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2018 DIGILAW 708 (KER)

Ramachandran v. State

2018-09-05

P.UBAID

body2018
ORDER : The revision petitioners herein are the accused in S.T.No.479/1997 of the Chief Judicial Magistrate Court, Kalpetta. They challenge the conviction and sentence against them under S.5(1) of the Kerala Preservation of Trees Act (for short “the KPT Act”). The revision petitioners seek orders purely on legal grounds, and so I feel it not necessary to go to the factual aspects. On the allegation that the accused cut some standing trees at their estate, the Forest Range Officer, Meppadi brought the said prosecution by way of a Form-II report under the Kerala Forest Act. This report was preceded by a Form-I report sent by the Forest Range Officer to court. On the Form-II report, the learned Magistrate took cognizance and issued summons to the accused. They appeared before the learned Magistrate and pleaded not guilty when the substance of the accusation was read over and explained to them. The prosecution examined three witnesses and proved Exts.P1 to P3 documents in the trial court. The accused denied the incriminating circumstances when examined under S.313 Cr.P.C. They did not adduce any evidence in defence. 2. On an appreciation of the evidence, the Trial Court found the accused guilty. On conviction, they were sentenced to undergo simple imprisonment for three months each and to pay a fine of Rs.2500/- each. Aggrieved by the judgment of conviction dated 6.1.2004, the accused approached the Court of Session, Wayanad with Crl. A. No.38/2005. In appeal, the learned Sessions Judge confirmed the conviction, but reduced the fine amount to Rs.2000/- each. The substantive sentence was maintained by the appellate court. 3. The revision petitioners assail the conviction and sentence on the legal ground that the prosecution is not properly and legally brought as required under the provisions of the KPT Act. The scheme of the provisions of the KPT Act is that when an offence punishable under the Act is detected by a Forest Officer, he will have to report the fact to the authorised officer under sub-section (2) of S.13 of the Act. When such a report is received by the authorised officer, he will have to send a report in turn to the Judicial First Class Magistrate having jurisdiction over the area in which the seizure is made. When such a report is received by the authorised officer, he will have to send a report in turn to the Judicial First Class Magistrate having jurisdiction over the area in which the seizure is made. S.15 provides that on receipt of a report from the authorised officer containing the details of the crime committed under the KPT Act, the Magistrate shall take such measures as may be necessary for the trial of the accused and also for the disposal of the property involved. S.18 of the KPT Act further provides that no prosecution shall be instituted against any person without the sanction of the authorised officer. The definite case of the revision petitioners is that in this case there is no report as prescribed under sub-section (2) of S.13 of KPT Act or under clause (a) of sub-section (3) of S.13 of the KPT Act and there is also no sanction as required under S.18 of the Act. 4. The learned Special Public Prosecutor for the Forest Department submitted that the Form-I report in this case proved in evidence can be treated as the report of the authorised officer under clause (a) of sub-section (3) of S.13 of the KPT Act and the Form-II report can be treated as prosecution sanction. This submission cannot be accepted. The report meant under sub-section (2) of S.13 of the Act is a report by the detecting Officer to the authorized officer regarding the detection made by him. The Form-I report in this case is not such a report. It is a report submitted by the Forest Range Officer directly to the court. That cannot in any circumstance be treated as the report of the detecting officer to the authorised officer. 5. The Form-II report in this case is in fact the complaint as usually filed by the forest officials under the Kerala Forest Act. Of course, it is a complaint made by the Forest Range Officer. The Government has by notification appointed the Forest Range Officers concerned as authorised officers under S.3 of the KPT Act. The Form-II report being a report sent by the authorised officer to the court, this complaint can be treated as the report of the authorised officer as meant under clause (a) of sub-section (3) of S.13 of the Act, though it is not in fact such a report. The Form-II report being a report sent by the authorised officer to the court, this complaint can be treated as the report of the authorised officer as meant under clause (a) of sub-section (3) of S.13 of the Act, though it is not in fact such a report. The Form-II report can be accepted as a report on substantial compliance of clause (a) of sub-section (3) of S.13 of the Act. But that alone is not sufficient for a prosecution. The report of the authorised officer to the court under clause (a) must be preceded by the report of the Detecting Officer to the authorised officer. Such a report is not seen produced in this case. Such a report submitted by the detecting officer to the authorised officer must be the basis of the prosecution, though cognizance will be taken by the court only on the second report submitted by the authorised officer to the court. Even if the Form-II report can be accepted as the report of the authorised officer, cognizance cannot be taken by the court without the required sanction prescribed under S.18 of the KPT Act. The scheme of the provisions for a prosecution is that there must first be a report by the detecting officer to the authorised officer, and in turn, the authorised officer shall sent a report to the court under clause (a) of sub-section (3) of S.13 of the Act, and thereafter or along with the report, the required sanction also shall be produced in court. This means that after submitting report under clause (a), the authorised officer will have to consider the question of prosecution, and if he finds the necessity of a prosecution, he will have to authorise prosecution by way of sanction. Only when that sanction is also obtained in court, the court can take cognizance on the report submitted by the authorised officer under clause (a) of sub-section (3) of S.13 of the Act. These essential provisions are not seen complied in with in this case. The Forest Range Officer simply brought a prosecution as usually done under the Kerala Forest Act. I find that cognizance in this case was not legally taken by the trial court. On this legal ground itself that the prosecution is non-est, the accused is entitled for acquittal. So I am not inclined to go to the factual aspects. The Forest Range Officer simply brought a prosecution as usually done under the Kerala Forest Act. I find that cognizance in this case was not legally taken by the trial court. On this legal ground itself that the prosecution is non-est, the accused is entitled for acquittal. So I am not inclined to go to the factual aspects. In the result, this Revision Petition is allowed. The revision petitioners are found not guilty of the offence under S.5(1) of the KPT Act and they are acquitted of the said offence in revision. Accordingly, the conviction and sentence against them in S.T. No. 479/1997 of the court below, and confirmed in appeal by the Court of Session, will stand set aside, and the revision petitioners will stand released from prosecution.