O R D E R

Petitioner is the widow of late Joemon Joseph, who owned 3 hectares of landed property in Malayattoor Village. The property is bounded by Forest Department's teak plantation. O.R.No.2 of 2020 is registered against the petitioner and two others at the Kurisumudy Forest Station on the allegation that, on 2.8.2020, the accused trespassed into the teak plantation and constructed a road upto the petitioner's property using a JCB Excavator and a Tipper Lorry. By their act, the accused are alleged to have committed offences punishable under Section 27(1)(e)(i)(ii)(iii) and (i)(v) read with Section 84 of the Kerala Forest Act, 1961 (for short, 'the Act'). Upon registration of the O.R, the accused were arrested and the vehicles were seized.

2. The petitioner filed W.P(C).No.17031 of 2020 challenging seizure of the vehicles. During the course of hearing in the writ petition, the petitioner expressed willingness to approach the respondents with an application for compounding. Accordingly, the writ petition was disposed of vide Annexure E judgment, observing that in the event of the petitioner submitting an application for compounding under Section 68 of the Forest Act, the same should be considered by the 1st respondent and orders passed without delay. The grievance of the petitioner is that Annexure F compounding application filed by her in terms of Annexure E judgment, stands rejected as per Annexure H order. Hence, this Crl.M.C.

3. Heard Sri.Babu S.Nair, learned counsel for the petitioner, Sri.B.R.Muraleedharan, learned Senior Government Pleader .

4. Learned counsel for the petitioner assailed the reasons stated in Annexure H for rejecting the compounding application. The main reason stated is that the 3rd accused in O.R.No.2 of 2020 is an accused in Crime No.1478 of 2020 registered at the Kalady Police Station for offences under the Indian Penal Code, the Explosives Act, the Explosives Substance Act and the Kerala Police Act. According to the learned counsel, such a consideration is totally alien to the decision on an application for compounding. Referring to Section 68, it is contended that the forest officials are conferred with power to compound any offence, other than offences under Section 62 or Section 65. The further contention is that the vehicles involved are not liable for confiscation and should be released forthwith.

5. A counter affdivit has been filed by the 2nd respondent refuting the averments in the Crl.M.C. As per the counter affidavit, the vehicles were seized, since they were used for illegal construction of road through the forest land. According to the 2nd respondent, the offences committed by the accused cannot be taken as a simple case of loss of two thousand rupees to the Government, but, should be viewed as a serious case of trespass and construction of road through forest land. In the counter affidavit, it is admitted that the vehicles were not confiscated, since no forest offence was committed in respect of timber, charcoal, firewood or ivory. It is submitted that the 3rd respondent had produced the vehicle before the jurisdictional Magistrate and the vehicles are kept in safe custody as per the direction of the learned Magistrate. It is stated that after completion of investigation, Form C of O.R.No.2 of 2020 has been submitted before the Judicial First Class Magistrate Court-IV, Perumbavoor. According to the 2nd respondent, the compounding application was considered in detail and it was found that the petitioner had involved in the offence intentionally and had abetted the other accused to encroach forest land and construct the road. Further, the 3rd accused in the O.R is an accused in Crime No.1478 of 2020 of Kalady Police Station also. In such circumstances, the petitioner was found ineligible for any concession and consequently, the application for compounding was rejected.

6. Section 68 of the Act, the exercise of power under which is the bone of contention in this Crl.M.C, read as follows:

“68.