Authority To File Final Report & Grant Sanction To Prosecute Same Under Promotion Of Tree Growth Act: Kerala HC Asks Legislature To Clear Anomaly

The Kerala High Court on Tuesday pointed an inconsistency in Sections 9 and 12 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and urged the legislature to clear the same by way of an amendment.

Section 9 provides that a person not below the rank of a Forester can seize the trees together with the tools, if the same is found to be in contravention of Section 6 of the Act. Sub-section (3) thereof provides that the Divisional Forest Officer (DFO) is the competent authority to file a final report before the competent Magistrate Court. However, the DFO is also the prosecution sanctioning authority under Section 12 of the Act.

In this light Justice A. Badharudeen observed:

"The legislature must apply its wisdom either to designate an officer below the rank of the Divisional Forest Officer to file report as provided under Section 9(3) or the sanctioning authority shall be a person holding the post superior to the post of the Divisional Forest Officer. Such an amendment is inevitable to clear the inconsistency."

However, until such a legislative amendment is introduced, the High Court refused to interpret the provision in any other manner. It said, "till the legislature on its wisdom amends statutory provision as pointed out above, it is better to hold that the final report can be filed by the Divisional Forest Officer after granting sanction to do the same, so as to effectuate the intention of the legislature. "

The Criminal Miscellaneous Case was filed seeking to quash the final report filed by a Forest Range Officer before the Judicial Magistrate, Irinjalakkuda, which led to the registration of a case. 

The Counsel appearing for Petitioner placed reliance on the Kerala High Court decision in Abitha Beebi & Ors. v. State of Kerala & anr, where it was 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. 

Special Government Pleader representing the Forest Department, Advocate T. Jayan, contended that if the Divisional Forest Officer alone is competent to file the final report, the officer competent to file the final report as well as to give prosecution sanction under Section 12 of the Act would become one and the same person. In such a 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.

The Court, following the ratio of Abitha Beebi & Ors v. State of Kerala & Anr case, held that the final report filed by the Forest Range Officer and cognizance taken by the Magistrate acting on the report is illegal and therefore are liable to be quashed. "Divisional Forest Officer alone is competent to file report under Section 9(3) of the Act and the same presupposes the fact that Forest Range Officer is not a competent officer under Section 9(3) to file final report," it said.

However, in view of the inconsistency in law as pointed above, the Court directed that this order be placed before the Chief Law Secretary and the Secretary in charge of Forest Department. 

Case Title: Jose and Ors. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 584

Click Here To Read/Download The Order