Kerala High Court

H.A.Siddiq vs State Of Kerala on 27 March, 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
    WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                   BAIL APPL. NO. 1744 OF 2024
CRIME NO.12/2023 OF MUPLIYAM FOREST STATION, THRISSUR

AGAINST THE ORDER DATED 08.01.2024 IN CRMC NO.1803 OF 2023 OF
DISTRICT COURT & SESSIONS COURT,THRISSUR
PETITIONERS/ACCUSED 3 & 4:

    1     H.A.SIDDIQ,
          AGED 40 YEARS, S/O.ABOOBAKER,
          HAINTHOOR HOUSE,
          MURIKKINGAL P.O.KODALI,
          THRISSUR DISTRICT, PIN-680 699.

    2     ANEESH,
          AGED 38 YEARS, S/O. AYYAPPAN,
          CHENGADU HOUSE,
          KUTTIKADU DESOM, PARIYARAM VILLAGE,
          CHALAKKUDY, THRISSUR DISTRICT, PIN-680 721.

          BY ADVS.
          T.K.SANDEEP
          SWETHA R.


RESPONDENT/COMPLAINANT/STATE:

          STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, PIN-682 031.

          SMT.SEETHA S., SENIOR PUBLIC PROSECUTOR

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION          ON
27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO.1744 OF 2024
                                -2-




                          C.S. DIAS, J.
       ------------------------------------------------------
                    B.A. No.1744 of 2024
        -----------------------------------------------------
         Dated this the 27th day of March, 2024

                         ORDER

The application is filed under Section 438 of

the Code of Criminal Procedure, 1973, for an order

of prearrest bail.

2. The petitioners are accused Nos.3 and 4 in

O.R No.12/2023 of the Mupliyam Forest Station in

Thrissur District, registered against the accused

(four in number) 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 BAIL APPL. NO.1744 OF 2024

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 other accused

are also involved in the crime. Thus, the accused

have committed the above offences.

4. Heard; Sri. T.K. Sandeep, the learned

counsel appearing for the petitioners and

Smt.Seetha S., the learned Senior Public

Prosecutor.

5. Sri. T.K. Sandeep 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 BAIL APPL. NO.1744 OF 2024

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 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 citizen and have no criminal

antecedents. The petitioners are ready to abide by

any stringent condition that may be imposed by this

Court. By Annexure II order, this Court has granted

the second accused an order of pre-arrest bail. The

petitioners are entitled to an order of pre-arrest BAIL APPL. NO.1744 OF 2024

bail. They are also willing to co-operate with the

investigation. Hence, the application may be

allowed.

6. The learned Senior Public Prosecutor

seriously opposed the application. She 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. She contended that the

arguments of the learned counsel for the petitioners

is untenable. In addition to the above contention,

she submitted that the petitioners are the persons BAIL APPL. NO.1744 OF 2024

with criminal antecedents and there are

incriminating materials to show the involvement of

the petitioners. The petitioners' custodial

interrogation is necessary and recovery is to be

effected. If the petitioners are 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 petitioners were also involved in

cutting the tree. Consequently, the petitioners were

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 BAIL APPL. NO.1744 OF 2024

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:-

BAIL APPL. NO.1744 OF 2024

"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

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 BAIL APPL. NO.1744 OF 2024

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 BAIL APPL. NO.1744 OF 2024

(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, subsection (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 BAIL APPL. NO.1744 OF 2024

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 BAIL APPL. NO.1744 OF 2024

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 BAIL APPL. NO.1744 OF 2024

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 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 BAIL APPL. NO.1744 OF 2024

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 officer. There is also no other

incriminating materials placed before this Court to

establish the involvement of the petitioners in the

crime.

14. 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 BAIL APPL. NO.1744 OF 2024

[(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 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;

BAIL APPL. NO.1744 OF 2024

iv) The petitioners shall co-operate with the

investigation and make themselves available for

interrogation as and when directed by the

Investigating Officer ;

v). The petitioners shall not intimidate

witnesses or interfere with the investigation in any

manner;

vi). The petitioners 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