James Joseph Vs. Deputy Range Officer - Court Judgment

Excerpt:
- orderm. sasidharan nambiar, j.1. this petition is filed under section 482 of code of criminal procedure by the accused in o.r. no. 17/1999 of palakkayam forest station, mannarkkad, pending before judicial first class magistrate's court, mannarkkad, to quash annexure-7 occurrence report and all further proceedings taken thereunder. annexure-7 occurrence report was filed before judicial first class magistrate's court, mannarkkad by deputy range officer, along with annexure-b copy of mahazar, where under, twenty six trees cut by the petitioner worth rs. 80.000/- and timber worth rs. 2,500/- were seized on 22.11.1999 alleging that the trees were cut in violation of section 5 of kerala preservation of trees act, 1986 (hereinafter referred to as 'the act'). the trees were subsequently released to the petitioner by the magistrate on a petition filed under section 451 of code of criminal procedure, under annexure-l0 order dated 2.3.2006. petitioner would contend that section 5 of the act does not apply to the facts of the case at all and in any case, as provided under section 13 of the act, only the authorised officer is entitled to submit a report of seizure before the magistrate and the deputy range officer is not an authorised officer, as notified under section 13 and therefore, the entire proceedings is vitiated. it is also contended that even though the seizure was in 1999, a final report is not so far submitted and therefore, continuation of the proceedings as against the petitioner is only an abuse of process of the court.2. learned counsel appearing for the petitioner and learned public prosecutor were heard.3. as learned public prosecutor submitted that a final report was prepared in november itself, learned magistrate was directed to report whether a final report is submitted in the case and if submitted, whether cognizance is taken and if cognizance is taken, the number of the case pending. learned magistrate, as per letter dated 6.1.2010, reported that final report is not yet submitted before the court. along with the letter, a report submitted by the deputy range officer, palakkayam forest station, who prepared annexure-7 occurrence report, is also attached. the said report of the deputy ranger, dated 6.1.2010, reveals that investigation in the case was completed and a final report was submitted for sanction before the divisional forest officer, mannarkkad on 17.5.2002 and sanction is not so far granted.4. learned counsel appearing for the petitioner submitted that the maximum punishment provided under section 9 of the act, for violation of an offence under section 5, is imprisonment which may extend to two years or fine which may extend to rupees two thousand, as there is no case that petitioner was involved in an offence of this nature earlier and even if it was a subsequent offence, the maximum imprisonment is three years and as provided under section 468 of code of criminal procedure, cognizance cannot be taken after three years from the date of commission of the offence and hence, in any event, continuation of the proceedings is only an abuse of process of the court and to secure justice, the proceedings is to be quashed.5. section 5 of the act provides prohibition of cutting of trees from notified areas. though under sub-section (1) cutting of trees without the permission would attract the punishment provided under section 9, penalty is leviable only if the property, from which the tress were cut, is either a private forest or a cardamom hills reserve or any other area cultivated with cardamom.6. sub-section (1) of section 5 reads:(i) notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any court, tribunal or other authority, or in any agreement or other arrangement, the government may, with a view to preserving the tree growth in private forests or in the cardamom hills reserve or in any other areas cultivated with cardamom, by notification in the gazette, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burned or otherwise destroyed except on the ground that:(a) the tree constitutes a danger to life or property; or(b) the tree is dead, diseased or wind fallen.though the learned counsel, relying on annexures-a1 to a3 decisions of this court in m.f.a. no. 183/1979 and o.p. no. 8636/1994, argued that this property cannot be a private forest, the question considered therein was not whether the property is a private forest or not, but, whether the private forest is vested in the government. hence, based on those decisions, it cannot be said that the property is not a private forest. even if the property, from where the trees were cut, is not a cardamom hills reserve or an area cultivated with cardamom, if it is a private forest and trees were cut without the permission, sub-section (1) of section 5 will apply. therefore, on that ground, petitioner is not entitled to get the proceedings quashed.7. section 13 of the act provides for seizure of timber and other articles involved in the commission of an offence, in violation of the provisions of section 5 of the act.8. section 13 reads:(1) where any officer of the forest department not below the rank of forester or any police officer not below the rank of sub inspector has reason to believe that any tree has been cut in contravention of section 4 or sub-section (2) of section 5 or a direction contained in a notification under sub-section (1) of section 5, he may seize the timber of such tree together with all tools, ropes, chains and other articles used in the commission of such offence and all boats, vehicles and animals used for carrying such timber.(2) every officer seizing any timber under sub-section (1) shall place on such timber, 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 authorised officer.(3) on receipt of a report under sub-section (2), the authorised officer shall,-(a) if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of section 4 or sub-section (2) of section 5 or a direction contained in a notification under sub-section (1) of section 5, make a report of such seizure to the judicial magistrate of the first class having jurisdiction over the area in which such seizure has been made;(b) if he is not so satisfied, make a report of such seizure to such authority as may be prescribed.