Mamachan @ Issac Francis v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940** ## **Bail Appl..No. 4798 of 2018** **O.R.NO. 2/2018 OF IRULAM FOREST STATION , WAYANAD** ## **PETITIONER/S:** **MAMACHAN @ ISSAC FRANCIS AGED 61 YEARS,S/O.ISSAC, KUREETHADAM, AZAD ROAD, KOCHI-17.** **BY ADV. SRI. S. RAJEEV** ## **RESPONDENT/S:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031, (OR 2/2018 OF IRULAM FOREST STATION, WAYANAD DISTRICT).** **BY SPECIAL GOVERNMENT PLEADER (FOREST)SRI.SANDESH RAJA** **OTHER PRESENT:** **SR.ADV. SRI. B.RAMAN PILLAI SR.PP. SRI. AMJAD ALI FOR STATE** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.09.2018, ALONG WITH Bail Appl. No.5023/2018, Bail Appl.No.4936/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No. 4798 of 2018 & conn. cases** **2** ## **ORDER** Bail application No.4798 of 2018 and Bail Application No.5023 of 2018 are related to O.R.No.2 of 2018 of Irulam Forest Range, Wayanad District and Bail Application No.4936 of 2018 is related to O.R.No.3 of 2018 of the very same Forest Range, Wayanad District. The petitioners who had applied for bail as per Bail Application No.4798 of 2018 and 5023 of 2018 respectively are accused Nos.2,1,3 and 4 respectively in O.R.No.2 of 2018 of Irulam Forest Range. The petitioner who has applied for bail by Bail Application No.4936 of 2018 is the 4[th] accused involved in O.R.No.3 of 2018. 2. The case of the prosecution in O.R.No.2 of 2018 was that the forest officials found 54 trees as cut and removed from the Pambra Coffee Plantation situated at Wayanad District, which according to them was vested in the Government vide Notification No.B6.211/2005 dated 08.06.2017. They prepared a mahazar and registered the Crime and occurrence report as above. Accused Nos.1 to 4, who are petitioners in bail application Nos.4798 of 2018 and 5023 of 2018, on their apprehension of being arrested in O.R.No.2 of 2018, have moved these applications seeking pre arrest bail. The allegation of the prosecution in **Bail Appl..No. 4798 of 2018 & conn. cases** **3** O.R.No.3 of 2018 was that based on an information that more trees than those found as cut in O.R. No.2 of 2018 were cut from the same plantation, the Forest Officials proceeded to the spot and found 106 numbers of Silver Oak trees as cut and kept therein. A mahazar was prepared by the forest officials, following which the Crime and occurrence report was prepared as O.R.No.3 of 2018. Accused No.4, the petitioner in Bail Application No.4936 of 2018, moved this application on his apprehension that he would be arrested by the forest officials in the aforesaid Crime. 3. Sri.Raman Pillai, the learned Senior Counsel advanced arguments on behalf of the petitioners in all the three bail applications. According to him in both O.Rs, 4 accused were involved and in O.R.No.3 of 2018 all the 3 accused except the 4[th] accused were granted regular bail. According to him, the Manager was not arrested in O.R.No.2 of 2018, though he was very much available at the place at the time when the forest officials made a visit of the place of occurrence. He has invited my attention to Section 63 of the Kerala Forest Act, 1961 to contend that arrest of suspected culprits in forest offences without warrant or order from a court could only be effected in the three contingencies stated therein. According to the Senior Counsel the **Bail Appl..No. 4798 of 2018 & conn. cases** **4** contingencies firstly was, when the suspected culprit failed to furnish his address. Secondly, when the address furnished by them found to be false and thirdly, when the officer finds reason that they would abscond. The learned counsel has also brought to my attention **Suku alias Paravattom Suku** v. **State of Kerala and others 2014(1) KHC 559** , a judgment of the Division Bench of this court to contend that the offence under Section 27 being a cognizable and non bailable one and a forest officer or a police officer would have power to arrest a person suspected, without obtaining a warrant or order from a court of law in any of the three contingencies enumerated under Section 63 of the Kerala Forest Act, exist. The learned counsel has also drawn the attention of this court to some more aspects. According to him, the petitioners are owners of 825 acres of coffee plantation namely Pambra coffee plantation in Wayanad District. The estate was purchased by Isaac Peter and brothers from a company namely Bombay Burma Trading Corporation Ltd in the year 1975. After the conveyance of the plantation, with the coming into force of the Kerala Private Forests (Vesting and Assignment Act), 1971, in the year 2012, the Government attempted to acquire certain area of the said property under the guise that it was a part of the private forest. In restraint of the act, the **Bail Appl..No. 4798 of 2018 & conn. cases** **5** Pambra plantation filed Writ Petition No.7336 of 2012 before this court and an interim order directing to maintain _status quo_ was obtained. On 8.6.2017, a Notification was issued claiming possession of 85.4 hectors of the plantation. Writ Petition No.22787/2017 was filed by the Pambra Coffee plantation to get the Notification quashed. Counter statement was filed by the State in the Writ Petition and after hearing both sides, a judgment was passed on 11.12.2017, a copy of which is produced and appended to as Annexure 1. The Writ Petition was dismissed reserving liberty to the petitioners to approach the Tribunal to settle the issues. Direction was issued to the respondents not to disturb the possession and enjoyment of the property by the petitioners till the issue regarding the ownership of the property will be decided by the Forest Tribunal. Since the relief sought was not granted in the Writ Petition, the petitioners challenged the judgment of the Single Bench in Writ Appeal No.277 of 2018. In the Writ Appeal, a judgment was passed, a copy of which is produced and appended to as Annexure -II. After hearing both sides, the Writ Appeal was dismissed, but the right to possess the aforesaid property till the settlement of the issue by approaching the Forest Tribunal, is maintained. O.A.No.19/2018 was preferred by the petitioners before the Forest Tribunal, Kozhikode, a copy of which is **Bail Appl..No. 4798 of 2018 & conn. cases** **6** produced and appended to as Annexure-III and the O.A is pending consideration. It is contended by the learned counsel that in the meanwhile in the month of June, 2018, due to torrential rain, certain Silver Oak trees which