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. 655 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. 655 OF 2024
CRIME NO.12/2023 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/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
SPL.P.P SRI.NAGRAJ NARAYANAN,
S
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. 655 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.12/2023 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 sandalwood 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
BAIL APPL. NO. 655 OF 2024
accused have 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
BAIL APPL. NO. 655 OF 2024
by the prosecution, against the petitioner, 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 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
BAIL APPL. NO. 655 OF 2024
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 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:-
BAIL APPL. NO. 655 OF 2024
" 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 ,
(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
BAIL APPL. NO. 655 OF 2024
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
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
BAIL APPL. NO. 655 OF 2024
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
BAIL APPL. NO. 655 OF 2024
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
BAIL APPL. NO. 655 OF 2024
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
BAIL APPL. NO. 655 OF 2024
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
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
BAIL APPL. NO. 655 OF 2024
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) 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.
BAIL APPL. NO. 655 OF 2024
ii) In the event of the petitioner's 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 petitioner on bail on thim 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
BAIL APPL. NO. 655 OF 2024
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
BAIL APPL. NO. 655 OF 2024
APPENDIX OF BAIL APPL. 655/2024
PETITIONER ANNEXURES
Annexure-A1 TRUE COPY OF THE ALLEGED CONFESSION
STATEMENT DATED 14.11.2023 OF THE 1ST
Annexure-A2 TRUE COPY OF THE ALLEGED CONFESSION
STATEMENT DATED 23.11.2023 OF THE 1ST
Annexure-A3 TRUE COPY OF THE BAIL ORDER IN CMP
6720/2023 DATED 6.12.2023 OF THE JFCM
COURT, CHALAKUDY IN OR NO.12/2023
Annexure-A3(a) 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-A3(b) 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-A4 TRUE COPY OF THE ORDER DATED 8.01.2024
IN CRL.MC NO.1803/2023 OF THE SESSIONS
JUDGE, THRISSUR
