Procedure Under CrPC Can Be Used To Launch Prosecution For Offences U/S 7 Of Land Conservancy Act: Kerala High Court

The Kerala High Court on Monday held that the procedure contemplated under the Code of Criminal Procedure (CrPC) to initiate prosecution against an accused can be used for offences under Section 7 of the Kerala Land Conservancy Act.

Justice Ziyad Rahman A.A added that CrPC was applicable since the Act did not provide for a specific procedure for the same. The Judge opined that the fact that offences under Section 7 were made cognizable fortified this view.

"Coming to the provisions of the Land Conservancy Act, I am unable to find any provision which excludes the operation of Section 154 of Cr.PC and contemplates any separate specific procedure for initiation of the prosecution. Therefore, I am of the view that, in the absence of such procedure, the proceedings as contemplated under Section 154 of Cr.PC and the other relevant provisions of Cr.PC are to be followed to prosecute the accused for the offence under Section 7 of the Land Conservancy Act."

The Court also observed that although certain procedures have been mentioned under the Act and Rules framed thereunder, compliance with such procedures is not mandatory to initiate prosecution. 

The petitioner was accused of having encroached upon Government land and made certain constructions on the same with the intention to make unlawful gains. A complaint was filed by the Tahsildar which led to an FIR being lodged and a final report being filed by the police. He was thereby booked under Section 7(a) of the Act.

Aggrieved by this, he approached the High Court seeking to quash all proceedings pending against him in the matter.

Advocates N.K Mohanlal and Lakshmi Varada V.P appearing for the petitioner contended that the Tahsildar was not competent to launch prosecution under the Act. Reliance was placed on Section 15 to argue that a separate procedure was contemplated to initiate prosecution and that the District Collector was the only competent person for the same.

The petitioner also asserted that according to CrPC, when the special statute provides for a separate procedure for initiation of prosecution for an offence, such procedure has to be followed meticulously. Therefore, the prosecution herein was argued to be unsustainable for being instituted as per CrPC, instead of the Land Conservancy Act.

Public Prosecutor Sudheer Gopalakrishnan appeared for the respondents and submitted that the Act does not contemplate a separate procedure and only provides general provisions to deal with the various instances of encroachment of Government land and the steps to be taken to restore the possession thereof.

Upon perusing the relevant provisions, the Court found that the petitioner's contention was not legally sustainable. It was observed that the Sections relied on by the petitioner cannot be treated as a specific procedure for the institution of prosecution under the Act.

It was also added that nothing in the Act excluded the application of the procedure contemplated in the CrPC to launch a prosecution.

"It is true that Rule 7 refers to the prosecution under Section 7 of the Act. However, in my view, the aforesaid provision is not an exclusive provision which prohibits the normal procedure under Cr.P.C, for initiation of prosecution. A careful reading of the same would indicate that the aforesaid Rule is only directory in nature, and it does not in any manner prevent the Police from investigating and filing charge sheet for the offences punishable under the Act based on the information furnished by the Tahsildar."

The Court also found that it was not specifically mentioned in any of the provisions of the Act or Rules that the prosecution has to be initiated by the Collector himself. The Single added that there was nothing to indicate that in the absence of compliance of procedure contemplated in the Rules, the proceedings initiated would be vitiated.

Moreover, since the offences under Section 7 of the Act have been specifically made cognizable, it was held that the Police are competent and bound to conduct an investigation as per procedure under Section 154 of CrPC, which mandates the registration of F.I.R upon receiving information of commission of a cognizable offence.

In fact, neither the Land Conservancy Act nor the Rules make it necessary to file a complaint for initiating the prosecution.

Therefore, it was concluded that no statutory implications emerge from provisions of the Land Conservancy Act and the Rules framed thereunder, necessitating any deviation from the procedure for registration of the crime, investigation of the same and prosecuting the accused as per the provisions of CrPC.

As such, the petition was dismissed.