Kunjumon Thomas, M.T Abraham and Siju Thomas v. State of Kerala and Addl. R2 Principal Secretary, Department of Revenue, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 28[TH] DAY OF MAY 2021 / 7TH JYAISHTA, 1943 BAIL APPL. NO. 5580 OF 2020** **CRIME NO.6/2020 OF Karikulam Forest Station Office, Pathanamthitta** ## **PETITIONER/S:** 1 KUNJUMON THOMAS AGED 60 YEARS MURIYAMKORIL HOUSE, CHETHACKAL RANNY, PATHANAMTHITTA, PIN - 689672 2 M.T ABRAHAM AGED 56 YEARS MARIYAMKORIL, NEERATTUKADAVU, CHETHACKAL, RANNI, PATHANAMTHITTA 3 SIJU THOMAS AGED 28 YEARS MURIYAMKORIL HOUSE, CHETHACKAL RANNY, PATHANAMTHITTA BY ADV K.R.VINOD ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN – 682031. BA 5580/2020 2 2 ADDL.R2 PRINCIPAL SECRETARY AGED 50 YEARS DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA, SECRETARIATE, THIRUVANANTHAPURAM, PIN -695001. IS IMPLEADED AS PER THE ORDER DATED 23.2.2021 IN CRL.M.A.NO.1/2021. BY ADVS. PUBLIC PROSECUTOR SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 8.4.2021, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING: BA 5580/2020 3 ## O R D E R ## Dated, this the 28[th] day of May, 2021 ## [B. A. No. 5580 of 2020] Application for anticipatory bail under Section 438 Cr.P.C. 2. The applicants are accused numbers 1 to 3 in OR No. 6/2020 of Karikulam Forest Station, Ranni Range, initially registered as OR 01/2020 by the Forest Flying Squad. The applicants are accused of offences punishable under Section 2 (ii) (iv) of the Forest (Conservation) Act 1980 and Sections 27 (i) (e), (iii) and (iv) of the Kerala Forest Act 1961. 3. The prosecution case as made out in Annexure A1 Occurrence Report during the months of June-July, 2019 is BA 5580/2020 4 that the applicants had trespassed into the reserve forest comprised in Survey No. 781/1-1 of Chethackal village having an extent of 4.3440 Hectares and cut and removed 375 priceless trees disturbing and destroying the rich biodiversity and ecological significance in that forest land. It is also stated that the accused had very cunningly committed the offence with the active involvement of some forest and revenue officials to make it look like a very ordinary crime. 4. The applicants state that the allegation made against them is totally untrue and unsustainable. The disputed land having an extent of 4.3440 Hectares is comprised in Survey No. 781/1-1 of Chethackal village which is not a part of the forest reserve as claimed. In fact it is a 'Revenue Puramboke BA 5580/2020 5 land' and is a portion of the land having an extent of 1400 acres which was transferred to the revenue department, vide Annexure-A2 G.O (M.S) 169/17/Agri dated 13/04/1970. It is stated that the Government of Kerala had sanctioned disseveration of the aforesaid land for the purpose of resettlement of evictees from the Idukki project area. 200 acres have already been handed over to the revenue department and as per the notification, remaining 927.05 acres was to be made ready to be handed over by the end of July 1970 and the rest of the land was to be handed over by December 1970. The applicants state that the vide Annexure A3 letter dated 14/05/2020, the Divisional Forest Officer, Ranni addressed the District Collector, Pathanamthitta BA 5580/2020 6 admitting that the disputed land was included in the Reserve Forest till 1970 and thereafter view of Annexure A2 the land has been transferred to the revenue department under arable land scheme. Patta and land assignment documents have been issued in favour of several persons. The only land remaining as reserve forest is a former tea plantation having an extent of 251.69 Hectares. The said property has been properly marked with markers by the Forest authorities called as 'Jenda'. The land in possession of the applicants does not come within that demarcation. The DFO Ranni has also issued Annexure A4 letter on 11/05/2020 to the RDO, Tiruvalla and Annexure A5 letter dated 1/06/2020 to the Deputy Forest Conservator, Kottayam reiterating that the land comprised in survey No. BA 5580/2020 7 781/1-1 of Chethackal village has been handed over to the revenue department and is in their possession for the last 50 years. The applicants therefore, submit that there is a clear admission on the part of the DFO, Ranni that the disputed land is not a part of the reserved forest and that it belongs to the Revenue Department. Moreover, the Revenue Authorities asserting their right over the disputed land took action against the applicants for felling the valuable trees unauthorisedly in the revenue land and that the Tahsildar, Tiruvalla had addressed the RDO, Tiruvalla vide Annexure A6 letter dated 18/03/2020 and the District Collector, Pathanamthitta vide Annexure A9 letter dated 14/05/2020 intimating them about imposing a penalty of 1,840,292/-on the applicants towards₹ BA 5580/2020 8 value of the trees cut. In consequence to that the applicants had to remit the entire amount as per Annexures-7 and 8 Challans dated 10/01/2020 and 19/03/2020, respectively. The applicants were also proceeded against by the Ranni Police by registering Annexure A10 Crime No. 1309/2019 for offences punishable under Sections 447 and 379 r/w Section 34 of the IPC. The applicants approached this Court by filing Crl.M.C. 2573/2020 for quashing the FIR. Vide Annexure A11 , this Court has stayed further proceedings in that Crime. In order to quash the proceedings in OR 6/2020, the applicants filed Crl.M.C. 2984/2020, and the same is pending consideration. 