V. RAMKUMAR v. RAMKUMAR JUDGEjj

V. RAMKUMAR, J.-------------------------------CRL. M.C No. 4301 OF 2008-------------------------------Dated this the 26th November, 2008.

O R D E R On 16.3.2001 the Forest Range Officer, Thamarasseryregistered a case as O.R.9/01 against the three petitioners hereinfor offences punishable under Section 27(1)(e)(i)(ii),(iii) and (iv) ofthe Kerala Forest Act, 1961 read with Section 2(i) and (iv) of the Forest (Conservation) Act 1980 alleging that a portion of the shedhaving the shape of a triangle constructed by the petitioners in theirown property was overlapping into the adjacent vested forest to alength of 1.5 mtrs. The shed was constructed about five years priorto the inspection and the overlapping portion was demolished andthe encroachment was abated and the property was resumed. Sincethe petitioners felt that they were unnecessarily prosecuted bypursuing the matter in C.C.102/2005 on the file of the JudicialMagistrate of First Class II, Thamarassery, they approached this Court by filing Crl. M.C.2208/07 for quashing the said C.C case.

Asper Annexure II order dated 13.8.2007 this Court permitted thepetitioners to plead for a discharge before the learned Magistrate. Crl. M.C.4301/20082But the learned Magistrate had already framed the charge againstthe petitioners. Hence their application for discharge was rejected. Thereupon, the petitioners filed Crl. R.P.3942/2007 before this Court seeking permission to compound the offence under Section69 of the Kerala Forest Act, 1961. As per Annexure III order dated12.11.2007 this Court permitted the petitioners to move the Magistrate for permission (if it was necessary) to compound theoffence by the department under Section 68 of the Kerala ForestAct, 1961. The petitioners thereafter moved the Magistrate byfiling C.M.P.5491/07 seeking permission of the court to compoundthe offence before the Divisional Forest Officer. As per Annexure Vorder dated 28.11.2007 the learned Magistrate allowed the saidapplication but clarified that the Divisional Forest Officer coulddispose of the compounding petition on its merits using hisdiscretion.

Thereafter the petitioner was served with Annexure VIIIcommunication dated 30.5.2008 to the effect that the DivisionalForest Officer, Kozhikode had informed that the offence could notbe compounded since the occurrence involves encroachment intoforest area and also infraction of the Forest (Conservation) Act. Thepetitioner hence seeks to quash that part of Annexure V orderpassed by the Magistrate observing that the question of Crl. M.C.4301/20083compounding the offences is within the discretion of the DFO. Thepetitioner also challenges Annexure VII communication. 2. Section 68 of the Kerala Forest Act gives any Forest Officernot below the rank of an Assistant Conservator of Forests to acceptfrom any person reasonably suspected of having committed anyforest offence other than an offence under Section 62 or Section 65,a sum of money by way of compensation for the offence which mayhave been committed and where any property has been seized asliable to confiscation, such Officer is given the power to release thesame on payment of the value thereof as estimated by such officeror confiscate such property to the Government.

Sub-section (2) of Section 68 says that on the payment of such sum of money for suchvalue or both, as the case may be, to such officer, the accusedperson, if in custody, shall be discharged and the property seizedshall be released and no further proceedings shall be taken againstsuch person or property. Except in the case of offences fallingunder Section 62 or Section 65 of the Kerala Forest Act all otheroffences are compoundable. Here the principal offence allegedagainst the petitioner is one punishable under Section 27 of the Kerala Forest Act, which is a compoundable offence. Hence it wasnot within the discretion of the Divisional Forest Officer to Crl. M.C.4301/20084compound or not to compound. To that extent Annexure V ordershall stand modified. The Divisional Forest Officer who was movedunder Section 68 had a duty to hear the petitioner and pass orders. All that the petitioner has been served with is only a communicationfrom the Forest Range Officer stating that the Divisional Forestofficer has informed that the petitioners' application cannot beallowed.

The offence charged against the petitioner under Section27 of the Kerala Forest Act is clearly compoundable and the Divisional Forest Officer, if moved again, shall dispose of theapplication under Section 68(1) of the Kerala Forest Act, inaccordance with law, after giving the petitioners an opportunity ofbeing heard and shall pass a speaking order, which shall becommunicated to the petitioners. No doubt, the offence punishableunder the Forest (Conservation) Act being not compoundable, willhave to be dealt with by the Magistrate appropriately after thecomposition of the offence punishable under the Kerala Forest Act. Crl. M.C. Is disposed of accordingly. V. RAMKUMAR JUDGEjj