PARVATHY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE main question urged for a decision in these cases is whether in the absence of a specific mention in sub-s.(3) (a) of S.9 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (for short, "the Act") about cutting, uprooting, burning or otherwise destroying the tree in contravention of S.6 of the Act, a prosecution could be initiated and proceeded with for such acts punishable under S.7 of the said Act?

(2.) FACTS necessary for a decision of the said question and allied questions urged by the petitioners are: Certain trees which require permit for its cutting (which is not disputed before me) and coming within the purview of the Act were cut from the property of petitioners in Crl. M.C Nos.4193,4194 and 4197 of 2010. The trees were (allegedly) cut by the petitioner in Crl. M.C. Nos.3914,4189 and 4195 of 2010. On detection of the said act which according to the second respondent Is violation of S.6 of the Act, cases were registered as O.R. Nos.18,19 and 20 of 2009 against the respective owners of properties and the person who is said to have assisted them in cutting the trees. The occurrence reports in the said cases are under challenge. Though petitioners have a contention that properties from which the trees were cut are not notified under the Act, at the time of hearing learned counsel for petitioners in fairness did not pursue that contention. Learned counsel contended that initiation and continuation of prosecution against petitioners is bad in law since the allegation is cutting of the trees in violation of S.6 of the Act but a prosecution could lie in view of S. 11 of the Act only if a report is made by the Divisional Forest Officer (for short, "the D.F.O.") to the Magistrate concerned under S.9(3)(a) of the said Act. It is the contention of learned counsel that the D.F.O. is to make a report under S.9(3)(a) of the Act only when the officer of a Forest Department who seizes the timber under sub-s.( 1) of S.9 of the Act submits a report to that effect under sub-s.(2) and when the D.F.O. is satisfied that the timber is of any tree (coming within the purview of the Act) "transported" in contravention of S.6 of the Act. In the present cases, no transportation of timber is involved and hence question of the D.F.O. submitting a report to the Magistrate as required under S.9(3)(a) of the Act and consequently, the Magistrate taking measures as may be necessary for trial of the accused did not arise. According to the learned counsel the prosecution has to be quashed for the said reason. Learned counsel has placed reliance on the decision of the Apex Court in Dr.Aletta Grace Bell [Ms] v. DrXTirkey[Ms]&Anr. ((1996) 1 SCC 285) to contend that any lacuna in the framing of the Act has to go to the advantage of the person facing prosecution. It is the further contention of learned counsel that there is no sanction accorded by the D.F.O. as required under S.12 of the Act for initiation of prosecution and at any rate the sanction if any, is granted without application of mind. The third pointurged is that so far as petitioner in Crl.M.C.Nos.3914,4189 and 4195 of 2010 is concerned there is no material to show that he has in any way assisted in cutting of the trees. Learned Special Government Pleader (for Forest) in response contended that though it may appear that there is a legislative lacuna in sub-s.(3)(a) of S.9 of the Act in so far as the said provision only refers to transportation of timber of any tree in contravention of S.6, it is within the power of court to read into the provision and if necessary supply words to give effect to the object of legislation. According to the learned Public Prosecutor, S.9 of the Act must be read in such a way as to mean that the officer of the Forest Department referred to therein has the power to seize not only the tree cut or timber transported in violation of S.6, but also any tree uprooted, burnt or otherwise destroyed in contravention of S.6 of the Act. Hence the report of the D.F.O. referred in sub-s.(3)(a) of S.9 of the Act could be in respect of any tree cut, uprooted, burnt or otherwise destroyed in contravention of S.6 of the Act and seized under sub-s.(l) of S.9 of the Act. It is contended by learned Special Government Pleader that a report as contemplated in sub-s. (3)(a) of S.9 of the Act has been forwarded to the Magistrate. It is also contended that sanction as required under S. 12 of the Act to launch prosecution has been given to the Forest Officer. According to the learned Special Government Pleader, whetherpetitionerinCrl.M.C.Nos.3914,4189and4195of2010is involved in the incident or not is a question of fact which is not required to be adjudicated by this Court under S.482 of the Code of Criminal Procedure (for short, "the Code"). It is contended that these Crl. M.Cs are liable to be dismissed.

(3.) THE contention raised is that the Magistrate, under S. 11 of the Act could take such measures as may be necessary for trial of petitioners only on receipt of a report under cl.(a) of sub-s.(3) of S.9 but the said provision only deals with timber of any tree "transported" in contravention of S.6. no transportation of timber is involved in the present cases and hence, there could be no report to the Magistrate under cl.(a) of sub-s.(3) of S.9. So much so, the Magistrate could not, under S. 11 of the Act take any measure as may be necessary for trial of petitioners and hence the prosecution against petitioners is liable to be quashed.