Joji John v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **BAIL APPL. NO. 7639 OF 2021** Crime No.533/2020 of Vellathooval Police Station ## **PETITIONER/ACCUSED:** JOJI JOHN AGED 45 YEARS, S/O. LATE C U JOHN, JOY HOME THEKKADY P.O, KUMILY, PIN 685 509 PRESENTLY WORKING AS RANGE FOREST OFFICER PONKUNNAM SOCIAL FORESTRY RANGE, KANAKAPALAM, ERUMELI, PIN 686 509. BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION ## **OTHER PRESENT:** SRI. C.K. SURESH (SR.PP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- B.A. No.7639/2021 ## **O R D E R** The petitioner is the accused in Crime No.533/2020 of Vellathooval Police Station alleging commission of offences under Sections 120B and 379 of the Indian Penal Code and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984. 2. The allegation against the petitioner who is the 1[st] accused in Crime No.533/2021 is that he along with the other accused in the case had in connivance with each other accused and in violation of the provisions of law permitted the cutting and removal of valuable trees belonging to the Government under the guise of granting permission to a landowner who had obtained a _'patta'_ from the Government for agricultural purposes, to cut and remove certain trees standing on the land assigned for agriculture purposes. The petitioner was, at the relevant time, working as Forest Range Officer, Adimaly. It is alleged that the petitioner entered into a conspiracy with the 2[nd] accused who is a Field Staff of Konnathady Village office and the 3[rd] accused who is Section Forest Officer, Mukkudam and approached one Joy and generated reports that suggest that there were 8 teak trees standing in the property assigned to the aforesaid Joy and that these teak trees had a girth less than 19 inches. This was done, allegedly, after obtaining the signature of the aforesaid Joy on blank papers. After creating documents as above including a report from the 2[nd] accused indicating that the trees in question were standing in the property assigned to the aforesaid Joy, the petitioner and other accused facilitated the cutting and removal of 6 teak trees (some of which are stated to be 100 years of old) standing on the Government _puramboke_ land adjoining the land assigned to -3- B.A. No.7639/2021 the aforesaid Joy. Apart from the above 6 teak trees one other teak tree having 446 c.m girth and length of 30 meters was cut and the same was stored in the property of the aforesaid Joy. 3. Sri. Suman Chakravarthy, the learned counsel for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the petitioner had not committed any offence and had only discharged his duties in accordance with the law. It is submitted that the petitioner had relied on AnnexureB certificate of the Village Officer where it had been reported that the trees in question were standing on the property assigned to the aforesaid Joy. It is submitted that the petitioner thereafter forwarded the application for a report to the Section Forest Officer, Mukkudam Forest Station who had reported, that after inspection, the trees in question can be cut and removed. He referred to AnnexureC in this regard. It is submitted that it is only thereafter that the petitioner gave Annexure-D permission dated 27-03-2020 which was in _bona fide_ discharge of his official duties as authorised officer under the provisions of Kerala Promotion of Tree Growth in Non-Forest areas Act, 2005. It is submitted that in the _'patta'_ issued to the aforesaid Joy no trees were reserved to the Government and that this is not the first time that permission was being granted to cut and remove trees standing on such _'patta'_ land. It is submitted that after the cutting permission was issued, permission for a transit pass was made by the landowner which was also verified by the petitioner through his subordinate officer. Reference is made to Annexure-E report of the Section Forest Officer, Mukkudam. It is submitted that only after obtaining Annexure-E report did the petitioner issue the transit pass (Annexure-F). B.A. No.7639/2021 -4- It is also submitted that on receiving information regarding the possible cutting of trees from Government land the petitioner issued Annexure-G communication informing the landowner that the cutting permit is cancelled. It is submitted that Annexure-F report was also sent to the Tahsildar, Idukki. It is submitted that a case was also registered against the aforesaid Joy and that the timber which had been cut and removed was also seized from the person to whom the aforesaid Joy had sold the timber. Reference is also made to circulars/orders namely Annexure-J & K to point out that the petitioner had acted only in accordance with law and the provisions of the aforesaid circulars. It is submitted that the cancellation of Annexures J & K orders on 02-02-2021 is of no consequence as the cutting permission was issued in accordance with the circulars in force at the relevant time. It is submitted that there is no bar in granting cutting permit in respect of trees standing in the _'patta'_ land when trees are not reserved to the Government while issuing the ‘ _patta’_ . It is submitted that the entire career of the petitioner will be destroyed if the petitioner is not granted anticipatory bail. 4. Sri. Grashious Kuriakose, the learned Senior Advocate and Additional Director General of Prosecution and Sri. C.K. Suresh, learned Senior Public Prosecutor would vehemently oppose the grant of bail. It is submitted that after the issuance of Annexure-K Government order on 24-10-2020, the petitioner misused his official position and granted cutting permits to the aforesaid Joy making it appear that the same was a _bona fide_ action by the petitioner. It is submitted that the petitioner arranged for a person named Baiju who was working as a Manager for the family of the petitioner for many years to meet one Sanal who is a timber B.A. No.7639/2021 -5- merchant and the aforesaid Baiju and Sanal together met with the landowner (after meeting the petitioner and seeing the teak trees to be cut) and entered into an agreement with him to purchase the trees for a total sum of Rs.1,80,000/-. An agreement was made between the Joy and the aforesaid Baiju and one of the witnesses was the aforesaid Sanal. It is submitted that the signature of the landowner was obtained on blank papers and certain documents such as land tax receipts were also obtained from him. It is submitted that thereafter, applications were prepared in the blank paper obtained from the landowner and reports mentioned above were obtained from the Village Field Staff and Section Forest Officer, Mukkudam and a cutting permit was issued by the petitioner, knowing fully well that the trees to be cut were trees standing on Government land. It is submitted that on 27-03-2020 based on the cutting permit/pass, the trees in question were cut. It is submitted that 6 trees were cut from the Government land 2 trees were cut from the land belonging to the Joy and on 21-11-2020 after cutting the same into logs and pieces of different sizes the same was transported. It is submitted that the prosecution has received reliable evidence to show that the petitioner was present at the time when the cut logs were loaded onto a lorry and that the workers for the same were arranged by the petitioner. 