(4) the authority to which a report is made under clause (b) of sub-section (3) shall:(a) if it is satisfied that the timber mentioned in such report is of any tree cut in contravention of section 4, or sub-section (2) of section 5 or a direction contained in a notification under sub-section (1) of section 5, make a report of the seizure of such timber to the judicial magistrate of the first class having jurisdiction over the area in which such seizure has been made;(b) if it is not so satisfied, order that such timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it shall be returned to the person from whom they were seized.9. section 15 provides the procedure to be followed by the magistrate. section 15 reads:upon the receipt of a report under clause (a) of sub-section (3) or clause (a) of sub-section (4) of section 13, the magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the timber and any tool, rope, chain, or other article or any boat, vehicle, or animal seized along with it, according to law.10. section 19 of the act provides cognizance of offences. under this section, no court inferior to that of a judicial first class magistrate shall try any offence under the act,11. clause (b) of section 2 of the act defines the authorised officer as an officer appointed under sub-section (1) of section 3. sub-section (1) of section 3 provides that the government may, by notification in the gazette, appoint such officers not below the rank of a ranger as they think fit to be the authorised officers for the purpose of this act and may assign to them such local limits as the government think fit.12. s.r.o. no. 143/1989 is the notification issued by the government in exercise of the powers conferred under sub-section (1) of section 3 of the act. under the said notification, all range officers in charge of special ranges for vested forests in the malabar districts referred to in sub-section (2) of section 5 of states reorganisation act, 1956 and the assistant wild life wardens and assistant wild life preservation officers specified in the schedule are appointed as the authorised officers.13. therefore, the authorised officer under section 3(1) of the act is only the range officer or wild life wardens or assistant wild life preservation officers. though sub-section (1) of section 13 enables any officer of the forest department, not below the rank of a forester, if he has reason to believe that any tree has been cut in contravention of section 4 or sub-section (2) of section 5 or a direction contained in the notification under sub-section (1) of section 5, to seize the timber of such tree together will all tools, ropes, chains and other articles used in the commission of such offence and all boats, vehicles and animals used for carrying such timber, sub-section (2) mandates that every officer, seizing any timber under sub-section (1), shall place on such timber, a mark indicating that the same has been so seized and shall make a report of such seizure to the authorised officer. sub-section (3) provides that on receipt of the said report submitted by the officer seizing the timber, the authorised officer shall make a report of such seizure to judicial first class magistrate having jurisdiction over the area in which such seizure has been made, if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of section 4 or sub-section (1) or (2)of section 5. if he is not satisfied, he shall make a report of such seizure to such authority as may be prescribed. under sub-section (4), the authority to which a report under clause (b) of sub-section (3) is made, if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of section 4 or sub-section (1) or (2) of section 5, he shall make a report of the seizure of such timber to the magistrate having jurisdiction over the area. if he is not so satisfied, he shall order that such timber and any tool, rope, chain or other article or any boat, vehicle or animal, seized along with it, shall be returned to the person from whom they were seized.14. under section 15 of the act, on receipt of a report under clause (a) of sub-section (3) by the authorised officer or under clause (a) of sub-section (4) of section 13 by the authority, the magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it, according to law. therefore, the magistrate can take cognizance of the offences under the act only on a report submitted by the authorised officer, as provided under clause (a) of sub-section (3) of section 13 or by the prescribed authority under clause (a) of sub-section (4) of section 13. therefore, the reports, if cognizance is to be taken on it, are to be submitted not by the officer seizing the timber as provided under sub-section (1) of section 13. if he is not an authorised officer, it could be filed only by the authorised officer. annexure-7 report shows that the report was not submitted by the authorised officer, but by the deputy range officer, who is not an authorised officer. therefore, in law, based on annexure-7 report, learned magistrate cannot try the petitioner, as provided under section 15 of the act.15. section 468 of code of criminal procedure provides the bar to take cognizance after lapse of the period of limitation. under sub-section (1), except as otherwise provided elsewhere in the code, no court shall take cognizance of an offence of the category specified in sub-section (2), after expiry of the period of limitation. under clause (b) of sub-section (2), the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year and under clause (c), the period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years.16. as the maximum sentence provided under section 9 of the act is only imprisonment for two years, if it is the first offence and three years, if it is a subsequent offence, as provided under clause (c) of sub-section (2) of section 468 of code of criminal procedure, period of limitation to take cognizance is three years from the date of commission of the offence. no magistrate can take cognizance of the offence after the expiry of three years, except if it comes under section 473 of code of criminal procedure. under section 473, notwithstanding anything contained in section 468, a court may take cognizance of the offence, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary to do so in the interest of justice. therefore, even if there was delay in filing the final report, magistrate can take cognizance of the offence, in view of the provisions of section 473 of code of criminal procedure, provided, the delay is properly explained and the magistrate is satisfied that, in the interest of justice, cognizance is to be taken. but, facts of this case reveal that prosecution has been initiated, not by the authorised officer, as mandated under section 13 of the act. the report submitted by the magistrate, along with the report of the deputy range officer, establishes that even though a final report was submitted before the divisional forest officer, mannarkkad as early as on 17.5.2002, it is not sanctioned till 6.1.2010, as the authorised officer has decided to submit the final report. in the nature of the case, it is not in the interest of justice to condone the delay as provided under section 473 of code of criminal procedure. as the period of limitation expired in 2002 and even after expiry of more than seven years since then, it is not in the interest of justice to continue the prosecution. to secure justice, it is, therefore, necessary to quash the proceedings.petition is allowed. o.r. no. 17/1999 on the file of palakkayam forest station, mannarkkad is quashed.

