Point of Law: Person below the rank of a Forest Officer is competent to file final report as provided under Section 9(3) of the Act.

ORDER :

This is a petition, filed under Section 482 of the Code of Criminal Procedure, to quash Annexure A4 report, filed before the Judicial First Class Magistrate Court, Irinjalakkuda, which led to the registration of C.C.No.2198/2017, pending before that court.

2. Heard the learned counsel for the petitioners as well as the learned Special Government Pleader Sri.T.Jayan, appearing for the State of Kerala, representing Forest Department.

3. The legal question that has been posed in this matter is the competency of the Forest Range Officer to file a report, as mandated under Section 9(3) of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (for short ‘the Act, 2005’ hereinafter). It is argued by the learned counsel for the petitioners that, as per Section 9(1) the Act, 2005, an Officer not below the rank of a Forester, if he has reason to believe that any tree has been cut or any timber has been transported in contravention of Section 6, he may seize the timber together with all tools, ropes, chains and other articles used in the commission of such offence and all vehicles, boats or animals used for carrying such timber. Section 9 provides that every Officer seizing any timber shall report the same to the Divisional Forest Officer and as per Section 9(3), the Divisional Forest Officer is the competent person to file a report after satisfying that the timber mentioned in such report is of any tree transported in contravention of Section 6, before the competent Judicial First Class Magistrate Court.

4. However, the learned Special Government Pleader argued that as per Section 12 the Act, 2005, no prosecution shall be instituted against any person without the sanction of the Divisional Forest Officer and present prosecution also was lodged with sanction of the Divisional Forest Officer. He also argued that if the Divisional Forest Officer alone is competent to file final report, the officer competent to file final report as well as to give prosecution sanction under Section 12 of the Act would become one and the same person. In the said circumstance, a final report filed by the Forest Range Officer along with the sanction given by the Divisional Forest Officer shall be considered as a proper report and the same shall not be a reason to treat the report as not authorised and consequently the cognizance taken by the Magistrate is perfectly legal.

5. Per contra, the learned counsel for the petitioners placed a decision of this Court reported in [2017 (5) KHC 866 : 2018(1) KLT 354 : 2018 (1) KLJ 228], Abitha Beebi & Ors. v. State of Kerala & anr. and in para.9 this Court held that as per S.11 of the 2005 Act, upon a report under Clause (a) of sub-section (3) of S.9, the Magistrate can take cognizance of the offences. As per S.9(3)(a), the Divisional Forest Officer, to whom a report is made under sub-section (2) shall make a report before the Judicial First Class Magistrate's Court, concerned. Here, Annexure-5 report, as pointed out earlier, is filed by the Forest Range Officer, who is not competent to file such a report. Matters being so, the Court below ought not to have taken cognizance of the offences based on Annexure – 5. Therefore, following the ratio of this decision also, the final report filed by the Forest Range Officer and cognizance taken by the Magistrate acting on the report are illegal and therefore, the same are liable to be quashed.

6. While addressing the rival arguments, it is necessary to refer Sections 9 to 12 of the Act, 2005. The same are extracted hereunder;

9. Power to seize timber and other articles involved in the commission of the offence.- (1) Where any Officer of the Forest Department, not below the rank of a Forester, has reason to believe that any tree has been cut or any timber has been transported in contravention of Section 6, he may seize the timber together with all tools, ropes, chains and other articles used in the commission of such offence and all vehicles, boats or animals used for