicle through forest area. The said Siyad beat him with a log on the hand, abused him with filthy words and
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confined him unlawfully for about ten minutes. The petitioner and the tribes escaped from the forest officials. Thereafter, he was admitted in Mar Baselious Medical Mission Hospital on the same day and was discharged on 13.10.2020. On the incident, Crime No.638/2020 was registered on 13.10.2020 in Kuttampuzha police station against the said Siyad alleging offence punishable under Sections 341, 294(b) and 324 of the Indian Penal Code. But under the influence of the forest officials, the police did not investigate the case properly and referred as false. The said Siyad was not in good terms with him, since he had refused to take a trip at his instance to Perumuzhy. Annexure I and II were prepared suppressing material facts. As a counterblast he has been served with Annexure VII notice under Section 41A of the Cr.P.C asking him to appear before the Deputy Forest Range Officer, in connection with the investigation in O.R. No.1/2020. He is prepared to co-operate with the investigation, but apprehends that since he had already filed a complaint against the said Siyad, there is every chance that the forest officials may manhandle and arrest him without any reason and may obtain false confession statement from him.
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Annexure II is not maintainable as the ingredients of the offence are not made out. It is not a forest area and the allegation of trespass will not sustain against him. He has not committed any mischief, it is not a reserve forest area, but it is a public road owned by the panchayat, which had come into existence in the year 1970, which was constructed by general public, panchayat and Tribal department and the tribes. The forest department has no right over the said road. User agency of the road is Kuttampuzha panchayat, the tribal department. For passing through the said road, officials of the forest department have no authority to initiate action against him. He had plied the vehicle through the road on the direction of the settlers for access to their properties. He is also a resident of Mlawana. On all these considerations, he has prayed for quashing Annexures I and II and all subsequent proceedings.
3. The Deputy Range Forest Officer, Perumuzhy Forest
Station filed a statement denying the allegations. According to him, on 12.10.2020 at 5.30 p.m., while the officials of the Perumuzhy Forest Station were on patrol duty at Ooduthooky part of Malyattoor - Idiyara Reserve Forest, the petitioner was Crl. M.C. No.857 OF 2021 5
found driving a private jeep KL-07-AA-5115; when the vehicle was intercepted and inspected, there were two choppers under the rear seat of the jeep, besides three litres of petrol and a bottle of oil. The petitioner could not give satisfactory explanation about his presence at the area. He also questioned the forest officials, called abusive words against them, pulled and forcibly taken the vehicle and left the scene. Accordingly, on the basis of the mahazar, a crime as O.S. No. 01/2020 of Perumuzhy Forest Station was registered for commission of offence under Section 27(1)(e)(iv) of the Kerala Forest Act, for entering the vehicle inside the reserve forest which is part of Malayatoor - Idiyara notified reserve forest protected by the Kerala Forest and Wildlife department. It is a coup road. It is used only by forest officials and tribals in Variyam colony. The petitioner had entered the area without permission from Idamalayar Forest Range. The road in the area is maintained and protected by the Kerala Forest and Wildlife department and it is part of the forest. After the incident, as a counterblast, he got himself admitted in hospital and gave false complaint against the forest officials and a case was caused to be registered against Mr.Siyad K.K. The
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police on investigation found the complaint false. The said Siyad does not know the petitioner, he had no occasion to call the petitioner for a trip from Mlawana to Perumuzhy, as alleged. Annexure VII notice was issued as part of investigation. But the petitioner had not accepted the notice. Thereafter, another notice was issued on 20.01.2021 giving him another opportunity to appear before the forest officials. According to the Deputy Range Officer, the place of occurrence is a coup road, leading to Variyam settlement colony and the prayer for quashing the proceedings is only to be dismissed.
4. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor in detail.
5. The learned counsel reiterated the contentions in the
petition. According to him, it is a road leading to the tribal settlement colony maintained by Kuttampuzha Grama panchayat, the Forest department has no manner of right over it. He had gone there as four settlers had hired his vehicle and the alleged incident had happened on his return to Mlawana, his place of residence. The forest officials had intercepted and beaten him up, then he had to be hospitalised and that was how a
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crime was registered against the forest officials; knowing about it an occurrence report was registered on 14.10.2020, which clearly is an afterthought. It is true that the police has referred the crime but he has already filed a protest complaint. The learned counsel reiterated that passing through the road will not attract offence under Section 27(1)(e)(iv) of the Forest Act. There is no allegation that he had committed any mischief. It is evident from the statement of the second respondent that the forest officials have been deployed to restrict the entry into the area, he could pass the ferry and move through the road only with the permission of such officials. It is hard to say that for persons who are regularly moving through the road, one should get pass from Edamalayar Forest Range, which is about 40 kms far, which cannot be accepted. Now he has been summoned by the forest officials to wreak vengeance on him, Annexure I does not bear presence of independent witnesses. Therefore, according to the counsel, ultimately a successful prosecution may not be possible with the interested version of the forest officials. The counsel also relied on the decision reported in Luca Beltrami and Others v. State of Kerala [2020(4) KHC 603].