5. It is submitted that on 21-11-2020 after cutting down the trees they were transported in 6 loads in a pick-up jeep to a place near Manguth Bridge where in the presence of accused Nos. 1 and 3 they were loaded onto a truck as one load. It is submitted that the workers who were engaged in the work, when questioned, revealed that they were arranged by the 1[st] accused stating that the timber in B.A. No.7639/2021 -6- question was purchased by the 1[st] accused from the aforesaid Joy Thomas (land owner) for the purpose of a resort belonging to the wife of the 1[st] accused. It is also alleged that after the timer was cut and loaded onto the truck, the 1[st] accused/petitioner accompanied the load in another vehicle. It is pointed out that after the timer was cut into different sizes the same was stored in a building bearing No.492 in the 11[th] ward of Kumily Grama Panchayat which belongs to the mother of the petitioner/1[st] accused. It is submitted that the petitioner is the kingpin in the entire issue and that the grant of bail to the other accused is no ground to grant bail to the petitioner. 6. The learned counsel for the petitioner cited _**Joginder Kumar v. State of U.P and others;** 1994 KHC 189_ to contend that indiscriminate arrest by the police should be curbed and life and liberty of the individual must be given due weight. He relied on _**Siddharth v. State of U.P and another;** 2021 (5) KHC 353_ to contend that where the accused has cooperated with the investigation in every manner there is no compulsion on the investigating officer to arrest the accused. He relied on _**Thomas Philip and another v. Divisional Forest officer;** 2018 (4) KLT 678_ & _**Ouseph Kuriakose v. Divisional Forest Officer and another;** 2020 KHC 5604_ to contend that the cutting of trees standing in non-forest lands can be permitted in terms of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and the restrictions earlier imposed on the Kerala Preservation of Trees Act, 1986 has been considerably relaxed by the provisions of the latter Act. He relied on _**Augustine Mathew and another v. State of Kerala;** 2009 (3) KHC 179_ to contend that even under the provisions of the B.A. No.7639/2021 -7- Preservation of Trees Act 1986 there is no prohibition in cutting and removing teak trees standing on residential lands having an extent of less than one hectre and that there is no prohibition in the Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules 1995 (Kerala), in cutting and removing of trees from assigned lands in the absence of any reservation in the _patta_ . He relied on _**Arnesh Kumar v. State of Bihar and another;** (2014) 8 SCC 273_ to contend that the arrest and detention of the petitioner is not necessary in the facts and circumstances of the case and submitted that the arrest of the petitioner would be in violation of the guidelines contained in that judgment. He relied on _**Sukumaran and others v. State of Kerala;** 2010 (1) KHC 508_ to contend that an owner of a non - forest land, if it is not within the notified area as provided under sub-S.3 of S.6 of the Act, is entitled to cut, uproot or transport all trees except sandalwood trees. He relied on _**Susheela Agarwal v. State (NCT) of Delhi and another;** (2020) 5 SCC 1_ to contend that the power to grant anticipatory bail is wide and it should not be restricted in any manner. He relied on the judgment of this court in _**Gopalakrishnan @ Dileep v. State of Kerala;** 2022 (1) KLT 774_ to contend that where, _prima facie,_ the offences alleged are not made out, the petitioner is entitled to be released on bail. 7. I have considered the contentions raised. Though the principles laid down in the decisions relied on by the learned counsel for the petitioner are unexceptionable I am afraid that the decisions do not aid the petitioner in the facts and circumstances of the present case. The facts of the present case show that while on paper it appears that the petitioner had acted bonafide and had only exercised B.A. No.7639/2021 -8- his powers in terms of the law, the fact remains that the allegation against the petitioner is that he had, for his personal benefit, managed the cutting and removal of valuable trees, some of which are stated to be 400-500 years old, from Government land adjacent to the land belonging to the aforesaid Joy. The Village officer who generated a report that the trees in question were standing on the property of Joy and the Section Forest Officer who recommended the grant of cutting permit are also accused in this case. The case diary which has been made available to my perusal indicates that the prosecution has collected sufficient material which shows that the petitioner was not acting bonafide in the matter. The material collected by the prosecution tends to indicate that the petitioner was present at the time when the logs were loaded onto the truck. There is also material that suggests that the petitioner had a role distinct from his role as an officer who bonafide granted permission to cut and remove the trees. Most pertinently there is material collected by the prosecution which indicates that the timber after being cut into different sizes was stored in a building belonging to the mother of the petitioner/1[st] accused. Though the petitioner has a case that the said building was bonafide let out on rent to the person who had purchased the logs, this appears to be too much of a coincidence that cannot be ignored at this stage. Though several decisions were cited by the learned Additional Director General of Prosecution to contend that such offences must be viewed seriously and that the petitioner is not entitled to anticipatory bail, I do not propose to burden this order with reference to them as I am not inclined to grant anticipatory bail to the petitioner, having regard to the facts. Though the learned Additional Director General of Prosecution has also B.A. No.7639/2021 -9- placed a copy of the preliminary report prepared by the Vigilance and AntiCorruption Bureau against the petitioner it would not be proper or appropriate to refer to the same while deciding this matter. However, it must be observed that this is a case where, _prima facie,_ the materials indicate that the petitioner misused his official position for personal benefit. This bail application will, therefore, stand dismissed. Sd/- **GOPINATH P. JUDGE** AMG