Kerala High Court
Manu V.M vs State Of Kerala on 23 February, 2024
Author: C.S.Dias
Bench: C.S.Dias
BAIL APPL. NO. 626 OF 2024
1
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. 626 OF 2024
CRIME NO.11/2023 OF Mupliyam Forest Station, Thrissur
PETITIONER/SECOND ACCUSED:
MANU V.M.,
AGED 33 YEARS
S/O. MICHEL, VADAPPURATH HOUSE, GOTHURUTHE P.O.,
PARAVOOR, ERNAKULAM, PIN - 683516
BY ADVS.
P.K.IBRAHIM
K.P.AMBIKA
ZEENATH P.K.
JABEENA K.M.
ANAZ BIN IBRAHIM
RESPONDENT/SECOND ACCUSED:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
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. 626 OF 2024
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 second accused in O.R
No.11/2023 of the Mupliyam Forest Station in
Vellikulangara Forest Range in Chalakkudy Division,
Thrissur District, registered against the accused for
allegedly committing the offences punishable under
Sections 47G and 47H of the Kerala Forest Act, 1961 (in
short, 'Act').
3. The crux of the prosecution case is that: the
accused had trespassed into the Kodassery notified
reserve forest and cut and removed a sandal tree worth
Rs.7,000/- standing near the Nayattugund area and
caused loss to the exchequer. The first accused was
arrested on 31.10.2023 from his residence. During his
interrogation, he revealed that the second accused was
also involved in the crime. Thus, the accused have
BAIL APPL. NO. 626 OF 2024
committed the above offences.
4. Heard; Sri. P.K.Ibrahim, the learned counsel
appearing for the petitioner and Sri.Nagaraj Narayanan,
the learned Special Public Prosecutor.
5. Sri. P.K.Ibrahim strenuously argued that the
petitioner has 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
petitioner 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 72 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
BAIL APPL. NO. 626 OF 2024
confession of the first accused is a nullity as held by this
Court in Prakasan's case. He further contended that the
petitioner is the law abiding citizen and has no criminal
antecedents. The petitioner is ready to abide by any
stringent condition that may be imposed by this Court.
He is 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. The learned Special
Public Prosecutor placed reliance on the decisions of the
Honourable Supreme Court in Badku Joti Savant v
State of Mysore [ AIR 1966 SC 1746] Moti Lal v.
Central Bureau of Investigation [2001 KHC 2250] and
the decisions of this Court in Forest Range Officer v.
Aboobacker[1989 KHC 201] and Kunhali and others v.
Forest Range Officer and another [2012 KHC 231], to
canvass the position that the confession recorded by the
forest officer is admissible in evidence. He contended
that the arguments of the learned counsel for the
petitioner is untenable. In addition to the above
BAIL APPL. NO. 626 OF 2024
contention, he also submitted that there are other
incriminating materials to show the involvement of the
petitioner. The petitioner's custodial interrogation is
necessary and recovery is to be effected. If the petitioner
is granted an order of pre-arrest bail, it would hamper
with the investigation. Hence, the application may be
dismissed.
7. From the materials placed on record, the gist of
the prosecution allegation is that, the first accused who
had allegedly cut and removed the sandal tree had
confessed to the Investigating Officer that the second
accused/petitioner was also involved in cutting the tree.
Consequently, the petitioner was also implicated in the
crime.
8. Section 72 of the Kerala Forest Act, 1961 reads
as follows:-
" 72. Investing Forest Officers with powers. - The Government
may invest any Forest Officer not below the rank of an Assistant
Conservation of Forests with all or any of the following powers, and may
withdraw the same:-
(a) power to enter upon any land and to survey, demarcate and make
a map of the same ,
BAIL APPL. NO. 626 OF 2024
(b) powers of a Forest Settlement Officer;
(c) powers of a Civil Court to compel the attendance of witnesses and
the production of documents ;
(d) power to hold inquiries into forest offences and, in the course of
such inquiries, to receive and record evidence and to issue search
warrants which may be executed in the manner provided by the
Code of Criminal Procedure, 1898;
(e) power to accept compensation for forest offences under section 68
of this Act
Any evidence recorded under Clause (D) of this Section shall be
admissible in any subsequent trial of the alleged offender before a
Magistrate ; Provided that it has been taken in the presence of the
accused person and recorded in the manner provided by the Code
Of Criminal Procedure, 1898."
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 an analogous
BAIL APPL. NO. 626 OF 2024
provision to Section 72 of the Act, namely 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--
BAIL APPL. NO. 626 OF 2024
(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
BAIL APPL. NO. 626 OF 2024
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
BAIL APPL. NO. 626 OF 2024
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 Conservator
of Forests does not have the power to do any act
BAIL APPL. NO. 626 OF 2024
prescribed under Section 72 of the Forest Act.
Therefore, as rightly observed in Prakashan's case, any
confession recorded by any other officer, other than the
above officer is a nullity and and have no sanctity in the
eyes of law.
13. Admittedly, in the instant case, the confession of
the first accused has not been recorded by the above
stated officer. 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 first
accused, 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)
BAIL APPL. NO. 626 OF 2024
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 ;
BAIL APPL. NO. 626 OF 2024
(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
BAIL APPL. NO. 626 OF 2024
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
BAIL APPL. NO. 626 OF 2024
APPENDIX OF BAIL APPL. 626/2024
PETITIONER ANNEXURES
Annexure-A1 TRUE COPY OF THE STATEMENT OF THE 1ST
ACCUSED MADE BEFORE THE JFCM COURT,
Annexure-A2 TRUE COPY OF THE ALLEGED CONFESSION
STATEMENT DATED 14.11.2023 OF THE 1ST
Annexure-A3 TRUE COPY OF THE ALLEGED CONFESSION
STATEMENT DATED 23.11.2023 OF THE 1ST
Annexure-A4 TRUE COPY OF THE APPLICATION DATED
24.11.2023 FILED SEEKING THE CUSTODY OF
THE 1ST ACCUSED TO FOREST DEPARTMENT IN
Annexure-A5 TRUE COPY OF THE CONFESSION STATEMENT
ALLEGEDLY MADE BY THE 1ST ACCUSED ON
24.11.2023
Annexure-A6 TRUE COPY OF THE BAIL ORDER DATED
15.12.2023 IN CMP 6964/2023 OF THE JFCM
COURT, CHALAKUDY IN OR NO.11/2023
Annexure-A6(a) TRUE COPY OF THE BAIL ORDER DATED
06.12.2023 IN CMP 6720/2023 OF THE JFCM
COURT, CHALAKUDY IN OR NO.12/2023
Annexure-A6(b) TRUE COPY OF THE BAIL ORDER DATED
15.12.2023 IN CMP 6966/2023 OF THE JFCM
COURT, CHALAKUDY IN OR NO.10/2023
Annexure-A7 TRUE COPY OF THE ORDER DATED 19.01.2024
IN CRL.MC NO.1879/2023 OF THE SESSIONS
JUDGE, THRISSUR