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6. On the other hand, the learned Public Prosecutor
contended that all the arguments of the petitioner are denied in the detailed counter statement; after committing a forest offence, the petitioner got registered a crime against the forest official, which stands referred. Even though it is evident that the vehicle driven by him was the jeep bearing No.KL-07-AA-5115 a private vehicle, now he wants to make the court believe that he was driving another vehicle, KL- 35-B-8910. The learned Public Prosecutor strongly opposed the prayer for quashing the proceedings.
7. After hearing the counsel on both sides and
considering the factual matrix, I am not persuaded to uphold the arguments of the learned counsel for the petitioner. The contentions of the parties are really in-consistent and cutting each other. While the petitioner asserts that the incident had happened on a public road, cut open by the general public and the Kuttampuzha grama panchayat and is being maintained by the panchayat, the contention has been strongly denied by the second respondent. According to him, it is not a panchayat road nor a public road, but a coup road, where entry is restricted, that
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only forest officials and tribals residing in Variyam colony are entitled to use the road. No doubt, if it is a coup road as contended by the second respondent, necessarily entry in the area would attract the offence alleged against the petitioner. All and sundry have no entry in an area notified as reserve forest and mere entry into the area ipso facto will attract the offence under Section 27(1)(e)(iv) of the Forest Act. Secondly, the argument that he had gone there with the permission of two forest officials at the ferry side, for the purpose of dropping settlers etc., cannot be discerned from the documents. On his own showing, the crime registered against the forest official stands referred as false. But that will not lead to an automatic conclusion that there is no basis in the allegation against the petitioner. At this stage, this Court is not in a position to form an opinion about the correctness or otherwise of the rival contentions raised by both sides. The truth can be brought out only after conducting investigation.
8. Exercise of power under Section 482 of the Cr.P.C. in a case of this nature is the exception and not the rule. Section 482 envisages three circumstances under which the inherent Crl. M.C. No.857 OF 2021 10
jurisdiction can be exercised namely, to give effect to an order
under the Code, to prevent abuse of the process of Code and to otherwise secure the ends of justice. Inherent jurisdiction under the Section though while has to be exercised carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.
9. It is the settled proposition of law that the High Court
ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding unless the allegations contained therein, even if taken to be correct on its face value, disclose no cognizable offence. For the said purpose, except in exceptional circumstances, the court would not look into any document relied upon by the defence. Such a power is exercised very sparingly. If the documents produced by the prosecution disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused. It is also trite that there is no hard and fast rule in the matter and each case has to be considered on its own merits. It is also required to be pointed out that the facts of the case relied on by the learned counsel for the petitioner in Luca Beltrami, quoted supra, are
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10. There is dispute as to where exactly the petitioner
was found by the forest officials. If it is a coup road, as evident from Annexure I, necessarily the offence alleged will attract. There is also allegation that the petitioner had carried in the vehicle objectionable weapons. Similarly, it is a matter to be enquired as to whether the petitioner had gone there with the permission of officials of the Forest department. These and other disputed questions cannot be decided at this stage and will have to be left to be investigated by the appropriate authority. In this backdrop, I decline to invoke the inherent jurisdiction. That means, it is not in the interest of justice to put an end to the investigation and quash the proceedings. The petition lacks merits and is liable to be dismissed. Dismissed. Sd/- K.HARIPAL JUDGE
DCS/19.03.2021 Crl. M.C. No.857 OF 2021 12 APPENDIX PETITIONER'S/S ANNEXURES: ANNEXURE I TRUE COPY OF THE MAHAZER DATED 12.1.2020. ANNEXURE II COPY OF THE O.R.NO.1/2020 DATED 14.10.2020 OF PERUMUZHY FOREST STATION. ANNEXURE III TRUE COPY OF THE R. C. BOOK DATED 17.02.2011 IN THE NAME OF THE PETITIONER. ANNEXURE IV TRUE COPY OF THE DISCHARGE SUMMARY CERTIFICATE ISSUED BY THE HOSPITAL DATED 13.10.2020. ANNEXURE V TRUE COPY OF THE FIR NO.638/2020 DATED 13.01.2020 OF KUTTAMPUZHA POLICE STATION. ANNEXURE VI TRUE COPY OF THE REFER NOTICE DATED 1.1.2021. ANNEXURE VII TRUE COPY OF THE NOTICE UNDER SECTION 41A CR.P.C.ISSUED BY THE 2ND RESPONDENT DATED 02.02.2021. RESPONDENT'S/S ANNEXURES: ANNEXURE R2(a) TRUE COPY OF THE VEHICLE PARTICULARS BEARING REGISTRATION NO. KL 07 AA 5115 ANNEXURE R2(b) TRUE COPY OF THE NOTICE UNDER SECTION 41A CR.P.C. DATED 20.01.2021