Judgment:
ORDER

M. Sasidharan Nambiar, J.

1. This petition is filed under Section 482 of Code of Criminal Procedure by the accused in O.R. No. 17/1999 of Palakkayam Forest Station, Mannarkkad, pending before Judicial First Class Magistrate's Court, Mannarkkad, to quash Annexure-7 occurrence report and all further proceedings taken thereunder. Annexure-7 occurrence report was filed before Judicial First Class Magistrate's Court, Mannarkkad by Deputy Range Officer, along with Annexure-B copy of mahazar, where under, twenty six trees cut by the petitioner worth Rs. 80.000/- and timber worth Rs. 2,500/- were seized on 22.11.1999 alleging that the trees were cut in violation of Section 5 of Kerala Preservation of Trees Act, 1986 (hereinafter referred to as 'the Act'). The trees were subsequently released to the petitioner by the Magistrate on a petition filed under Section 451 of Code of Criminal Procedure, under Annexure-l0 order dated 2.3.2006. Petitioner would contend that Section 5 of the Act does not apply to the facts of the case at all and in any case, as provided under Section 13 of the Act, only the authorised officer is entitled to submit a report of seizure before the Magistrate and the Deputy Range Officer is not an authorised officer, as notified under Section 13 and therefore, the entire proceedings is vitiated. It is also contended that even though the seizure was in 1999, a final report is not so far submitted and therefore, continuation of the proceedings as against the petitioner is only an abuse of process of the court.

2. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard.

3. As learned Public Prosecutor submitted that a final report was prepared in November itself, learned Magistrate was directed to report whether a final report is submitted in the case and if submitted, whether cognizance is taken and if cognizance is taken, the number of the case pending. Learned Magistrate, as per letter dated 6.1.2010, reported that final report is not yet submitted before the court. Along with the letter, a report submitted by the Deputy Range Officer, Palakkayam Forest Station, who prepared Annexure-7 occurrence report, is also attached. The said report of the Deputy Ranger, dated 6.1.2010, reveals that investigation in the case was completed and a final report was submitted for sanction before the Divisional Forest Officer, Mannarkkad on 17.5.2002 and sanction is not so far granted.

4. Learned Counsel appearing for the petitioner submitted that the maximum punishment provided under Section 9 of the Act, for violation of an offence under Section 5, is imprisonment which may extend to two years or fine which may extend to Rupees Two thousand, as there is no case that petitioner was involved in an offence of this nature earlier and even if it was a subsequent offence, the maximum imprisonment is three years and as provided under Section 468 of Code of Criminal Procedure, cognizance cannot be taken after three years from the date of commission of the offence and hence, in any event, continuation of the proceedings is only an abuse of process of the court and to secure justice, the proceedings is to be quashed.

