Kerala High Court
Manu.V.M vs State Of Kerala on 5 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
B.A.No.5412 of 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
BAIL APPL. NO. 5412 OF 2024
O.R.NO.1/2024 OF PARIYARAM FOREST RANGE OFFICE, THRISSUR
PETITIONERS/ACCUSED 2 AND 3:
1 MANU.V.M.,
AGED 33 YEARS
S/O.MICHEL, VADAPPURATH HOUSE, GOTHURUTHE P.O.,
PARAVOOR, ERNAKULAM, PIN - 683516
2 ANEESH,
AGED 38 YEARS, CHENGADU HOUSE, KUTTIKADU DESOM,
PARIYARAM VILLAGE, CHALAKKUDY,
THRISSUR DISTRICT, PIN - 680721
BY ADVS.
SRI.T.K.SANDEEP
SMT.RESHMA VISWANATHAN
SMT.SWETHA R.
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY SR.PP.SMT.SEETHA S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ORDER
Dated this the 05th day of Sepetember, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre- arrest bail.
2. The petitioners are the accused 2 and 3 in O.R.No.01/2024 of the Pariyaram Forest Range Office, Thrissur, which is registered against them for allegedly committing the offence punishable under Section 27(i)
(e)(iv) of the Kerala Forest Act, 1961 (in short, 'Act').
3. The crux of the prosecution case is that: on 10.06.2024, the Section Forest Officer of the Forest Station found three persons coming out from the Ithanoli Colony area, and when he attempted to intercept the three persons, two persons fled away from the scene and only the 1st accused was apprehended. In the interrogation of the 1st accused, he has stated that it B.A.No.5412 of 2024 3 2024:KER:67510 was the accused 2 and 3 who are with him. Subsequently, the accused 2 and 3 were also arrested. Thus, the accused have committed the above offence.
4. Heard; Sri.T.K.Sandeep, the learned counsel appearing for the petitioners and Smt.Seetha S, the learned Senior Public Prosecutor.
5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime solely on the basis of the alleged confession statement made by the 1st accused, which is inadmissible in evidence, in view of the law laid down by this Court in Luca Beltrami and Others v. State of Kerala, [2020 (4) KHC 603] and Prakashan v. State of Kerala [2023 (1) KHC 536]. Even otherwise, the only allegation made against the 1 st accused is that he was found along with two other persons in the forest area. There is no allegation that the accused had stolen anything of the defacto B.A.No.5412 of 2024 4 2024:KER:67510 complainant. The forest officials have a previous animosity towards the petitioners and have falsely implicated the accused 1 and 3 in several crimes. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail.
6. The learned Public Prosecutor vehemently opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the 1st accused is involved in numerous crimes of the said Forest Station and the 2nd petitioner/ 3rd accused is involved in five crimes. The petitioners' custodial interrogation is necessary for the full fledged investigation of the crime. Therefore, the application may be dismissed.
7. On the perusal of the materials on record, it can be gathered that the specific allegation is that the 1st accused was seen company out of the forest area with two persons. But, the two persons fled away B.A.No.5412 of 2024 5 2024:KER:67510 from the scene on seeing the forest officer. It is during the interrogation of the 1st accused, he stated that it was the accused 2 and 3 who are along with him. Indisputably, the 1st accused had not taken any article from the forest land. The ground to register the crime is that the 1st accused and the two other persons had illegally trespassed into the forest area.
8. This Court in Luca Beltrami's case while interpreting Section 72 of the Forest Act has held as follows:
"8. Therefore, the Forest Range Officer and the Deputy Forest Range Officer by whom the enquiries into the alleged offence have been made and confession statements of the petitioners have been recorded, are not empowered by the Act to do so. In the said circumstances, the proceedings conducted by them are without authority invested by the Act and therefore illegal. The evidence in the case on hand, having been collected by officers not empowered to do so, the prosecution undoubtedly is devoid of basis and is only to fail. Xxxxxxx" (emphasis supplied)
9. This Court in dealing with an analogous provision to Section 72 of the Act, namely Section 50 of B.A.No.5412 of 2024 6 2024:KER:67510 the Wild Life Protection Act, 1972, in Prakashan's case, while considering an application filed under Section 438 of the Code, has succinctly observed thus:-
"5. The learned Counsel for the petitioners pointed out a very serious anomaly insofar as the investigation and recording of the confession by the Investigating Officer herein, who is none other than the Forest Ranger who is not authorised under S.50(8) of the Wild Life (Protection) Act, 1972 neither to investigate nor to record confession. The learned Counsel for the petitioner placed two decisions on this point. Luca Beltrami and Others v. State of Kerala reported in 2020 (4) KHC 603 is the final decision placed to substantiate the said point. Apart from that, he has placed decision of the Bombay High Court in Criminal Revision Application No.1 of 2015 rendered on 22/06/2015.
6. The learned Public Prosecutor though opposed this contention, she failed to go out of the orbit of S.50(8) of the Wild Life (Protection) Act, 1972. S.50 deals with the power of entry, search, arrest and detention of persons involved in offences under the Wild Life (Protection) Act, 1972. Sub- Sections (8) and (9) of S.50 of the Wild Life (Protection) Act provides as under: (8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or (an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf) shall have the powers, for purposes of making investigation into any offence against any provision of this Act--
(a) to issue a search warrant;
(b) to enforce the attendance of witnesses;B.A.No.5412 of 2024 7
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(c) to compel the discovery and production of documents and material objects; and
(d) to receive and record evidence.
