Mathew T.S. & Others v State of Kerala (B.A. Nos. 7545 and 7912 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 BAIL APPL. NO. 7545 OF 2022** **CRIME NO.3 OF 2016, THE CRIME BRANCH CENTRAL UNIT, THIRUVANANTHAPURAM** ## **PETITIONER/S:** 1 MATHEW T.S AGED 40 YEARS S/O SAMMUEL, THACHAYIL HOUSE, ELANJIPRA P.O, PARIYARAM CHALAKUDY, NOW WORKING AS RANGE FOREST OFFICER, CENTRAL NURSERY CHETTIKULAM, PIN - 680721 2 JYOTHISH J OZHAKKAL AGED 37 YEARS S/O JOJO MATHEW (LATE)OZHAKKAL HOUSE, KAROOR PO, PALA, KOTTAYAM, NOW WORKING AS RANGE FOREST OFFICER, AZHUTHA RANGE, PEERMADE, IDUKKI, PIN - 686575 3 SREEJITH T AGED 52 YEARS S/O THANKAPPAN M, SOUPARNIKA KGRA-488, TC 93/612, MADHUMUKKU KALUMOODU, ANAYARA P.O, NOW WORKING AS SECTION FOREST OFFICER, FOREST CONTROL ROOM FOREST HEADQUARTERS VAZHUTHACCAUD, TRIVANDRUM , PIN - 695029 4 R.B ARUN KUMAR AGED 37 YEARS S/O G BHASURANGAN, T.C 56/1853(3) JANARDHANAM, ELLANGATHARA, KARUMAM P.O, TRIVANDRUM, NOW WORKING AS SECTION FOREST OFFICER, KALLUVARAMBU SECTION, THENMALA RANGE, THENMALA DIVISION, PIN - 695002 5 K.S ANU KRISHNAN AGED 42 YEARS S/O LATE R.KRISHANKUTTY, VRINDAVANAM T.C 33/1683(3) OM NAGAR MRA 179G, MANIKANTESWARAM P.O, TRIVANDRUM, NOW WORKING AS SECTION FOREST OFFICER, THENMALA DIVISION, CENTRAL NURSERY, KULATHUPUZHA KOLLAM , B.A.Nos. 7545 and 7912 of 2022 PIN - 695013 BY ADVS. V.V.NANDAGOPAL NAMBIAR CHITRA JOHNSON SMITHA (EZHUPUNNA) ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 SRI AJI BRIGHT S/O RAMACHANDRAN , RESIDING AT GURUDEVA GRANDHASALA LANE, MUDUMBBIL SANALINTE VEETIL, ORUVATHILKOTTA, KADAKAMPALLI, VILLAGE, ATTINGAL, TRIVANDRUM , PIN - 695101 BY ADVS. PUBLIC PROSECUTOR M.SREEKUMAR M ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ## **OTHER PRESENT:** C K SREENIVASAN ,SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.Nos. 7545 and 7912 of 2022 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 BAIL APPL. NO. 7912 OF 2022** **CRIME NO. 3 OF 2016 OF CBCID ANTI PIRACY CELL TRIVANDRUM** ## **PETITIONER/S:** 1 T UMA IFS AGED 43 YEARS K. THIYAGASUNDARAM , 74, RABINDRANAGAR, NEW DELHI , PIN - 110003 2 R. KAMALAHAR IFS AGED 43 YEARS S. RAJAGOPAL 74, RABINDRANAGAR, NEW DELHI , PIN - 110003 3 VIJAYANANTHAN IFS AGED 44 YEARS S/O MR. KOLANTHAIVEL, RESIDING AT 709, VELLITHIRUPPUR, ANTHIYUR TK, ERODE DISTRICT, TAMILNADU , PIN - 638314 BY ADVS. V.V.NANDAGOPAL NAMBIAR CHITRA JOHNSON SMITHA (EZHUPUNNA) ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA (CRIME NO: 3/2016 CBCID ANTI PIRACY CELL TRIVANDRUM), PIN - 682031 2 SRI AJI BRIGHT S/O RAMACHANDRAN , RESIDING AT GURUDEVA GRANDHASALA LANE B.A.Nos. 7545 and 7912 of 2022 4 MUDUMBBIL SANALINTE VEETIL, ORUVATHILKOTTA, KADAKAMPALLI VILLAGE, ATTINGAL, TRIVANDRUM , PIN - 695101 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.Nos. 7545 and 7912 of 2022 5 ## **K. BABU, J** **…................................................. B.A.Nos. 7545 and 7912 of 2022** **…................................................................. Dated this the 17[th] day of November, 2022** ## **ORDER** These applications are filed under Section 438 of the Code of Criminal Procedure. 2. The petitioners are accused in FIR No.3 of 2016 registered by the Crime Branch Central Unit, Thiruvananthapuram. The offences alleged against the petitioners are punishable under Sections 342, 330, 331 r/w Section 34 of the Indian Penal Code. 3. The petitioners in B.A. No.7912 of 2022 are accused numbers 1 to 3 and the petitioners in B.A.No.7545 of 2022 are accused Nos. 4 to 8 in the crime. 4. The petitioners/accused are forest officials. Accused No.1 is the Controlling Officer of the elephant poaching cases spread in Malayattoor, Munnar and Vazhachal Forest Divisions. Accused Nos.2 and 3 are Divisional Forest Officers. Accused Nos. 4 and 5 are Forest Range Officers and accused Nos. 6 to 8 are Section Forest Officers. B.A.Nos. 7545 and 7912 of 2022 6 5. Accused No.1, being the Controlling Officer of the elephant poaching cases spread in Malayattoor, Munnar and Vazhachal Forest Divisions, was leading a team of forest officials investigating the cases. The cases involved poaching of 18 elephants for the purpose of illegal ivory smuggling and trade. Altogether 26 crimes were registered, 75 persons were arrested and 465 Kgs. of ivory and ivory artifacts were seized. Twelve unlicensed guns and 8 vehicles were also seized by the team of forest officials. 