N.M. Nazer vs State of Kerala

Thomas P. Joseph, J.—Petitioner is the fourth accused in O.R. No. 1 of 2011 of Poongode Forest Station for offences punishable under Sections 27(1)(d)(e)(iii) and (iv) of the Forest Act (for short, "the Act") and Rules 3, 4 and 7 of the Kerala Forest (Prohibition of Felling Trees Standing on Lands Temporarily or Permanently Assigned) Rules, 1995 (for short, "the Rules). Prosecution case is that accused 1 to 3, on 14.02.2011 cut and removed a few trees from the property of the first accused and transported it to the saw mill of Petitioner/fourth accused. The Forest Officials sealed and locked the saw mill of Petitioner for the reason that it is functioning within five kms. from the reserve forest and no NOC from the Forest Department had been obtained. Petitioner filed C.M.P. No. 1194 of 2011 before learned Judicial First Class Magistrate, Wadakkancherry for a direction to handover the saw mill to the Petitioner. Learned Magistrate dismissed that application observing that the application does not lie u/s 451 of the Code of Criminal Procedure (for short, "the Code") in so far as the saw mill was not produced before the learned Magistrate and the direction for closing the saw mill is for reasons other than those covered by O.R. No. 1 of 2011. That order is under challenge in this proceeding.

I have heard learned Counsel for Petitioner and the learned Public Prosecutor. Learned Counsel for Petitioner submitted that if not Section 451 of the Code, Section 457 of the Code would apply and it was within the power of learned Magistrate to grant relief as prayed for in C.M.P. No. 1194 of 2011. Learned Public Prosecutor submitted that no report regarding closure of the saw mill has been given to the learned Magistrate in connection with O.R. No. 1 of 2011 and hence neither Section 451 nor Section 457 of the Code would apply.

As per the submission of the learned Counsel, Section 451 of the Code has no application. So far as Section 457 of the Code is concerned, it refers to situations where seizure of property is reported to Magistrate and such property is not produced before a criminal court during an enquiry or trial. That does not mean that the said provision refers to cases where the property is not produced before the learned Magistrate at all. On a reading of the said provision what I am able to understand is that the property is produced before the learned Magistrate not in the course of inquiry or trial, but in the course of investigation. In the present case, learned Public Prosecutor submitted and which the learned Counsel also agreed, no report of seizure even has been given to the learned Magistrate, not to say that the property is not produced even in the course of investigation. In the circumstances, Section 457 of the Code has no application.

I also find that the direction to close down the saw mill is for reasons that it is situated within five kms. from the reserve forest and that no NOC has been obtained from the Forest Department. That has nothing to do with the allegations in O.R. No. 1 of 2011 which the learned Magistrate is to consider in case a final report is submitted after investigation. If the closure of the saw mill for the above said reasons is bad according to the Petitioner, remedy open to the Petitioner is to challenge the impugned order in any other manner provided by law.

Resultantly without prejudice to the said right of Petitioner, this Criminal Miscellaneous Case is closed.