5. Section 5 of the Act provides prohibition of cutting of trees from notified areas. Though under Sub-section (1) cutting of trees without the permission would attract the punishment provided under Section 9, penalty is leviable only if the property, from which the tress were cut, is either a private forest or a Cardamom Hills Reserve or any other area cultivated with Cardamom.

6. Sub-section (1) of Section 5 reads:

(i) Notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, tribunal or other authority, or in any agreement or other arrangement, the Government may, with a view to preserving the tree growth in private forests or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, by notification in the Gazette, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burned or otherwise destroyed except on the ground that:

(a) the tree constitutes a danger to life or property; or

(b) the tree is dead, diseased or wind fallen.

Though the learned Counsel, relying on Annexures-A1 to A3 decisions of this Court in M.F.A. No. 183/1979 and O.P. No. 8636/1994, argued that this property cannot be a private forest, the question considered therein was not whether the property is a private forest or not, but, whether the private forest is vested in the Government. Hence, based on those decisions, it cannot be said that the property is not a private forest. Even if the property, from where the trees were cut, is not a Cardamom Hills Reserve or an area cultivated with Cardamom, if it is a private forest and trees were cut without the permission, Sub-section (1) of Section 5 will apply. Therefore, on that ground, petitioner is not entitled to get the proceedings quashed.

7. Section 13 of the Act provides for seizure of timber and other articles involved in the commission of an offence, in violation of the provisions of Section 5 of the Act.

8. Section 13 reads:

(1) Where any officer of the Forest Department not below the rank of Forester or any Police Officer not below the rank of Sub Inspector has reason to believe that any tree has been cut in contravention of Section 4 or Sub-section (2) of Section 5 or a direction contained in a notification under Sub-section (1) of Section 5, he may seize the timber of such tree together with all tools, ropes, chains and other articles used in the commission of such offence and all boats, vehicles and animals used for carrying such timber.

(2) Every officer seizing any timber under Sub-section (1) shall place on such timber, 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 authorised officer.

(3) On receipt of a report under Sub-section (2), the authorised officer shall,-

(a) if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of Section 4 or Sub-section (2) of Section 5 or a direction contained in a notification under Sub-section (1) of Section 5, make a report of such seizure to the Judicial Magistrate of the First Class having jurisdiction over the area in which such seizure has been made;

(b) if he is not so satisfied, make a report of such seizure to such authority as may be prescribed.

(4) The authority to which a report is made under Clause (b) of Sub-section (3) shall:

(a) if it is satisfied that the timber mentioned in such report is of any tree cut in contravention of Section 4, or Sub-section (2) of Section 5 or a direction contained in a notification under Sub-section (1) of Section 5, make a report of the seizure of such timber to the Judicial Magistrate of the First Class having jurisdiction over the area in which such seizure has been made;

(b) if it is not so satisfied, order that such timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it shall be returned to the person from whom they were seized.

9. Section 15 provides the procedure to be followed by the Magistrate. Section 15 reads:

Upon the receipt of a report under Clause (a) of Sub-section (3) or Clause (a) of Sub-section (4) of Section 13, the Magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the timber and any tool, rope, chain, or other article or any boat, vehicle, or animal seized along with it, according to law.

10. Section 19 of the Act provides cognizance of offences. Under this Section, no court inferior to that of a Judicial First Class Magistrate shall try any offence under the Act,

11. Clause (b) of Section 2 of the Act defines the authorised officer as an officer appointed under Sub-section (1) of Section 3. Sub-section (1) of Section 3 provides that the Government may, by notification in the Gazette, appoint such officers not below the rank of a Ranger as they think fit to be the authorised officers for the purpose of this Act and may assign to them such local limits as the Government think fit.

12. S.R.O. No. 143/1989 is the notification issued by the Government in exercise of the powers conferred under Sub-section (1) of Section 3 of the Act. Under the said notification, all Range Officers in charge of Special Ranges for Vested Forests in the Malabar Districts referred to in Sub-section (2) of Section 5 of States Reorganisation Act, 1956 and the Assistant Wild Life Wardens and Assistant Wild Life Preservation Officers specified in the Schedule are appointed as the authorised officers.

