Joji John vs State Of Kerala
2022 Latest Caselaw 3769 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                      BAIL APPL. NO. 7639 OF 2021
              Crime No.533/2020 of Vellathooval Police Station

PETITIONER/ACCUSED:

            JOJI JOHN
            AGED 45 YEARS, S/O. LATE C U JOHN, JOY HOME THEKKADY
            P.O, KUMILY, PIN 685 509 PRESENTLY WORKING AS RANGE
            FOREST OFFICER PONKUNNAM SOCIAL FORESTRY RANGE,
            KANAKAPALAM, ERUMELI, PIN 686 509.
            BY ADVS.
            SUMAN CHAKRAVARTHY
            K.R.RIJA


RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM.
            BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION


OTHER PRESENT:

            SRI. C.K. SURESH (SR.PP)



     THIS   BAIL   APPLICATION    HAVING    COME   UP   FOR      ADMISSION   ON
05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. No.7639/2021                         -2-

                                     ORDER

The petitioner is the accused in Crime No.533/2020 of Vellathooval Police

Station alleging commission of offences under Sections 120B and 379 of the Indian

Penal Code and Section 3 (1) of the Prevention of Damage to Public Property Act,

1984.

2. The allegation against the petitioner who is the 1 st accused in Crime

No.533/2021 is that he along with the other accused in the case had in connivance

with each other accused and in violation of the provisions of law permitted the

cutting and removal of valuable trees belonging to the Government under the guise

of granting permission to a landowner who had obtained a 'patta' from the

Government for agricultural purposes, to cut and remove certain trees standing on

the land assigned for agriculture purposes. The petitioner was, at the relevant time,

working as Forest Range Officer, Adimaly. It is alleged that the petitioner entered

into a conspiracy with the 2nd accused who is a Field Staff of Konnathady Village

office and the 3rd accused who is Section Forest Officer, Mukkudam and approached

one Joy and generated reports that suggest that there were 8 teak trees standing in

the property assigned to the aforesaid Joy and that these teak trees had a girth less

than 19 inches. This was done, allegedly, after obtaining the signature of the

aforesaid Joy on blank papers. After creating documents as above including a report

from the 2nd accused indicating that the trees in question were standing in the

property assigned to the aforesaid Joy, the petitioner and other accused facilitated

the cutting and removal of 6 teak trees (some of which are stated to be 100 years of

old) standing on the Government puramboke land adjoining the land assigned to

the aforesaid Joy. Apart from the above 6 teak trees one other teak tree having 446

c.m girth and length of 30 meters was cut and the same was stored in the property

of the aforesaid Joy.

3. Sri. Suman Chakravarthy, the learned counsel for the petitioner would

submit that the petitioner is absolutely innocent in the matter. It is submitted that

the petitioner had not committed any offence and had only discharged his duties in

accordance with the law. It is submitted that the petitioner had relied on Annexure-

B certificate of the Village Officer where it had been reported that the trees in

question were standing on the property assigned to the aforesaid Joy. It is

submitted that the petitioner thereafter forwarded the application for a report to the

Section Forest Officer, Mukkudam Forest Station who had reported, that after

inspection, the trees in question can be cut and removed. He referred to Annexure-

C in this regard. It is submitted that it is only thereafter that the petitioner gave

Annexure-D permission dated 27-03-2020 which was in bona fide discharge of his

official duties as authorised officer under the provisions of Kerala Promotion of

Tree Growth in Non-Forest areas Act, 2005. It is submitted that in the 'patta' issued

to the aforesaid Joy no trees were reserved to the Government and that this is not

the first time that permission was being granted to cut and remove trees standing

on such 'patta' land. It is submitted that after the cutting permission was issued,

permission for a transit pass was made by the landowner which was also verified by

the petitioner through his subordinate officer. Reference is made to Annexure-E

report of the Section Forest Officer, Mukkudam. It is submitted that only after

obtaining Annexure-E report did the petitioner issue the transit pass (Annexure-F).