have been planted by the coffee plantation for affording protection to the coffee plants, were uprooted and accordingly those were cut and removed by the petitioners through their workers to ensure their safety. It is alleged that knowingly of this on 17.6.2018, the forest officials visited the plantation and on finding the fallen and uprooted trees, they prepared a mahazar and that culminated in the registration of the respective ORs. It is contended by the learned counsel that the Manager, Mr.Sijo Mathew, the 1[st] accused, though was available at the place was not arrested then and that itself shows that the forest officials had no plan originally to arrest. Later on, they changed their mind at the instigation of some one and now is after them only to harass them. The learned counsel has also urged that though vast number of trees were alleged as cut and some of the cut trees were alleged as removed from the place of occurrence, loss allegedly sustained by the Government is only to the extent of Rs.2000/- and Rs.6000/- respectively in the ORs. It is also contended by the learned counsel that two of the accused have already furnished their correct **Bail Appl..No. 4798 of 2018 & conn. cases** **7** address and the addresses of two others are stated as yet to be obtained. According to the learned counsel, petitioners are ready to furnish their address and to co-operate with the interrogation and therefore, there exist no circumstances as contemplated under Section 63 of the Act to arrest the petitioners. Therefore, in view of the discussion made as above, all the petitioners are entitled to get orders of pre arrest bail in their favour. 4. The learned Public Prosecutor on the contrary, has vehemently resisted all bail applications. According to him the number of total trees cut in one OR is 106 and in the other OR, 54. According to him certain portions of the cut trees have also been alleged as removed by the petitioners and thereby the Government had sustained loss to the tune of Rs.2000/- and Rs.6000/- in the respective Crimes. It is also contended by the learned Public Prosecutor that on enlargement of the petitioners on pre-arrest bail, they would not be available for the trial to be held and that would defeat the prosecution. The further contention of the learned Public Prosecutor was that the trees were cut and removed during the pendency of O.A.No.19 of 2018 before the Forest Tribunal, Kozhikode and intended thereby to create evidence and on its basis to get an order from the Forest Tribunal in their favour. Raising arguments **Bail Appl..No. 4798 of 2018 & conn. cases** **8** of the nature, the learned Public Prosecutor has resisted the bail applications and canvassed for dismissal of the same. 5. I have gone through the Case Diary made available for perusal. The order of this court dated 9.7.2018 in B.A.No.4484 of 2018 granting bail to accused Nos.1 to 3 in O.R.No.3/2018 is also gone through. The arguments advanced by both sides were also evaluated. Mahazars prepared in the respective ORs are available in the Case Diary and a glance of those reveal that 106 trees have been cut in O.R.No.3 of 2018 and 54 trees, in O.R.No.2 of 2018. There is also allegation to the effect that cut portions of some trees have also been removed from the place of occurrence. However, loss alleged as sustained by the Government is only to the tune of Rs.6000/- and Rs.2000/- in the respective ORs. 6. The arguments advanced by the learned Public Prosecutor that trees have been cut and removed with intention to create false evidence and thereby to obtain an order in petitioners' favour is found devoid of any merits for the sole reason that to obtain an order in their favour from the Tribunal, the petitioners have to establish so many aspects and the burden of proof is heavily upon them. The apprehension of the learned Public Prosecutor that if enlarged on bail, the presence of **Bail Appl..No. 4798 of 2018 & conn. cases** **9** the petitioners is difficult to be procured for trial is also devoid of any merits, since this court has observed in the order dated 9.7.2018 granting bail to accused Nos. 1 to 3 in O.R. No.3/2018, after perusing the relevant records that there is no scope for the petitioners to abscond and making themselves unavailable for trial. Apart from all the above, Section 63 of the Act is very much available to protect the petitioners, which says that only in the three contingencies enumerated therein, the arrest of the petitioners can be effected without a warrant or order being obtained from the court. 7. For the fore saying reasons, this court is of the view that custodial interrogation will not improve the case in any manner. The learned Public Prosecutor, failed to draw my attention to the part of the investigation that remains, that it could be facilitated only with the presence of petitioners in custody. In the result, these bail applications stand allowed. The arresting Officer is directed to enlarge the petitioners on bail in the event of arrest of each of them, on execution of a bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties, for the like sum to the satisfaction of the arresting officer and subject to conditions made mention note of hereinbelow : **Bail Appl..No. 4798 of 2018 & conn. cases** **10** 1. The petitioners shall report before the Investigating Officer in between 9 am and 11 am on all Saturdays commencing from 15.09.2018 for a period of three months or till the filing of the final report in the case in question, whichever is earlier. 2. The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer. 3. The petitioners shall not tamper with evidence or influence witnesses. 4. The petitioners shall not involve in any offence while on bail. 5. The petitioners shall not leave India without the permission of this Court and possessed with passport, if any, they shall deposit the same before the jurisdictional court within a week of their release on pre-arrest bail. If they do not possess one, an affidavit to that effect shall be filed within that time. The release of passport, if any, is required, they have to move an application and the court concerned shall consider the same and pass appropriate orders in accordance with law. In case of violation of any of the above conditions, the jurisdictional Court is empowered to consider the application for cancellation, if any, filed by the authority concerned and pass appropriate orders in accordance with law. **Sd/-** ## **MARY JOSEPH** ## **JUDGE** IAP