Kerala High Court
Chandy @ Stanley vs State Of Kerala on 23 February, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
BAIL APPL. NO. 7408 OF 2023
CRIME NO.19/2023 OF Devikulam Forest Range Office, Idukki
PETITIONER:
CHANDY @ STANLEY,
AGED 53 YEARS
S/ O THOMAS, VAYALIL HOUSE, KACHARAPALAM,
RAJAKKAD, IDUKKI DISTRICT, PIN - 685566
BY ADV LATHEESH SEBASTIAN
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
OTHER PRESENT:
SPL PP SRI.NAGRAJ NARAYANAN
SR.P.P SRI.ARAVIND MATHEW
PP SMT.NIMA JACOB
THIS BAIL APPLICATION HAVING COME UP FOR
ADMISSION ON 23.02.2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
B.A No.7408 of 2023
2
ORDER
The application is filed under Section 438 of the
Code of Criminal Procedure, 1973, for an order of pre-
arrest bail.
2. The petitioner is the first accused in O.R
No.19/2023 of the Devikulam Forest Range, Idukki,
registered against the accused (three in number) for
allegedly committing the offences punishable under
Sections 2(16),2(35),2(36), 9, 39, 50 and 51 of the Wild
Life Protection Act,1972 (in short, 'Act').
3. The crux of the prosecution case is that: on
5.8.2023 at about 11.45 p.m, the forest officials heard a
gun shot in the forest area. Consequently, they arrested
the accused 2 and 3 from the above area. During their
interrogation, they confessed that the first
petitioner/first accused was also involved in the crime.
Thus, the accused have committed the above offences.
4. Heard; SriLatheesh Sebastian, the learned
counsel appearing for the petitioner and Sri, Nagaraj
Narayanan, the learned Special Public Prosecutor.
5. Sri.Latheesh Sebastian strenuously argued that
the petitioner has been falsely implicated in the crime.
Other than for the alleged confession statements of the
accused 2 and 3. there is nothing on record to connect
the petitioner with the crime. The so called confession
statements are 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],
Prakashan v. State of Kerala [2023 (1) KHC 536] and
Gopi v. State of Kerala [2024 KHC 18]. He also relied
on the provisions under Section 50 of the Act, Article
20(3) of the Constitution of India and Section 25(3) of
the Evidence Act, to fortify his contention that a
confession recorded by a Forest Officer cannot be used
in evidence. According to him, the whole case set up by
the prosecution, against the petitioner, based on the
alleged confession of the accused 2 and 3 is a nullity as
held by this Court in Prakasan's case. He further
contended that the petitioner is the law abiding citizen
and have no criminal antecedents. The petitioner is
ready to abide by any stringent condition that may be
imposed by this Court. They are also willing to co-
operate with the investigation.
6. The learned Special Public Prosecutor seriously
opposed the application. The Investigating Officer has
also filed a bail objection report.
7. The first accused was implicated on the basis of
the confession made by the accused 2 and 3 and
consequently he was arrested. Therefore, the petitioner
has been implicated, on the alleged confession made by
the accused 2 and 3.
8. Section 50 of the Wild Life Protection Act, reads
as follows:-
50. Power of entry, search, arrest and detention.--(1) Notwithstanding
anything contained in any other law for the time being in force, the
Director or any other officer authorised by him in this behalf 1 [or the
Management Authority or any officer authorised by the Management
Authority] or the Chief Wild Life Warden or the authorised officer or any
forest officer or any police officer not below the rank of a sub- inspector
2 [or any customs officer not below the rank of an inspector or any
officer of the coast guard not below the rank of an Assistant
Commandant], may, if he has reasonable grounds for believing that any
person has committed an offence against this Act,--
(a) require any such person to produce for inspection any captive
animal, wild animal, animal article, meat, trophy or 3 [trophy, uncured
trophy, specified plant or part or derivative thereof [or scheduled
specimen]] in his control, custody or possession, or any licence, permit
or other document granted to him or required to be kept by him under
the provisions of this Act;
(b) stop any vehicle or vessel in order to conduct search or inquiry or
enter upon and search any premises, land, vehicle or vessel, in the
occupation of such person, and open and search any baggage or other
things in his possession;
(c) seize any captive animal, wild animal, animal article, meat, trophy or
uncured trophy, or any specified plant or part or derivative thereof 1 [or
scheduled specimen], in respect of which an offence against this Act
appears to have been committed, in the possession of any person
together with any trap, tool, vehicle, vessel or weapon used for
committing any such offence and, unless he is satisfied that such
person will appear and answer any charge which may be preferred
against him, arrest him without warrant, anddetain him:
Provided that where a fisherman, residing within ten kilometres of a
sanctuary or National Park, inadvertently enters on a boat, not used for
commercial fishing, in the territorial waters in that sanctuary or National
Park, a fishing tackle or net on such boat shall not be seized.]