It is also submitted that on receiving information regarding the possible cutting of

trees from Government land the petitioner issued Annexure-G communication

informing the landowner that the cutting permit is cancelled. It is submitted that

Annexure-F report was also sent to the Tahsildar, Idukki. It is submitted that a case

was also registered against the aforesaid Joy and that the timber which had been cut

and removed was also seized from the person to whom the aforesaid Joy had sold

the timber. Reference is also made to circulars/orders namely Annexure-J & K to

point out that the petitioner had acted only in accordance with law and the

provisions of the aforesaid circulars. It is submitted that the cancellation of

Annexures J & K orders on 02-02-2021 is of no consequence as the cutting

permission was issued in accordance with the circulars in force at the relevant time.

It is submitted that there is no bar in granting cutting permit in respect of trees

standing in the 'patta' land when trees are not reserved to the Government while

issuing the 'patta'. It is submitted that the entire career of the petitioner will be

destroyed if the petitioner is not granted anticipatory bail.

4. Sri. Grashious Kuriakose, the learned Senior Advocate and Additional

Director General of Prosecution and Sri. C.K. Suresh, learned Senior Public

Prosecutor would vehemently oppose the grant of bail. It is submitted that after the

issuance of Annexure-K Government order on 24-10-2020, the petitioner misused

his official position and granted cutting permits to the aforesaid Joy making it

appear that the same was a bona fide action by the petitioner. It is submitted that

the petitioner arranged for a person named Baiju who was working as a Manager for

the family of the petitioner for many years to meet one Sanal who is a timber

merchant and the aforesaid Baiju and Sanal together met with the landowner (after

meeting the petitioner and seeing the teak trees to be cut) and entered into an

agreement with him to purchase the trees for a total sum of Rs.1,80,000/-. An

agreement was made between the Joy and the aforesaid Baiju and one of the

witnesses was the aforesaid Sanal. It is submitted that the signature of the

landowner was obtained on blank papers and certain documents such as land tax

receipts were also obtained from him. It is submitted that thereafter, applications

were prepared in the blank paper obtained from the landowner and reports

mentioned above were obtained from the Village Field Staff and Section Forest

Officer, Mukkudam and a cutting permit was issued by the petitioner, knowing fully

well that the trees to be cut were trees standing on Government land. It is submitted

that on 27-03-2020 based on the cutting permit/pass, the trees in question were

cut. It is submitted that 6 trees were cut from the Government land 2 trees were cut

from the land belonging to the Joy and on 21-11-2020 after cutting the same into

logs and pieces of different sizes the same was transported. It is submitted that the

prosecution has received reliable evidence to show that the petitioner was present at

the time when the cut logs were loaded onto a lorry and that the workers for the

same were arranged by the petitioner.

5. It is submitted that on 21-11-2020 after cutting down the trees they

were transported in 6 loads in a pick-up jeep to a place near Manguth Bridge where

in the presence of accused Nos. 1 and 3 they were loaded onto a truck as one load. It

is submitted that the workers who were engaged in the work, when questioned,

revealed that they were arranged by the 1st accused stating that the timber in

question was purchased by the 1st accused from the aforesaid Joy Thomas (land

owner) for the purpose of a resort belonging to the wife of the 1 st accused. It is also

alleged that after the timer was cut and loaded onto the truck, the 1st

accused/petitioner accompanied the load in another vehicle. It is pointed out that

after the timer was cut into different sizes the same was stored in a building bearing

No.492 in the 11th ward of Kumily Grama Panchayat which belongs to the mother of

the petitioner/1st accused. It is submitted that the petitioner is the kingpin in the

entire issue and that the grant of bail to the other accused is no ground to grant bail

to the petitioner.

