IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 294 of 2011()
1. ROY MATHEW, S/O. K.M.MATHEW,
... Petitioner
Vs
1. STATE OF KERALA, REPRESNTED BY
... Respondent
2. FOREST RANGE OFFICER,
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/02/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.294 of 2011
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Dated this the 3rd day of February, 2011.
ORDER
Petitioner is accused No.5 in C.C.No.411 of 2006 of the court of learned
Judicial First Class Magistrate, Ranni facing trial for offences punishable under
Sections 4(1) and 13(1) of the Kerala Preservation of Trees Act (for short, “the
KPT Act”) and Rules 3(iii) and 10 of the Kerala Forest Produce Transit Rules
(for short, “the Rules”) on the final report submitted by the Range Officer,
Vadasserikkara in O.R.No.9 of 2003. Case is that on 12.07.2003 the forest
officials while on patrol duty found accused Nos.1 and 2 transporting teak timber
in a jeep bearing registration No.KL-03/A-7085 without any pass for such transit.
It is alleged that on questioning accused Nos.1 and 2 confessed to the forest
officials that the teak timber was cut and removed from the property of petitioner.
Annexure-1 is the form-I, report against accused Nos.1 to 3. Annexure-2 is the
form-II, report stating the place of occurrence as property in the possession of
petitioner and his brother, George Mathew. It is contended in this proceeding
that no offence under the Act or the Rules is made out since even according to
the prosecution the teak tree was cut down from the residential compound of
petitioner and in so far as there is no case that it is a residential compound
exceeding one hectare there is no restriction of cutting of trees in view of
Section 4 of the Act. Further argument is that since the teak tree is not a ‘forest
produce’ as defined in the Act or the Kerala Forest Act, there could be no
Crl.MC No.294/2011
2
violation of the rules. It is contended that there is absolutely no material to show
that the teak tree was cut and removed from his property. It is contended that
none of the records produced by the prosecution would show that sanction under
Section 18 of the Act is obtained to proceed against petitioner and others. It is
contended that during the relevant time petitioner was at Ernakulam looking after
his ailing wife. Cutting of tree at any rate was without the knowledge or consent
of petitioner. In support of the contention learned counsel has placed reliance
on the decisions in Augustine Mathew v. State of Kerala (2009 (3)
KLT 560) and Sukumaran v. State of Kerala (2010 (1) KLT 546).
Learned counsel however has requested that petitioner may be allowed to
withdraw this petition and may be permitted to appear in the trial court through
lawyer granting exemption from personal appearance under Section 205 of the
Code of Criminal Procedure (for short, “the Code”). Learned counsel has
highlighted the difficulties of petitioner in personally appearing in court on every
date of posting.
Having regard to the decision of the Supreme Court in TGN Kumar
v. State of Kerala and others (2011 (1) KHC 142) I do not think it
proper to issue any such direction in this proceeding. But I make it clear that if
petitioner preferred an application under Section 205 of the Code learned
Magistrate shall consider that application having regard to the circumstances of
the case, nature of allegations made against petitioner and bearing in mind
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3
the decision of the Supreme Court in Basavaraj R. Patil and others v.
State of Karnataka and others ((2000) 8 SCC 740) and pass
appropriate orders on that application. Coercive steps if any initiated against
petitioner will stand in abeyance for a period of two months from this day or till
learned Magistrate passes appropriate orders on the applications preferred by
the petitioner, whichever is earlier. During such period petitioner shall prefer
appropriate applications in the court below. This petition is disposed of in the
above observation and direction and without prejudice to the right of petitioner to
take up all appropriate contentions/pleas in the trial court.
THOMAS P.JOSEPH,
Judge.
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