6. Respondent No.2 is alleged to be the kingpin of the elephant poaching cases registered by the petitioners/accused. The team of investigating officers seized large quantity of ivory and ivory artifacts as well as tools and sculptures from the possession of respondent No.2, who is the defacto complainant in the crime. 7. Respondent No.2 was arrested by the forest team on 12.07.2015. Large scale of ivory and ivory artifacts were recovered from his workshop at Balaramapuram. 8. Respondent No.2 was brought before the Judicial First Class Magistrate Court, Nedumangad on 12.07.2015. He had not raised any complaint of ill-treatment against the forest B.A.Nos. 7545 and 7912 of 2022 7 officials when produced before the Magistrate. Thereafter, respondent No.2 was brought before the Judicial First Class Magistrate Court -II, Kothamangalam on 13.07.2015. He was subjected to medical examination at Government Hospital, Thiruvananthapuram and Taluk Hospital, Kothamangalam. When respondent No.2 was produced before the Judicial First Class Magistrate Court, Kothamangalam, also he had not raised any allegations of ill-treatment by the forest officials. He was remanded in judicial custody till 25.07.2015. 9. While respondent No.2 was in judicial custody, his mother filed a complaint before the Human Rights Commission. As per the directions of the Human Rights Commission, respondent No.2 was subjected to medical examination on 01.08.2015 at the General Hospital, Muvattupuzha. Respondent No.2 stated to the doctor who examined him that he was assaulted by the forest officials while he was in their custody. The doctor gave intimation to the police regarding the allegations raised by respondent No.2. 10. The Station House Officer, Muvattupuzha Police Station recorded the statement of respondent No.2 and registered Crime No.1443 of 2015 alleging offences punishable B.A.Nos. 7545 and 7912 of 2022 8 under Sections 323, 324, 326 r/w Section 34 of the Indian Penal Code. Thereafter, the case was transferred to the Crime Branch which registered the present crime. 11. The prosecution case is that respondent No.2 was subjected to custodial torture and illegal detention on 11.07.2015 at Forest Head Quarters, Vazhuthakkad, while he was in custody of the forest officials in O.R.No.1 of 2015 of Idamalayar Forest Station. It is further alleged that accused Nos. 1, 2 and 10 identifiable accused, being forest officials, put the complainant in confinement in a room in the Forest Head Quarters, Thiruvananthapuram and had caused grievous hurt to him while purporting to extract confession in the elephant poaching case. 12. The case of the petitioners/accused is as follows; Accused No.1 was the controlling officer of the elephant poaching case which involved poaching of 18 Elephants. The case busted poachers, carriers, transporters and traders involved in Elephant Poaching and ivory trade across the country. Respondent No.2 (accused in O.R.No. 1 of 2015) was arrested. Search was carried out in various parts of Kerala, Tamil Nadu, Karnataka, Delhi and Kolkata. Altogether 26 crimes B.A.Nos. 7545 and 7912 of 2022 9 were registered. Respondent No.2 is a habitual offender involved in 18 forest cases. He was produced before the Judicial First Class Magistrate Courts, Nedumangad and Kothamangalam. He had not raised any allegations of illtreatment on the part of forest officials. He was also subjected to medical examination at the Government Hospitals at Thiruvananthapuram and Kothamangalam and he was found medically fit. Respondent No.2 filed a false complaint which formed the basis of the registration of the present crime with intent to wriggle out of the clutches of the prosecution initiated by the forest officials and to derail the investigation. The petitioners have not committed any offences as alleged. 13. Heard Sri. V. V. Nandagopal Nambiar, the learned counsel appearing for the petitioners, Sri.C.K. Suresh, the learned Senior Public Prosecutor appearing for the State and Sri. M. Sreekumar, the learned counsel appearing for respondent No.2/defacto complainant. 