(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person. Even on a cursory reading of the above legal provisions, it is clear that at the time of passing the Wild Life (Protection) Act, sub-section (8) was not there. However, by way of amendment introduced with effect from Act 16 of 2003, the Assistant Director of Wild Life Preservation was authorised to issue a search warrant; to enforce the attendance of witnesses; to compel the discovery and production of documents and material objects; and to receive and record evidence. Thereafter, by way of amendment introduced by amendment Act 44 of 1991, Assistant Conservator of Forest was authorised by the State Government in this behalf also was given the power to do the said exercise since S.50(8) authorises an officer not below the rank of Assistant Director of Wild Life Preservation or Assistant Conservator of Forests to receive and record evidence. Any officer not below their rank cannot have the power to do any acts provided as (a) to (d) and if anything done by the officer below the rank is a nullity and has no legal effect. Be it as may, the confession recorded by the Forest Ranger is a nullity and the same has no legal effect. So the legal question is emphatically clear that the competent persons to record confession statement, i.e., to record and receive evidence are (1) Assistant Director, Wild Life Preservation or (2) Assistant Conservator of Forests authorised by the State Government in this behalf and no other officer / officers below their rank. Therefore, the confession statement B.A.No.5412 of 2024 8 2024:KER:67510 relied on by the prosecution to array accused Nos.2 to 4 in the crime, only be found as a statement recorded by an incompetent officer and the same has no legal sanctity." (emphasis given)
10. Almost on the same lines in the afore- cited two precedents this Court again while construing Section 50 of the Wild Life Protection Act, in Gopi v. State of Kerala [2024 KHC 18] has held in the following lines:-
"5. xxxxxx The issue involved in the present case is pertaining to the validity or the evidentiary value of the confession statement alleged to have been recorded by the forest official and whether it would come under the purview of clause (d) of sub-section (8) of Section 50 of the Act. Hence, the crucial question that requires initial consideration are (1) whether the officers empowered under sub-section (8) will have the authority to record a confession statement, if so, what is the procedure to be followed (2) if not, what would be the evidentiary value of the confession statement, if any recorded by such officers and (3) whether a conviction can be based on such confession statement.
6. Sub-section (9) says that the statement or the evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, but provided that it has been taken in the presence of the accused person. The statement or the evidence recorded under clause (d) of sub- section (8) would be admissible in any subsequent trial only when it is recorded or taken down "in the presence of accused B.A.No.5412 of 2024 9 2024:KER:67510 person". The mandate that it should be recorded or taken down in the presence of accused would convey largely what is intended by the legislature by the abovesaid clause (d) to Section 50(8) and 50(9) of the Act. A confession statement taken or recorded from the accused will not come under the purview of a statement recorded "in the presence of accused". The user of the term "in the presence of accused" indicates and stands for any evidence or statement either recorded or taken down from a person other than an accused. The said legal position can also be gathered when there are more than one accused in the crime. The upshot of the discussion is that the area specified, the power assigned and the jurisdiction vested under clause
(d) of Section 50(8) of the Act is only pertaining to record any evidence or statement in the presence of an accused person by a competent officer and does not include a confession statement by the accused. A confession statement recorded by any such officer will not fall under the purview of clause (d) of Section 50(8) of the Act and hence not admissible in evidence under that provision.
Necessarily, the competent officer empowered under Section 50(8) of the Act cannot exercise the jurisdiction of the Magistrate to record a confession under the provisions of the Code of Criminal Procedure viz., Section 164 Cr.P.C. during the course of investigation." (again emphasised)
11. The ratio decidendi in the above three precedents of this Court leaves no room for any doubt that any officer below the rank of Assistant Director, Wild Life Preservation or Assistant Conservator of B.A.No.5412 of 2024 10 2024:KER:67510 Forests does not have the power to do any act prescribed under clauses (a) to (d) of Sub Section (8) of Section 50 of the Forest Act. Therefore, as rightly observed in Prakashan's case, any confession recorded by any other officer, other than the above three class of officers, is a nullity and and have no sanctity in the eyes of law.
12. Admittedly, in the instant case, the confession of the 1st accused has not been recorded by the above stated three class of officers. There is also no other incriminating materials placed before this Court to establish the involvement of the petitioners in the crime.
13. Viewed in the above background and taking into account the statement filed by the Investigating Officer that the petitioners have been implicated on the strength of the confession statement made by the 1st accused, I am prima facie of view that the petitioners have made out exceptional grounds to B.A.No.5412 of 2024 11 2024:KER:67510 invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code and have fulfilled the parameters laid down by the Honourable Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] and a plethora of judgments warranting this Court to exercise its discretionary powers. Hence, I am inclined to allow the bail application, but subject to stringent conditions:-
(i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today.
(ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/-
(Rupees fifty thousand only) with two solvent sureties for the like amount each;
(iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. B.A.No.5412 of 2024 12
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(iv) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;
(v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the effect before the said court within the said period;
(vi)The petitioners shall not get involved in any other offence while on bail;
(vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
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(viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below.
(ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) And another [2020 (1) KHC 663].
(x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.
Sd/-
C.S.DIAS JUDGE NAB