Geevarghese P.G. @ Kutty v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 ``` ## **`BAIL APPL. NO. 4098 OF 2024`** ``` OCCURRENCE REPORT NO.03/2024 OF KODANAD FOREST RANGE ``` ``` OFFICE, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` GEEVARGHESE P.G @ KUTTY, AGED 64 YEARS S/O GEEVARGHESE, PANATTU HOUSE, ARUVAPPARA P.O, MECKAPPALA, PIN - 683545 ``` ``` BY ADV AJEESH M. UMMER ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV. SRI C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the 5[th] accused in O. R. No.03/2024 of Kodanad Forest Range Office, Ernakulam which is registered against five accused persons for allegedly committing the offences punishable under Sections 2 (14, 16, 20, 25B, 33, 35, 36), 9, 10, 39(1)(2) (3), 50, 51 and 57 of the Wild Life Protection Act, 1972 (Amendment Act, 2022). 3. The gist of the prosecution case is that: on 30.03.2024, at around 1.00 hours, while the Forest Officials were conducting night patrolling duty, they arrested the 1[st] accused, who was found passing through the Kottappara Reserve Forest with a loaded unlicensed country made gun, ammunitions and meat of ``` 3 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` sambar deer. During his interrogation, he confessed that he hunted the deer along with the accused Nos.2 and 3 and the gun was given to him by the 4[th] accused. Consequently, the accused Nos.2 and 3 were arrested. During the interrogation of the 2[nd] accused, he allegedly confessed that the ammunitions were provided by the 5[th] accused. Thus, the accused have committed the above offences. 4. Heard; Sri. Ajeesh M. Ummer, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The petitioner has been made an accused solely on the basis of the alleged confession statement made by the 2[nd] accused. The so called confession statement is inadmissible in evidence, in view of the law ``` 4 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 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 confession of the 2[nd] 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. Hence, the application may be allowed. ``` 5 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the 2[nd] accused had clearly said that it was the petitioner who provided ammunitions to the 1[st] accused which was used in the country made gun. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the investigation. Hence, the application may be dismissed. 7. On a perusal of the materials on record, it can be gathered that the specific allegation of hunting the sambar deer with the country made gun is attributed against the accused Nos.1 to 3. The 4[th] accused was implicated on the allegation that he provided the country made gun to the 1[st] accused and the petitioner has been implicated, on the basis of the confession of the 2[nd] accused, that he provided the ammunitions to the 1[st] accused. ``` 6 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` ## 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; (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:- ``` 7 ``` ``` BAIL APPL. NO.4098 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 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 ``` 8 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 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 (d) to receive and record evidence. (9) Any evidence recorded under clause (d) of subsection (8) shall be admissible in any subsequent trial ``` 9 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 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** ``` 10 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` **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 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) ``` 11 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 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 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.** ``` 12 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` **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, 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 Section 50 of the Forest Act. Therefore, as rightly observed in **Prakashan’s case,** any confession recorded by any other officer, other than the above three class of officers, is a nullity and and have no sanctity in the eyes of law. ``` 13 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 13. In the instant case, the petitioner has been implicated solely on the basis of the confession statement allegedly made by the 2[nd] accused. There is no other material to connect the petitioner with the above 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 2[nd] 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 ``` 14 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 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 10 days from today; - ii. In the event of the petitioner's arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; - iii. The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer; - iv. The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or procure to any person acquainted with the facts of the case so as to ``` 15 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - v. The petitioner shall surrender his passport before the jurisdictional court concerned within - a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; - 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 ``` 16 ``` ``` BAIL APPL. NO.4098 OF 2024 ``` 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. The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. **Sd/C.S. DIAS JUDGE** BR ``` 17 ``` ## **`BAIL APPL. NO.4098 OF 2024`** ## **`APPENDIX OF BAIL APPL. 4098/2024`** ``` PETITIONER’S ANNEXURES Annexure 1THE PETITIONER HAS RECEIVED A NOTICE U/S 41A CRPC UNDATED ON 11.05.2024 Annexure 2A TRUE COPY OF THE OCCURRENCE REPORT IN OR 3/24 OF KODANAD FOREST RANGE DATED 30.03.2024 Annexure 3A MEDICAL CERTIFICATE OF THE PETITIONER DATED 11.05.2024 SUGGESTED HIM TO UNDERGO TREADMILL TEST AND CONSULT THE DOCTOR ON 15.05.2024 ``` ``` RESPONDENT’S ANNEXURES: NIL ```