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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J.
Luca Beltrami, S/o.Antonio Francesco – Appellant
Versus
State Of Kerala – Respondent
Crl.MC.No.4755 of 2019(D)
Decided on : 07-08-2020
Forest Act- Section 27(1)(e)(iv), Section 68,Section 52(2) ;; Code of Criminal Procedure, 1898-Investing Forest Officers with powers- The proceedings conducted by them are without authority invested by the Act and therefore illegal-Any Forest Officer duly empowered to exercise the powers defined in Section 68 of the Forest Act shall, in compounding an offence under that Section, immediately record a statement setting forth the circumstances of the case and the sum for which the case is compounded.
Statement of facts:
Petitioners trespassed into the notified Government Forest by travelling through Blavana-Kallelimedu road and committed the offence alleged against them-The petition on hand is filed in the above circumstances to quash O.R.No.6/2018 (Form-I report) filed by the Deputy Range Forest Officer, Pooyamkutty Forest Station under Section 52(2) of the Act before the Judicial First Class Magistrate Court-II, Kothamangalam which is appended to the petition on hand as Annexure B and all further proceedings initiated by the Court pursuant to the registration of the same.
Finding of the court:
The Forest Range Officer and the Deputy Forest Range Officer by whom the enquiries into the alleged offence have been made and confession statements of the petitioners have been recorded, are not empowered by the Act to do so-The proceedings conducted by them are without authority invested by the Act and therefore illegal. The evidence collected by officers not empowered to do so, the prosecution undoubtedly is devoid of basis and is only to fail- Absolutely no purpose would be served by letting the prosecution against the petitioners to continue- It will only be a futile exercise.
Result: Crl.M.C stands allowed
The legal document pertains to a criminal case involving forest offences under the Kerala Forest Act. The key issues revolve around the legality of the proceedings and the authority of the officers involved.
The court found that the officers who conducted the investigation and recorded confessional statements against the petitioners were not empowered under the relevant provisions of the Forest Act to do so (!) (!) . Specifically, the officers who recorded the confessions, including the Forest Range Officer and Deputy Forest Range Officer, lacked the necessary authority to undertake inquiries, receive evidence, or record confessions under the Act (!) (!) (!) .
Furthermore, the evidence relied upon by the prosecution, primarily the confession statements and the mahazar, was deemed inadmissible because they were recorded by officers not authorized under the law (!) (!) . The court noted that the petitioners' entry into the forest was with permission and solely for the purpose of meeting a resident, which did not constitute trespass or an offence under the relevant section of the Forest Act (!) (!) (!) (!) (!) (!) .
Based on these findings, the court concluded that the proceedings initiated against the petitioners lacked legal basis and were conducted without proper authority. Consequently, the court quashed the first information report and all subsequent proceedings related to the case (!) .
In summary, the court held that the illegal conduct of the officers in collecting evidence invalidated the prosecution’s case, and therefore, the case was dismissed to prevent futile proceedings that lacked lawful foundation (!) .
ORDER :
Petitioners are accused Nos.1 to 3 in O.R. No.6/2018 of Kuttampuzha Forest Range, Pooyamkutty Forest Station, Ernakulam District. O.R. No.6/2018 was registered for offences punishable under Sections 27(1)(e) (iv) of the Kerala Forest Act, 1961 (for short 'the Act').
2. As per the case of the prosecution, petitioners trespassed into the notified Government Forest by travelling through Blavana-Kallelimedu road and committed the offence alleged against them. Accordingly, O.R (Form-I) was registered against them. The petition on hand is filed in the above circumstances to quash O.R.No.6/2018 (Form-I report) filed by the Deputy Range Forest Officer, Pooyamkutty Forest Station under Section 52(2) of the Act before the Judicial First Class Magistrate Court-II, Kothamangalam which is appended to the petition on hand as Annexure B and all further proceedings initiated by the Court pursuant to the registration of the same.
3. It is contended by Sri.Nireesh Mathew, the learned counsel for the petitioners that the confession statements of the petitioners were recorded, copies of which have been appended to the petition on hand as Annexures C, E and F, wherefrom it can be seen that the confessions were made before the Forest Range Officer, Kuttampuzha who is not an officer empowered to do so under Section 72 of the Act. According to him, an officer below the rank of Assistant Conservator of Forests, is not empowered to enquire into a forest offence, receive and record evidence and the officer who had recorded the confession statements in the case on hand being a Forest Range Officer who is below in rank of the Assistant Conservator of Forests mentioned in Section 72 of the Act, Annexures C, E and F have no validity at all and cannot be received in evidence and relied upon. According to the learned counsel, Annexures C, E and F confession statements recorded from accused 1 to 3 being the only material pieces of evidence available for the prosecution to establish guilt against them, those having been recorded by an incompetent officer, is non est in the eye of law and being the solitary evidence, even if the petitioners are directed to face trial, a conviction cannot be procured against them on the basis of those. It is further contended by the learned counsel that the first petitioner is an Italian resident permanently residing at Udumbannoor and being the Director of Goground Beans and Spices Pvt Ltd, is engaged in the business of Cocoa Beans. Therefore, he was in search of areas where Cocoa beans are available and for the purpose, along with other petitioners, he travelled in a jeep to visit the ration shop of one Mr.Natarajan, who was informed as engaged in the business of Cocoa beans in Kallelimedu area. Annexure A is the Mahazar prepared in O.R. No.6/18 by the prosecution and it is evidenced therefrom that solely to meet Mr.Natarajan, the petitioners have visited Kallelimedu area. It is clear from Annexure C confession statement recorded from 1st accused that their visit to the area was with the permission of a Forest Officer/Guard and therefore, their entry cannot be said to be “trespass” into the notified forest area. For the reason itself an offence under Section 27(1)(e)(iv) of the Act, will not be attracted on the basis of the allegations. Moreover, in the case on hand there is not even an allegation against the petitioners that they have trespassed into the reserve forest area intentionally to commit any offence. Therefore, registration of Annexure B crime against the petitioners is devoid of any basis. In the above circumstances Annexure B and all further proceedings being unsustainable in law are sought to be quashed.
4. Annexure A is the copy of the mahazar prepared in O.R. No.6/2018. Annexure B is the certified copy of Form-I prepared under Section 52(2) of the Act. Annexures C, E and F are the statements recorded from the petitioners. It is recorded in Annexure C, E & F statements that the petitioners went to Kallelimedu
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