5. The applicants state that there is no merit in the BA 5580/2020 9 allegations against the applicants. They are willing to cooperate with the investigation. Custodial interrogation and incarceration of the applicants is not essential. The forest crime registered against the applicants would amount to double jeaopardy. Hence they seek pre-arrest bail. 6. The prosecution is represented by the Special Government Pleader Sri Nagaraj Narayanan, and objections have been filed by the Divisional Forest Officer, Ranni representing the Forest Department and the Deputy Secretary, Revenue Department, opposing the grant of bail to the applicants stating that the applicants have abused the process of law by committing very grave Forest offences and then misleading this Court with all untenable contentions. BA 5580/2020 10 7. The objections can be encapsulated as thus: As per Annexure A1 Government Order, sanitation was accorded for disseveration and transfer of 1400 acres of Chethakkal Reserve to the Revenue Department for the purpose of resettlement of evictees from the Idukki Project area. There was no notification to dis-reserve the land in question. The land so transferred could not be used for any other purpose. Mining permission was sought in the 4.3440 Hectares of land described as a rocky area. The Tahsildar, Ranni had informed that it is not possible to assign the rocky area to persons eligible for the assignment. The applicants had clandestinely won over some Forest and Revenue officials to issue orders favourable to them. Proceedings have been initiated against the erring BA 5580/2020 11 officials. The disputed land continues to be a part of Forest reserve. There were invaluable trees standing in the property. All those rare trees, which were centuries old, have been cut, causing grave ecological imbalance to the otherwise fragile eco system. It is an irreparable loss to the forest wealth. Until the applicants are subjected to custodial interrogation, the larger conspiracy involved will not come to the fore. The applicants cannot get away by depositing amounts as mentioned in Annexures A7 and A8 after having caused irreparable loss to the ecological system. According to the Forest Department, the value of the trees even as per a modest calculation would come to ₹2,100,933/-and including the loss sustained to the ecology and the compensation calculated for the afforestation, BA 5580/2020 12 the total loss to the Nation comes to around 7,290,549/-. Mr₹ Narayanan, the Senior Government Pleader has fervently opposed the application for bail with all vehemence relying on a catena of decisions of the Apex Court, including in T.N.Godavarman Thirumapad v. Union of India [1997 KHC 701: AIR 1997 SC 1228] , and the decision of the Division Bench of this Court in One Earth One Life v. Ministry of Environment and Forests and Others [2018 (4) KHC 827] . It is stated that the applicants have been absconding and were not available for questioning. They are very influential persons who could even get favourable orders from the forest and revenue officials to serve their evil designs to denude the forest wealth of the Nation. Material objects used them will have to be BA 5580/2020 13 recovered. 8. The learned counsel Sri K.R.Vinod, appearing for the applicants has strenuously argued that applicants were performing in accordance with sanctions obtained by them. They are willing to cooperate with the investigation, and custodial interrogation may not serve the investigation in any manner. 9. I do agree with the learned Government Pleader that an offence under the Forest Act is grave. It is also true that anticipatory bail is an extraordinary discretionary remedy and cannot be granted in offences of grave nature. The Constitution Bench of the Apex Court in Gurubaksh Singh Sibbia V. State of Punjab [1980 KHC 665 :1980(2) SCC 565] BA 5580/2020 14 ## observed thus: “Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.” 10. The antecedents of the applicants including the fact as to whether the accused have previously undergone imprisonment on conviction by a Court in respect of any cognizable offence, the possibility of the applicants to flee from justice, the possibility of the their likelihood to repeat similar or the other offences, and the court has to consider reasonable apprehension of tampering of the witness or BA 5580/2020 15 apprehension of threat to the complainant are some of the parameters to be considered while considering an application for anticipatory bail. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. (See Siddharam Satlingappa Mhetre v. State of Maharashtra [2010 KHC 4952 :AIR 2011 SC 312] ). 11. None of the applicants in the instant case have any criminal antecedents. There is no possibility of their tampering with evidence. Most of the evidence are documentary, and it is question of interpretation. The application for quashing the proceedings is still pending before another Bench of this Court. It may not be appropriate to conclude on the legal BA 5580/2020 16 aspects of the applicants claim in this application for anticipatory bail. The learned Senior Government Pleader submits that the applicants are absconding and that they are not available for questioning. But there is no averment that the applicants were asked to appear before the investigating officer at any point in time. No notice under Section 41A Cr.P.C. was issued to them. The maximum punishment that can be awarded to the applicants in case of conviction is five years imprisonment. In Arnesh Kumar v. State of Bihar [2014(3) KHC 69 : 2014(8) SCC 273] , the Apex Court has held thus: “11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not BA 5580/2020 17 authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions: 11.2. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check list containing specified subclauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two BA 5580/2020 18 weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but BA 5580/2020 19 also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.” 12. The pandemic COVID-19 is at its peak at present and the need for decongestion of prisons and reducing the number of prisoners in detention was felt by the Apex Court in, In Re: Contagion of Covid 19 Virus In Prisons … Petitioner(s) [2021 SCC OnLine SC 376] ; and it is observed : “9. As a first measure, this Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic.” In view of the discussions made above and the BA 5580/2020 20 precedents relied upon, I find no reason to decline granting of anticipatory bail to the applicants. The application is allowed, and in the event of their arrest, the applicants shall, after interrogation, be released on bail on execution of bond for ₹2,00,000/- (Rupees two lakhs only) each with two solvent sureties each for like amount to the satisfaction of the arresting officer, and subject to the conditions under Section 438(2) Cr.P.C. Sd/- ASHOK MENON JUDGE jg