IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 826 of 2006()
1. STATE REPRESENTED BY THE FOREST
... Petitioner
Vs
1. ARAKKA HAMZA, S/O.IBRAHIM,
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.M.C.JOHN
The Hon'ble MR. Justice R.BASANT
Dated :18/09/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.826 & 836 of 2006
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Dated this the 18th day of September 2008
O R D E R
I am proceeding to dispose of both Crl.M.C.Nos.826 and
836 of 2006 in succession by this order.
Crl.M.C.No.826 of 2006
2. The petitioner has come to this court with this
application under Section 482 Cr.P.C to assail Annexure A2
order passed by the learned Magistrate under Section 452
Cr.P.C.
3. A brief reference to skeletal facts may be useful. Two
accused persons (accused 1 and 2) faced indictment for offences
punishable under Section 27(1)(d) of the Kerala Forest Act and
Rule 3(iii) and Rule 23 of the Kerala Forest Produce Transit
Rules read with Section 69 of the Kerala Forest Act. The crux of
the allegations in that prosecution was that 10200 Kgs of
Kulirmavu barks in 153 bags were found available in the
premises of the first accused. In that prosecution, a defence was
taken by the accused that no offence has been committed and
the article seized were covered by permits issued in favour of the
respondent herein who was examined as DW1 in that case. The
judgment of acquittal was passed on 31/1/2004. The seized
articles were allegedly kept in the possession of forest officials.
Crl.M.C.Nos.826 & 836/06 2
After the disposal of the case, as no direction under Section 452
Cr.P.C was issued, the respondent herein, that is DW1 examined
in the trial, went before the learned Magistrate and prayed that
the article seized may be released to him. By the impugned
order produced as Annexure A2 dated 17/2/2005 in
C.M.P.No.2208/2004, the learned Magistrate allowed the said
application and directed that the seized article be released to the
petitioner.
4. That order has not been complied with yet. There is
dispute between the parties about the cause for non-compliance.
Be that as it may, the petitioner has now come to this court with
the prayer that Annexure A2 order may be set aside invoking the
jurisdiction of this court under Section 482 Cr.P.C.
5. The petitioner raises various grounds to challenge the
order. It is contended that seizure was not from the possession
of the respondent herein. It is further contended that no
reasonable opportunity was given to the petitioner to defend the
claim before Annexure A2 order was passed. It, however, is
significant to note that the order under Section 452 Cr.P.C to
challenge which an avenue is provided under Section 454 Cr.P.C
was not challenged and remains without challenge. An
Crl.M.C.Nos.826 & 836/06 3
appropriate appeal under Section 454 Cr.P.C has not been
preferred by the State at all.
6. The learned counsel for the respondent submits that
the State which did not prefer an appeal under Section 454
Cr.P.C should not be permitted to assail the impugned order in
proceedings under Section 482 Cr.P.C. That course is not
available. Powers under Section 482 Cr.P.C wide, sweeping and
awesome may not be invoked to by-pass specific statutory
provisions which oblige an aggrieved person to prefer an appeal.
7. I find merit in the objections raised. I am not
persuaded to agree that this is fit case where the extraordinary
inherent jurisdiction under Section 482 Cr.P.C can or ought to
be invoked. The State having not chosen to challenge the order
under Section 452 Cr.P.C cannot now be permitted to mount a
challenge against that order, long after the period of limitation
by preferring this application under Section 482 Cr.P.C. Powers
under Section 482 Cr.P.C though wide, sweeping and awesome
can also be invoked and exercised by this court in accordance
with law, justly and fairly only. Such powers cannot be invoked
to go to the rescue of a party who has squandered his right of
appeal and has not chosen to prefer any such appeal.
Crl.M.C.Nos.826 & 836/06 4
8. I am, in these circumstances, of the opinion that the
challenge mounted against Annexure A2 order in this petition
under Section 482 Cr.P.C cannot be accepted or entertained.
The challenge fails. This Crl.M.C is accordingly dismissed.
9. There is an existing further dispute between the
parties. The petitioner herein has not so far released the articles
to the respondent in spite of Annexure A2 order. Obviously, the
respondent would be taking steps to execute the order or to
proceed in contempt. It is now submitted that the huge quantity
of articles – 10,200 Kgs of Kulirmavu barks have now vanished
and is not available. The petitioner advances an explanation that
it had got destroyed and therefore it is not possible now to
comply with the order, whereas the respondent raises a
contention that it is not a case of the article being innocently
unavailable; but it has been misappropriated. In this Crl.M.C it
is not necessary for me to embark on a detailed discussion on
that aspect. The respondent can move the learned Magistrate to
enforce Annexure A2 order. Appropriate enquiry must be
conducted by the learned Magistrate after giving opportunity to
the petitioner herein and appropriate orders will have to be
passed by the learned Magistrate. I stop short there as I think it
Crl.M.C.Nos.826 & 836/06 5
unnecessary for me to express any opinion on that controversy.
Crl.M.C.No.836/2008
10. The facts in this case are exactly identical to the facts
in Crl.M.C.No.826/2006. The only difference being the quantity
and nature of the article seized. 2000 Kgs of Karappa barks and
2,100 Kgs of Kulirmavu barks are involved in this case.
Annexure A2 is the identical order passed in this proceedings in
C.M.P.No.2207/04 in C.C.No.599/1999. Here also Annexure A2
order has not been challenged under Section 454 Cr.P.C. Here
also it is contended that it is not possible to comply with the
order as the entire quantity is not available as it is damaged and
destroyed.
11. For the same reason that have been given earlier in
Crl.M.C.No.826/06, I am satisfied that this petition also deserves
to be dismissed with identical observations.
12. In the result, Crl.M.C.No.836/2006 is also dismissed.
(R.BASANT, JUDGE)
jsr
Crl.M.C.Nos.826 & 836/06 6
Crl.M.C.Nos.826 & 836/06 7
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008