14. The learned counsel for the petitioners submitted that the petitioners are innocent of the allegations. The learned counsel relied on Annexure A2 statement recorded by the Judicial First Class Magistrate Court -II, Nedumangad, Annexure B.A.Nos. 7545 and 7912 of 2022 10 A5 statement recorded by the Judicial First Class Magistrate Court, Kothamangalam, Annexure A3 certificate of examination dated 12.07.2015 prepared by the Medical Officer at General Hospital, Thiruvananthapuram and Annexure A4 accident register-cum-wound certificate dated 13.07.2015 prepared by the Medical Officer at Taluk Hospital, Kothamangalam to substantiate his contentions. 15. Annexure A2 is the statement recorded by the Judicial First Class Magistrate Court, Nedumangad at the time when respondent No.2 was produced before the Court. The learned Magistrate had recorded that respondent No.2 and the other accused had no complaint against the forest officials. When they were produced before the Judicial First Class Magistrate Court-II, at Kothamagalam also they had raised no complaint against the forest officials. Annexure A3, the certificate of medical examination dated 12.07.2015 reveals that respondent No.2 had minor contusions over back. In Annexure A4, accident register register-cum-wound certificate dated 13.07.2015 prepared at Taluk Hospital Kothamangalam, the doctor noted small aberrations over the back of the body and right side of the chest below the right breast. Relying on B.A.Nos. 7545 and 7912 of 2022 11 Annexures A3 to A5, the learned counsel for the petitioners submitted that the allegations raised by respondent No.2 are false. The learned counsel for the petitioners further submitted that the attempt of respondent No.2 was to derail the investigation being conducted in the series of cases registered against him and to implicate the petitioners/accused in false cases. The learned counsel for the petitioners also relied on a series of complaints filed by respondent No.2 and his relatives before different forums after the registration of the series of crimes against him. 16. The learned counsel for respondent No.2 contended that respondent No.2 could not reveal the injury sustained by him consequent to the ill treatment on the part of the petitioners as there was threat on the part of the forest officials. The learned counsel further contended that even in Annexures A3 and A4 signs of physical assault were evident. 17. The learned Senior Public Prosecutor submitted on behalf of the prosecution that the petitioners as per the directions of this Court appeared before the Investigating Officer and they were subjected to thorough interrogation. The learned Senior Public Prosecutor submitted that as the B.A.Nos. 7545 and 7912 of 2022 12 petitioners co-operated with the investigation, their custodial interrogation is not warranted. The learned Senior Public Prosecutor further submitted that the investigation of the case is almost in the final stage and draft final report is under preparation and the investigating agency is intending to approach the competent authority for getting the Statutory Sanction. 18. Respondent No.2 was arrested on 11.07.2015. On the same day he was produced before the Judicial First Class Magistrate Court -II, Nedumangad and thereafter on 13.07.2015 before the Judicial First Class Magistrate Court -II, Kothamangalam. Both the learned Magistrates specifically recorded that he had no complaints against the forest officials. Element of any threat or coercion from disclosing any complaint or allegation against the forest officials is not evident from the statement recorded by the learned Magistrates concerned or in any of the relevant records. Respondent No.2 failed to make any statement regarding any ill treatment to the two doctors who examined him on 12.07.2015 and 13.07.2015. Respondent No.2 raised the allegations of ill treatment only on 01.08.2015. B.A.Nos. 7545 and 7912 of 2022 13 19. The materials made available lead this Court to the conclusion that the petitioners could establish a _prima facie_ case for getting the benefits contained in Section 438 of the Cr.P.C. 20. The principle that bail is the rule and jail is the exception has been well recognized by judicial pronouncements. This is the principle underlined in Article 21 of the Constitution of India. 21. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or canceling bail. {Vide: _**Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118]}**_ . 22. The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. After all, personal liberty of an accused or convict is fundamental, B.A.Nos. 7545 and 7912 of 2022 14 suffering lawful eclipse only in terms of “procedure established by law” {Vide: _**Gudikanti Narasimhulu v. State [(1978) 1 SCC 240]}**_ . 23. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty {Vide: _**Sanjay Chandra v. CBI [(2012) 1 SCC 40]**_ }. 24. Having considered the entire circumstances, including the stage of investigation, and the further fact that the petitioners are co-operating with the investigating agency and that they were interrogated thoroughly during the course of investigation, I find that they are entitled to anticipatory bail on conditions. In the result, the bail applications are allowed as follows: B.A.Nos. 7545 and 7912 of 2022 15 (a) The petitioners shall be released on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh Only) each with two solvent sureties each for the like sum to the satisfaction of the police officers concerned. (b) The petitioners shall appear before the Investigating Officer as and when required. (c) The petitioners shall not try to influence the prosecution witnesses or attempt to tamper with the evidence. Sd/- **K. BABU, JUDGE** Dxy B.A.Nos. 7545 and 7912 of 2022 16 ## **APPENDIX OF BAIL APPL. 7545/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE LIST OF PROPERTY SENT TO JUDICIAL FIRST CLASS MAGISTRATE COURT- II, KOTHAMANGALAM DATED 12.07.2015 - Annexure A2 TRUE COPY OF THE ORDER DATED 12.07.2015 - Annexure A3 TRUE COPY OF THE REPORT OF MEDICAL EXAMINATION DATED 12.07.2015 - Annexure A4 TRUE COPY OF THE MEDICAL REPORT DATED 13.07.2015 - Annexure A5 TRUE COPY OF THE ORDER DATED 13.07.2015 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- II, KOTHAMANGALAM - Annexure A6 TRUE COPY OF THE FIR NO. 1026/2015 REGISTERED BY MUSEUM POLICE STATION - Annexure A7 TRUE COPY OF THE REPORT IN CASE NO. 3/0CW/1/2016/ TRIVANDRUM - Annexure A8 TRUE COPY OF NOTICE DATED 19.09.2022 ISSUED TO 5TH PETITIONER UNDER SECTION 41A OF CR.PC - Annexure A9 TRUE COPY OF THE REPORT SUBMITTED TO STATE POLICE CHIEF PURSUANT TO THE DIRECTIONS IN HRMP NO: 8304/2015 OF KSHRC ## **RESPONDENT ANNEXURES** - Annexure -R2(a) TRUE COPY OF FIR IN CRIME NO.1026/2015 OF MUSEUM POLICE STATION DATED 8..8..2015 - Annexure -R2(b) TRUE COPY OF ACCIDENT REGISTER-CUM-WOUND B.A.Nos. 7545 and 7912 of 2022 17 CERTIFICATE DATED 1..8..2015 ISSUED FROM MUVATTUPUZHA GENERAL HOSPITAL Annexure -R2(c) TRUE COPY OF THE DISCHARGE CARD OF MOTHER OF 2ND RESPONDENT BY NAME LEELA ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DATED 13..07..2015 Annexure-R2(d) TRUE COPY OF LETTER NO.36/RIA/SKM/2015 FROM THE PUBLIC INFORMATION OFFICER OF SREEKARIYAM POLICE STATION DATED 28..08..2015. Annexure-R2(e) TRUE COPY OF STATEMENT FILED BY THE SUPERINTENDENT OF POLICE, CRIME BRANCH CENTRAL UNIT-I, THIRUVANANTHAPURAM DATED 5..8..2019 IN CRL.M.C.NO.2234/2018 B.A.Nos. 7545 and 7912 of 2022 18 ## **APPENDIX OF BAIL APPL. 7912/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE LIST OF PROPERTY SENT TO JUDICIAL FIRST CLASS MAGISTRATE COURT- II, KOTHAMANGALAM DATED 12.07.2015 Annexure A2 TRUE COPY OF THE ORDER DATED 12.07.2015 Annexure A3 TRUE COPY OF THE REPORT OF MEDICAL EXAMINATION DATED 12.07.2015 Annexure A4 TRUE COPY OF THE MEDICAL REPORT DATED 13.07.2015 Annexure A5 TRUE COPY OF THE ORDER DATED 13.07.2015 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- II, KOTHAMANGALAM Annexure A6 TRUE COPY OF THE FIR NO. 1026/2015 REGISTERED BY MUSEUM POLICE STATION Annexure A7 TRUE COPY OF THE REPORT IN CASE NO. 3/0CW/1/2016/ TRIVANDRUM Annexure A8 TRUE COPY OF NOTICE ISSUED TO THE 2ND PETITIONER UNDER SECTION 41A OF CR.PC Annexure A9 TRUE COPY OF THE INTERIM ORDER DATED 23.09.2022 IN B.A NO: 7545/2022 Annexure A10 TRUE COPY OF THE REPORT SUBMITTED TO STATE POLICE CHIEF PURSUANT TO THE DIRECTIONS IN HRMP NO: 8304/2015 OF KSHRC Annexure A11 TRUE COPY OF THE ORDER DATED 16.11.2015