(3) It shall be lawful for any of the officers referred to in sub-section (1)
to stop and detainany person, whom he sees doing any act for which a
licence or permit is required under the provisions of this Act, for the
purposes of requiring such person to produce the licence or permit and
if such person fails to produce the licence or permit, as the case may
be, he may be arrested without warrant, unless he furnishes his name
and address, and otherwise satisfies the officer arresting him that he
will duly answer any summons or other proceedings which may be
taken against him.
[(3A) Any officer of a rank not inferior to that of an Assistant Director of
Wild Life Preservation or [an Assistant Conservator of Forests] who, or
whose subordinate, has seized any captive animal or wild animal under
clause (c) of sub-section (1) may give the same for custody on the
execution by any person of a bond for the production of such animal if
and when so required, before the Magistrate having jurisdiction to try
the offence on account of which the seizure has been made.]
(4) Any person detained, or things seized under the foregoing power,
shall forthwith be taken before a Magistrate to be dealt with according
to law 6 [under intimation to the Chief Wild Life Warden or the officer
authorised by him in this regard].
(5) Any person who, without reasonable cause, fails to produce
anything, which he is required to produce under this section, shall be
guilty of an offence against this Act.
[(6) Where any meat, uncured trophy, specified plant or part or
derivative thereof is seized under the provisions of this section, the
Assistant Director of Wild Life Preservation or any other officer of a
gazetted rank authorised by him in this behalf or the Chief Wild Life
Warden or the authorised officer may arrange for the disposal of the
same in such manner as may be prescribed.]
(7) Whenever any person is approached by any of the officers referred
to in sub-section (1) for assistance in the prevention or detection of an
offence against this Act, or in apprehending persons charged with the
violation of this Act, or for seizure in accordance with clause (c) of sub-
section (1), it shall be the duty of such person or persons to render such
assistance.
[(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 9 [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; (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.
9. While interpreting Section 72 of Forest Act,
1961, this Court in Luca Beltrami's case has held
thus:-
"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)
10. This Court in dealing with Section 50 of 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;
(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 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)
11. 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' s case 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
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)
12. 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 of
Wild Life Preservation or Assistant Conservator of
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 Act. Therefore, as rightly observed in
Prakashan's case, any confession recorded by any
other officer, other than the above class of officers, is a
nullity and and have no sanctity in the eyes of law.
13. Admittedly, in the instant case, the confession
of the accused 2 and 3 has not been recorded by the
above stated class of officers. There is also no other
incriminating materials placed before this Court to
establish the involvement of the petitioner in the crime.
14. Viewed in the above background and taking
into account the initial statement filed by the
Investigating Officer that the petitioner has been
implicated on the strength of the confession statement
made by the accused 2 and 3, I am prima facie of the
view that the petitioner has made out exceptional
grounds to 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:-
In the result, the application is allowed subject to
the following conditions:
i) The petitioner is directed to surrender before the
Investigating Officer within one week from today.
ii) In the event of the petitioner's arrest, the
Investigating Officer shall produce him before the
jurisdictional court on the date of surrender itself.
iii) On such production, the jurisdictional court
shall release the petitioner on bail on him executing a
bond for Rs.1,00,000/- (Rupees One Lakh only) each
with two solvent sureties for the like amount each, to
the satisfaction of the jurisdictional court;
iv) The petitioner shall co-operate with the
investigation and make himself available for
interrogation as and when directed by the Investigating
Officer ;
v). The petitioner shall not intimidate witnesses or
interfere with the investigation in any manner;
vi). The petitioner 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.
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 petitioner even while
the petitioner is 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) Needless to say, any observations made in this
order is only for the purpose of deciding the application
and the same shall not be construed as an expression
on the merits of the case to be decided by the Courts.
Sd/- C.S.DIAS, JUDGE
ma/26.02.2024
APPENDIX OF BAIL APPL. 7408/2023
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE REMAND APPLICATION OF
THE INVESTIGATING OFFICER OF THE CRIME
WHILE ARRESTING ACCUSED NUMBERS 2 AND 3
