Kerala High Court
Gagatharan vs Forest Range Officer on 26 March, 2013
Author: Manjula Chellur
Bench: Manjula Chellur, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
WA.No. 304 of 2013 () IN OP(Crl.).3513/2012
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AGAINST THE JUDGMENT IN OP(Crl.).3513/2012
APPELLANT(S):
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GAGATHARAN, AGED 56 YEARS,
S/O.PARAMESWARAN, NETTUCHENGOTTIL HOUSE,
KOLAVAYAL, WAYANAD DISTRICT.
BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.)
SMT.CELINE JOSEPH
RESPONDENT(S):
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1. FOREST RANGE OFFICER,
CHETHALATH RANGE,
SULTHAN BATHERY,
WAYANAD DISTRICT - 673 121.
2. DIVISIONAL FOREST OFFICER,
SOUTH WAYANAD DIVISION,
KALPETTA, WAYANAD DISTRICT- 673 121.
3. STATE OF KERALA, REPRESENTED BY SECRETARY TO
FOREST DEPARTMENT, SECRETARIAT, TRIVANDRUM- 695 001.
BY SPL.GOVERNMENT PLEADER SRI.M.P.MADHAVAN KUTTY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MANJULA CHELLUR,C.J.
&
K.VINOD CHANDRAN, J.
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Writ Appeal No.304 of 2013
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Dated this the 26th day of March, 2013
JUDGMENT
Manjula Chellur,CJ Heard learned counsel for the appellant as well as Mr.Madhavankutty, learned Government Pleader.
2. The issue involved is whether the petition filed before the learned Single Judge (OP(Crl)) was under Article 227 or 226 of the Constitution of India.
3. The brief facts that led to the filing of the said petition are as under:-
The appellant admittedly is facing two criminal cases for offences punishable under the Kerala Forest Act (hereinafter referred to as the 'Act'). Those criminal cases already pending before the Judicial First Class Magistrate's Court, Sulthan Bathery and cognizance of the said offences is taken. During the pendency of those proceedings, an application came to be filed by the appellant seeking permission of the Magistrate to compound the offence as Writ Appeal No.304 of 2013 2 provided under Section 68 of the Act., claiming parity, as such benefit was extended by the Forest authorities to the co-accused. However, the said application was directed to be considered by the appropriate authority; by the Magistrate. Accordingly it was considered, but rejected by the Forest authorities. Aggrieved by the same, OP(Crl) came to be filed. The learned Judge, after referring to the actual offence alleged to have been committed by the appellant and benefit of compounding the offences under Section 68 of the Act, proceeded to hold that once the report is filed and cognizance is taken by the Magistrate, the authority concerned is absolved of the power under Section 68 of the Act to pass any orders on composition unless the High Court in exercise of its extraordinary powers vested in it directs such composition of offence by the Forest officials.
4. The observation of the learned Single Judge in the entire judgment was with reference to the extraordinary powers of the High Court under Article 226 of the Constitution of India and the matter was never dealt with by the learned Single Judge Writ Appeal No.304 of 2013 3 by exercising superintendence power under Article 227 of the Constitution of India.
5. In that view of the matter, mere nomenclature in filing the writ petition would not go to the root of the matter, as there is no lack of inherent jurisdiction for the Court invoking authority under Article 226 of the Constitution of India. Then coming to the issue, reading of Section 68 of the Act does not indicate that once cognizance is taken by the Magistrate, Forest officials cannot entertain an application under Section 68 of the Act. On the other hand, it is stated that Magistrate cannot evolve a procedure or particular direction how such application under Section 68 has to be considered. Therefore, it would automatically mean when there is no efficacious remedy available, the matter has to be dealt with under Article 226 of the Constitution of India and not by a Magistrate. The OP(Crl) is not filed against the rejection or allowing such application by the Magistrate. It is filed challenging the orders of the Forest official rejecting the prayer under Section 68 of the Act.
6. After the direction of the Magistrate, rightly or wrongly there is an order of the Forest officials. Having invoked the Writ Appeal No.304 of 2013 4 powers of High Court by coming to this Court, one has to see whether the order passed by the Forest officials is right or wrong.
6. According to the learned Government Pleader, by virtue of powers vested under Rule 76, executive orders have to be issued from time to time to carry out the provisions of the Act. Therefore, the rejection of the application of the accused on the ground that the value of the property seized is more than `1000/-, and hence they cannot entertain such application. This contention has to be looked into.
7. Section 68 of the Forest Act reads as under:-
68. Power to compound offences:- (1) Any Forest Officer not below the rank of an Assistant Conservator of Forests may accept from any person reasonably suspected of having committed any forest offence other than an offence under Section 62 or Section 65, a sum of money by way of compensation for the offence which may have been committed and where any property has been seized as liable to confiscation, may release the same on payment of the value thereof as estimated by such officer or confiscate such property to the Government.
(2) On the payment of such sum of money or such value or both, as the case may be, to such officer, the Writ Appeal No.304 of 2013 5 accused person, if in custody, shall be discharged, the property seized shall be released and no further proceeding, shall be taken against such person or property."
8. Apparently no rules are framed so far as procedure to fix value or how to assess the value so far as Section 68 of the Act. No rule is forthcoming indicating the powers of the officer to entertain an application for composition of offence up to what value of the property. In other words, there is nothing on record to show that any rule is made indicating that beyond certain amount of value of the property referred to under Section 68, Forest officials cannot entertain the application for composition of the offence. In the absence of such rule being framed by the authority having power to do so, the executive orders of the Government cannot replace or substitute the rules contemplated under the Act. Therefore, the order at Ext.P9, placing reliance on the executive order, is without justification. The authority concerned ought to have applied its mind to the facts of the case, including concession shown to the co-accused in the very same offence and then decided the matter accordingly.
9. The very reading of Section 68 of the Act clearly Writ Appeal No.304 of 2013 6 indicates, considering such application totally vests in the discretionary power of the authority, that is Forest officials. It is needless to say, such discretion has to be exercised as a reasonable and prudent person. Therefore, the very order at Ext.P9 is not sustainable as there is no source of authority to pass such an order restricting the value of the forest property under Section 68 of the Act.
10.. In view of the above discussion and reasoning, we are of the opinion, the order at Ext.P9 deserves to be set aside and the departmental officials are directed to consider the application for composition of offence afresh, in the light of above observations. The application or the representation of the appellant has to be considered by the respondent-officials within two months from today.
This Writ Appeal is disposed of as above.
MANJULA CHELLUR, CHIEF JUSTICE K.VINOD CHANDRAN, JUDGE sj27/3