6. The learned counsel for the petitioner cited Joginder Kumar v.

State of U.P and others; 1994 KHC 189 to contend that indiscriminate arrest by

the police should be curbed and life and liberty of the individual must be given due

weight. He relied on Siddharth v. State of U.P and another; 2021 (5) KHC

353 to contend that where the accused has cooperated with the investigation in

every manner there is no compulsion on the investigating officer to arrest the

accused. He relied on Thomas Philip and another v. Divisional Forest

officer; 2018 (4) KLT 678 & Ouseph Kuriakose v. Divisional Forest Officer

and another; 2020 KHC 5604 to contend that the cutting of trees standing in

non-forest lands can be permitted in terms of the Kerala Promotion of Tree Growth

in Non-Forest Areas Act, 2005 and the restrictions earlier imposed on the Kerala

Preservation of Trees Act, 1986 has been considerably relaxed by the provisions of

the latter Act. He relied on Augustine Mathew and another v. State of

Kerala; 2009 (3) KHC 179 to contend that even under the provisions of the

Preservation of Trees Act 1986 there is no prohibition in cutting and removing teak

trees standing on residential lands having an extent of less than one hectre and that

there is no prohibition in the Forest (Prohibition of Felling of Trees Standing on

Land Temporarily or Permanently Assigned) Rules 1995 (Kerala), in cutting and

removing of trees from assigned lands in the absence of any reservation in the

patta. He relied on Arnesh Kumar v. State of Bihar and another; (2014) 8

SCC 273 to contend that the arrest and detention of the petitioner is not necessary

in the facts and circumstances of the case and submitted that the arrest of the

petitioner would be in violation of the guidelines contained in that judgment. He

relied on Sukumaran and others v. State of Kerala; 2010 (1) KHC 508 to

contend that an owner of a non - forest land, if it is not within the notified area as

provided under sub-S.3 of S.6 of the Act, is entitled to cut, uproot or transport all

trees except sandalwood trees. He relied on Susheela Agarwal v. State (NCT)

of Delhi and another; (2020) 5 SCC 1 to contend that the power to grant

anticipatory bail is wide and it should not be restricted in any manner. He relied on

the judgment of this court in Gopalakrishnan @ Dileep v. State of Kerala;

2022 (1) KLT 774 to contend that where, prima facie, the offences alleged are not

made out, the petitioner is entitled to be released on bail.

7. I have considered the contentions raised. Though the principles laid

down in the decisions relied on by the learned counsel for the petitioner are

unexceptionable I am afraid that the decisions do not aid the petitioner in the facts

and circumstances of the present case. The facts of the present case show that while

on paper it appears that the petitioner had acted bonafide and had only exercised

his powers in terms of the law, the fact remains that the allegation against the

petitioner is that he had, for his personal benefit, managed the cutting and removal

of valuable trees, some of which are stated to be 400-500 years old, from

Government land adjacent to the land belonging to the aforesaid Joy. The Village

officer who generated a report that the trees in question were standing on the

property of Joy and the Section Forest Officer who recommended the grant of

cutting permit are also accused in this case. The case diary which has been made

available to my perusal indicates that the prosecution has collected sufficient

material which shows that the petitioner was not acting bonafide in the matter. The

material collected by the prosecution tends to indicate that the petitioner was

present at the time when the logs were loaded onto the truck. There is also material

that suggests that the petitioner had a role distinct from his role as an officer who

bonafide granted permission to cut and remove the trees. Most pertinently there is

material collected by the prosecution which indicates that the timber after being cut

into different sizes was stored in a building belonging to the mother of the

petitioner/1st accused. Though the petitioner has a case that the said building was

bonafide let out on rent to the person who had purchased the logs, this appears to

be too much of a coincidence that cannot be ignored at this stage. Though several

decisions were cited by the learned Additional Director General of Prosecution to

contend that such offences must be viewed seriously and that the petitioner is not

entitled to anticipatory bail, I do not propose to burden this order with reference to

them as I am not inclined to grant anticipatory bail to the petitioner, having regard

to the facts. Though the learned Additional Director General of Prosecution has also

placed a copy of the preliminary report prepared by the Vigilance and Anti-

Corruption Bureau against the petitioner it would not be proper or appropriate to

refer to the same while deciding this matter. However, it must be observed that this

is a case where, prima facie, the materials indicate that the petitioner misused his

official position for personal benefit.

This bail application will, therefore, stand dismissed.

Sd/-

GOPINATH P.

JUDGE AMG