Chandy @ Stanley v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** **BAIL APPL. NO. 7408 OF 2023** **CRIME NO.19/2023 OF Devikulam Forest Range Office, Idukki** **PETITIONER:** **CHANDY @ STANLEY, AGED 53 YEARS S/ O THOMAS, VAYALIL HOUSE, KACHARAPALAM, RAJAKKAD, IDUKKI DISTRICT, PIN - 685566** ## **BY ADV LATHEESH SEBASTIAN** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SPL PP SRI.NAGRAJ NARAYANAN SR.P.P SRI.ARAVIND MATHEW PP SMT.NIMA JACOB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A No.7408 of 2023** **2** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the first accused in O.R No.19/2023 of the Devikulam Forest Range, Idukki, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 2(16),2(35),2(36), 9, 39, 50 and 51 of the Wild Life Protection Act,1972 (in short, ‘Act’). 3. The crux of the prosecution case is that: on 5.8.2023 at about 11.45 p.m, the forest officials heard a gun shot in the forest area. Consequently, they arrested the accused 2 and 3 from the above area. During their interrogation, they confessed that the first petitioner/first accused was also involved in the crime. Thus, the accused have committed the above offences. **B.A No.7408 of 2023** **3** 4. Heard; SriLatheesh Sebastian, the learned counsel appearing for the petitioner and Sri, Nagaraj Narayanan, the learned Special Public Prosecutor. 5. Sri.Latheesh Sebastian strenuously argued that the petitioner has been falsely implicated in the crime. Other than for the alleged confession statements of the accused 2 and 3. there is nothing on record to connect the petitioner with the crime. The so called confession statements are 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 petitioner, based on the **B.A No.7408 of 2023** **4** alleged confession of the accused 2 and 3 is a nullity as held by this Court in **Prakasan’s case** . He further contended that the petitioner is the law abiding citizen and have no criminal antecedents. The petitioner is ready to abide by any stringent condition that may be imposed by this Court. They are also willing to cooperate 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 first accused was implicated on the basis of the confession made by the accused 2 and 3 and consequently he was arrested. Therefore, the petitioner has been implicated, on the alleged confession made by the accused 2 and 3. ## 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 **B.A No.7408 of 2023** **5** 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 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. **B.A No.7408 of 2023** **6** [(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 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 subsection (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. **B.A No.7408 of 2023** **7** 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 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 **B.A No.7408 of 2023** **8** 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 (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 **B.A No.7408 of 2023** **9** 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) 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 **B.A No.7408 of 2023** **10** ## 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 **B.A No.7408 of 2023** **11** 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 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 **B.A No.7408 of 2023** **12** 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 and have no sanctity in the eyes of law. 13. Admittedly, in the instant case, the confession of the accused 2 and 3 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 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 accused 2 and 3, 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** **B.A No.7408 of 2023** **13** **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. 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 **B.A No.7408 of 2023** **14** 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 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].** **B.A No.7408 of 2023** **15** (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 **B.A No.7408 of 2023** **16** ## **APPENDIX OF BAIL APPL. 7408/2023** **PETITIONER ANNEXURES** **Annexure 1** **TRUE COPY OF THE REMAND APPLICATION OF THE INVESTIGATING OFFICER OF THE CRIME WHILE ARRESTING ACCUSED NUMBERS 2 AND 3**