Kareem and Others vs State of Kerala

N.K. Balakrishnan, J.—This petition has been filed to quash Annexure - E complaint and the action pursuant thereto in CC. No. 115/05 of JFCM (Special Forest Offence), Manjeri. The petitioners were alleged to have committed offence u/s 27(1)(e) IV, iii of Kerala Forest Act. The allegation is that on 07.04.02, these accused persons trespassed into bit No. 7 of Pothukal block which was a part of the large forest area measuring 11638 hectors. It was alleged that these petitioners committed trespass into the forest area and cut and removed bamboo clusters and bushes. Occurrence report No. 8/12 was registered and after completion of the investigation, a complaint was filed by the Forest Range Officer.

The main thrust of the argument advanced by the learned counsel for the petitioners is that the 8th petitioners (who is shown as the 8th accused in the complaint) and 5 other persons had filed O.A. 6/2001 before the Forest Tribunal, Kozhikode u/s 8 of Kerala Act 26/71 to declare that the 12 acres of land shown in the Schedule thereto situated in Pothukal block was not a forest vested in the Government by virtue of the provisions of Act 26 of 71.

As per Annexure - B order, the Forest Tribunal held that the O.A. Schedule property cannot be said to a private forest and it was not an enclave within wooded area. Hence, O.A. 6/2001 was allowed. It is further submitted by the learned counsel for the petitioners that though the Forest Department/State referred appeal before this court as MFA No. 166/2002, that was dismissed by this court on 02.01.2008. The learned Special G.P. for Forest submits that a SLP was filed by the State before the Hon''ble Supreme Court and it is now pending as SLP No. 21607/08. The learned counsel for the petitioners would submit that since the Forest Tribunal and this court have already found that the property in question which alleged to have been trespassed upon by the petitioners is not a vested forest, Annexure - A complaint is unsustainable. In this connection the learned Special G.P. would draw my attention to Section 8 of the Act which reads:-Settlement of dispute:-

(1) Where any dispute arised as to whether-

(a) any land is a private forest or not; or

(b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest has not vested in the government [may, within such period as may be prescribed, apply to the Tribunal] for decision of the dispute.

(2) Any application under Sub-section (1) shall be in such form as may be prescribed.

(3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and -

(a) no appeal has been preferred against the decision of the Tribunal within the period specified therefore; or

(b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day.

According to the learned Special G.P., Annexure - B order was passed by the Tribunal on 29.09.2001 whereas the incident in question referred to in Annexure - A took place on 07.04.02. By virtue of the provisions contained in Section 8(3) even if the order in O.A. passed by the Forest Tribunal becomes final, the custodian of vested forests has to restore such possession of land or private forest or portion as the case may be to the person in possession thereof immediately before the appointed day. It is argued with vehemence by the learned counsel for the petitioners that since it was found by the Forest Dept. and also by this Court that the properties were in the possession of the petitioners mentioned in the O.A. and that it was not surrounded by forest, it cannot be said that they were out of possession, so as to seek restoration of possession and that may be the reason why the party did not move the High Court for issuing direction to the custodian for restoration of possession. But the learned Special G.P. submits that the appeal was filed with a petition to condone the delay, that delay was condoned and appeal was admitted though it was subsequently dismissed on merit. What ever that be, according to the learned Special G.P., so long as Section 8(3) mandates that the party has to get back possession by resorting to the remedy provided u/s 8(3), the party even if they were in possession of such land or private forest or portion cannot simply take possession of the land by himself or cut or remove trees or shrubs. According to the learned Special G.P. if the party has to get back possession of such land the remedy provided u/s 8(3) has to be resorted to. In any event according to the learned Special G.P. since the SLP is pending before the Apex Court and also because the petitioners did not seek the remedy of restoration of possession as provided u/s 8(3) of the Act this court should not invoke jurisdiction u/s 482 Cr.P.C.

The learned counsel for the petitioner would submit that the order passed by the Tribunal and by this court would show that the petitioners therein were actually in possession of the property and as such unless there is any element of mens rea, even if it is not necessary to establish the guilt under a special statute, still the circumstance would show that the act complied of cannot attract the offence as mentioned in Annexure - A complaint.

It is pointed out that the other petitioners shown in Annexure - A as accused were the workers of the 8th accused who is the 3rd petitioner in Annexure - B order. These are contentions that can be raised by the petitioners before the learned Magistrate. They can also file a petition for discharge, after pre-charge evidence is recorded by the learned Magistrate.

The Criminal M.C. is disposed of as stated below: The request to quash the complaint (Annexure -E) is rejected but the petitioners are at liberty to raise all these contentions before the learned Magistrate at the appropriate stage.