Kerala High Court

Unni @ P.G. Sreekumar 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. 7317 OF 2022
CRIME NO.4/2022 OF Poongode Forest Station Office, Thrissur
PETITIONERS/ACCUSED NOS.2 AND 3
    1     UNNI @ P.G. SREEKUMAR
          AGED 52 YEARS
          S/O. GOVINDAN, PUTHENPURAKKAL HOUSE,
          DESAMANGALAM, THRISSUR, PIN - 679532

    2    RAMANKUTTY
         AGED 58 YEARS
         S/O. KORAN, KIZHAKKEMADOM PADI, PALOOR P.O.,
         DESAMANGALAM, THRISSUR, PIN - 679532.

         BY ADVS.
         SRUTHY N. BHAT
         P.M.RAFIQ
         AJEESH K.SASI
         M.REVIKRISHNAN
         RAHUL SUNIL
         SRUTHY K.K
         NIKITA J. MENDEZ
         P.VIJAYA BHANU (SR.)



RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA,                PIN - 682031

         BY ADV PUBLIC PROSECUTOR


OTHER PRESENT:

         SPL.P.P SRI.NAGRAJ NARAYANAN,
         SR.P.P SRI.ARAVIND MATHEW,
         SR.P.P.SMT.NEEMA T.V.


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.02.2024,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 BAIL APPL. NO. 7317 OF 2022
                                  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 petitioners are the accused Nos. 2 and 3 in O.R

No.4/2022 of the Poongode Forest Range, Thrissur,

registered against the accused (three in number) for allegedly

committing the offences punishable under Sections 2(2) (16)

(20) (35) (36), 9 39(1)(b)(d) 50 and 51 (1) of the Wild Life

Protection Act. (in short, 'Act').

3. The crux of the prosecution case is that: the first

accused along with other persons had hunted and killed a

wild bear. During the interrogation of the first accused, he

confessed that the accused Nos.2 and 3 are also involved in

the crime. Thus, the accused have committed the above

offences.

4. Heard; Smt.Sruthy.N.Bhat, the learned counsel

appearing for the petitioners and Sri, Nagaraj Narayanan, the

learned Special Public Prosecutor.

BAIL APPL. NO. 7317 OF 2022

5. Smt.SruthyN.Bhat strenuously argued that the

petitioners have been falsely implicated in the crime. Other

than for the alleged confession statement of the first accused

there is nothing on record to connect the petitioners with the

crime. The so called confession statement 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], 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 petitioners,

based on the alleged confession of the first accused is a nullity

as held by this Court in Prakasan's case. He further

contended that the petitioners are the law abiding citizens and

have no criminal antecedents. The petitioners are ready to

abide by any stringent conditions that may be imposed by this BAIL APPL. NO. 7317 OF 2022

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 accused Nos.2 and 3 were implicated on the basis

of the confession made by the first accused and consequently

they were arrested. Therefore, the petitioners have been

implicated, on the alleged confession made by the first

accused.

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 BAIL APPL. NO. 7317 OF 2022

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 BAIL APPL. NO. 7317 OF 2022

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 BAIL APPL. NO. 7317 OF 2022

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 BAIL APPL. NO. 7317 OF 2022

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)

10. Almost on the same lines in the afore-cited two BAIL APPL. NO. 7317 OF 2022

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 BAIL APPL. NO. 7317 OF 2022

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 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 BAIL APPL. NO. 7317 OF 2022

and have no sanctity in the eyes of law.

12. Admittedly, in the instant case, the confession of the

first accused 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

petitioners in the crime.

13. Viewed in the above background and taking into

account the initial statement filed by the Investigating Officer

that the petitioners have been implicated on the strength of

the confession statement made by the first accused, I am

prima facie of the view that the petitioners have 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:-

BAIL APPL. NO. 7317 OF 2022

In the result, the application is allowed subject to the

following conditions:

i) The petitioners are directed to surrender before the

Investigating Officer within one week from today.

ii) In the event of the petitioners' arrest, the Investigating

Officer shall produce them before the jurisdictional court on

the date of surrender itself.

iii) On such production, the jurisdictional court shall

release the petitioners on bail on them 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 petitioners shall co-operate with the investigation

and make themselves available for interrogation as and when

directed by the Investigating Officer ;