13. Therefore, the authorised officer under Section 3(1) of the Act is only the Range Officer or Wild Life Wardens or Assistant Wild Life Preservation Officers. Though Sub-section (1) of Section 13 enables any Officer of the Forest Department, not below the rank of a Forester, if he has reason to believe that any tree has been cut in contravention of Section 4 or Sub-section (2) of Section 5 or a direction contained in the notification under Sub-section (1) of Section 5, to seize the timber of such tree together will all tools, ropes, chains and other articles used in the commission of such offence and all boats, vehicles and animals used for carrying such timber, Sub-section (2) mandates that every Officer, seizing any timber under Sub-section (1), shall place on such timber, a mark indicating that the same has been so seized and shall make a report of such seizure to the authorised officer. Sub-section (3) provides that on receipt of the said report submitted by the officer seizing the timber, the authorised officer shall make a report of such seizure to Judicial First Class Magistrate having jurisdiction over the area in which such seizure has been made, if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of Section 4 or Sub-section (1) or (2)of Section 5. If he is not satisfied, he shall make a report of such seizure to such authority as may be prescribed. Under Sub-section (4), the authority to which a report under Clause (b) of Sub-section (3) is made, if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of Section 4 or Sub-section (1) or (2) of Section 5, he shall make a report of the seizure of such timber to the Magistrate having jurisdiction over the area. If he is not so satisfied, he shall order that such timber and any tool, rope, chain or other article or any boat, vehicle or animal, seized along with it, shall be returned to the person from whom they were seized.

14. Under Section 15 of the Act, on receipt of a report under Clause (a) of Sub-section (3) by the authorised officer or under Clause (a) of Sub-section (4) of Section 13 by the authority, the Magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it, according to law. Therefore, the Magistrate can take cognizance of the offences under the Act only on a report submitted by the authorised officer, as provided under Clause (a) of Sub-section (3) of Section 13 or by the prescribed authority under Clause (a) of Sub-section (4) of Section 13. Therefore, the reports, if cognizance is to be taken on it, are to be submitted not by the officer seizing the timber as provided under Sub-section (1) of Section 13. If he is not an authorised officer, it could be filed only by the authorised officer. Annexure-7 report shows that the report was not submitted by the authorised officer, but by the Deputy Range Officer, who is not an authorised officer. Therefore, in law, based on Annexure-7 report, learned Magistrate cannot try the petitioner, as provided under Section 15 of the Act.

15. Section 468 of Code of Criminal Procedure provides the bar to take cognizance after lapse of the period of limitation. Under Sub-section (1), except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in Sub-section (2), after expiry of the period of limitation. Under Clause (b) of Sub-section (2), the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year and under Clause (c), the period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years.

16. As the maximum sentence provided under Section 9 of the Act is only imprisonment for two years, if it is the first offence and three years, if it is a subsequent offence, as provided under Clause (c) of Sub-section (2) of Section 468 of Code of Criminal Procedure, period of limitation to take cognizance is three years from the date of commission of the offence. No Magistrate can take cognizance of the offence after the expiry of three years, except if it comes under Section 473 of Code of Criminal Procedure. Under Section 473, notwithstanding anything contained in Section 468, a court may take cognizance of the offence, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary to do so in the interest of justice. Therefore, even if there was delay in filing the final report, Magistrate can take cognizance of the offence, in view of the provisions of Section 473 of Code of Criminal Procedure, provided, the delay is properly explained and the Magistrate is satisfied that, in the interest of justice, cognizance is to be taken. But, facts of this case reveal that prosecution has been initiated, not by the authorised officer, as mandated under Section 13 of the Act. The report submitted by the Magistrate, along with the report of the Deputy Range Officer, establishes that even though a final report was submitted before the Divisional Forest Officer, Mannarkkad as early as on 17.5.2002, it is not sanctioned till 6.1.2010, as the authorised officer has decided to submit the final report. In the nature of the case, it is not in the interest of justice to condone the delay as provided under Section 473 of Code of Criminal Procedure. As the period of limitation expired in 2002 and even after expiry of more than seven years since then, it is not in the interest of justice to continue the prosecution. To secure justice, it is, therefore, necessary to quash the proceedings.

Petition is allowed. O.R. No. 17/1999 on the file of Palakkayam Forest Station, Mannarkkad is quashed.