Kerala High Court
Namshad P vs State Of Kerala on 27 May, 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
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
BAIL APPL. NO. 3903 OF 2024
CRIME NO.10/2024 OF KARUVARAKUNDU FOREST STATION OFFICE,
MALAPPURAM
PETITIONERS/ACCUSED:
1 ABDURAHMAN,
AGED 36 YEARS
S/O. MUHAMMED,
MULLAPALLI HOUSE, PANTHRA,
KERALA ESTATE POST, MALAPPURAM, PIN - 676525
2 JAMSHEER BABU,
AGED 38 YEARS
S/O. ALAVI,
KUNNUMAMAL HOUSE, KERALA ESTATE POST,
MALAPPURAM, PIN - 676525
BY ADV VINOD VALLIKAPPAN
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR (FORESTS),
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY ADV. SMT SEETHA S, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.05.2024, ALONG WITH BAIL APPL.NO.3965/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos.3903 & 3965/2024
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
BAIL APPL. NO. 3965 OF 2024
CRIME NO.10/2024 OF KARUVARAKUNDU FOREST STATION OFFICE,
MALAPPURAM
PETITIONER/ACCUSED:
NAMSHAD P.,
AGED 30 YEARS
S/O. ISMAYIL,
PALLIYIL THODIKA HOUSE,
KANNATH, KERALA ESTATE MALAPPURAM, PIN - 676523
BY ADV VINOD VALLIKAPPAN
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY THE SPECIAL PROSECUTOR, (FORESTS )
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY ADV. NEEMA.T.V,PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.05.2024, ALONG WITH BAIL APPL.NO.3903/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos.3903 & 3965/2024
-:3:-
Dated this the 27th day of May, 2024
COMMON ORDER
The applications are filed under Section 438 of
the Code of Criminal Procedure, 1973, for orders of
pre-arrest bail.
2. The petitioners are accused Nos.5 to 7 in
O.R.No.10/2024 of the Karuvarakkunnu Forest Station
Office, Malappuram, which is registered against the
accused (seven in number) for allegedly committing
the offences punishable under Sections 2(16), 2(20), 9,
39, 50, 51 & 57 of the Wild Life (Protection) Act 1972
Amendment 2022 ( in short, 'Act')
2. The crux of the prosecution case is that: on
20.04.2024, the accused Nos.1, 2 & 6 with other
persons had shot a Gaur with a country gun in a
private plantation under the Nilambur South Forest
Division, under the jurisdiction of the Karuvarakkundu
B.A.Nos.3903 & 3965/2024
Forest Station, in Kalikavu Range, belonging to the
Kerala Estate Village and adjacent to the Silent Valley
Wildlife Sanctuary. The accused cooked the meat and
ate it, and the remaining meat was kept in a
refrigerator for marketing. In a search conducted by
the investigating team, the remaining meat was
recovered on 20.04.2024 from the house of 'Subair',
who is absconding. The accused Nos.1 to 4 were
arrested. During their interrogation, they confessed
that the accused Nos.5 to 7 were also present to hunt
the animal, eat the meat, and attempted to market the
meat. Thus, the accused have committed the above
offences.
4. Heard; Sri. Vinod Vallikappan, the learned
counsel appearing for the petitioners and Smt. Seetha
S., the learned Senior Public Prosecutor.
5. The learned counsel for the petitioners
vehemently argued that the petitioners have been
B.A.Nos.3903 & 3965/2024
falsely implicated in the crime on the alleged
confession statements given by the accused Nos.1 to 4.
There is no other material to substantiate the
petitioners' involvement in the crime. The so called
confession made the accused Nos.1 to 4 is inadmissible
in evidence, in view of the law laid down by this Court
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 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, 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
B.A.Nos.3903 & 3965/2024
criminal antecedents. The petitioners are ready to
abide by any stringent conditions that may be imposed
by this Court. They are also willing to co-operate with
the investigation.
6. The learned Public Prosecutor seriously
opposed the application. The Investigating Officer has
also filed a bail objection report. The learned 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 petitioners is untenable. In
B.A.Nos.3903 & 3965/2024
addition to the above contention, he also submitted
that there are other incriminating materials. 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, it is
evident that prima-facie the only material available on
record to show the involvement of the petitioners in
the crime is the alleged confession statement made by
the accused Nos.1 to 4. On the basis of the said
confession that the petitioners have been arraigned as
accused 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
B.A.Nos.3903 & 3965/2024
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
B.A.Nos.3903 & 3965/2024
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. Admittedly, in the instant case, it is solely on
the basis of the confession made by the accused Nos.1
to 4 that the petitioners 5 to 7 have been made accused
in the case.
11. 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 by the accused Nos.1 to 4, I am
prima-facie of 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
B.A.Nos.3903 & 3965/2024
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:-
(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;
B.A.Nos.3903 & 3965/2024
(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 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
B.A.Nos.3903 & 3965/2024
powers of the Investigating Officer to investigate
the matter and, if necessary, to effect recoveries
on the information, if any, given by the
petitioners even while the petitioners are 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
DST/27.05.24 //True copy//
P.A. To Judge
