Murugadas Mohan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 17[th] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 BAIL APPL. NO. 1877 OF 2022** ## **PETITIONER:** MURUGADAS MOHAN AGED 55 YEARS S/O. RAJAGOPAL, SREEKALYAN HOUSE, PATTIPPARAMBU P.O, THIRIVILUAMALA, THRISSUR DISTRICT. PIN - 680588 BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 DEPUTY RANGE FOREST OFFICER 2. DEPUTY RANGE FOREST OFFICER, PATTIKKAD FOREST STATION, PATTIKKAD RANGE, THRISSUR DISTRICT. PIN - 680652 BY ADVS.SHRI.K.B. SONY -PUBLIC PROSECUTOR SHRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.1877/2022 2 ## **ORDER** This is an application for anticipatory bail. 2. The petitioner has approached this Court seeking anticipatory bail in respect of a Crime registered as O.R.No.2/2021 of Pattikkad Forest Station, Pattikkad Forest Range, Thrissur Division. That occurrence report has been registered alleging the commission of offences under Rules 2(a), 3, 4 and 7 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules 1995, Section 379 of the Indian Penal Code and Sections 52, 61A and 67, 30(1)(c), 76(f) and (g) of the Kerala Forest Act, 1961. The petitioner received Annexure-3 notice stated to have been issued under Section 160(1) of the Code of Criminal Procedure, indicating that the petitioner is an accused in O.R.No.2/2021. This prompted the filing of this bail application, apprehending arrest in the above crime. The allegation in O.R.No.2/2021 is that 84 teak trees were cut and removed from land assigned for agricultural purposes, knowing fully well that the trees are the property of the Government. 3. Sri. M.P. Madhavankutty, the learned counsel appearing for the petitioner, would submit that the petitioner is absolutely innocent in the matter. It is submitted with reference to Annexure-2 statement filed by the Divisional Forest Officer, Thrissur Division before this Court in W.P.(Crl) No.143/2022 (A petition filed by the 1[st] accused in the above crime B.A.No.1877/2022 3 namely one John Rafi K.J.) that in paragraph 6 of the said statement, the names of the accused persons in the above crime are mentioned and the petitioner herein is not one among them. It is submitted that the statement is dated 28.2.2022 while Annexure-3 notice issued under Section 160(1) Cr.P.C., to the petitioner is dated 21.2.2022. It is submitted that there is an apparent contradiction between Annexure-2 statement and Annexure-3 notice in as much as in Annexure-2 filed on 28.2.2022, the petitioner is not shown as an accused in the above crime while Annexure-3 notice describes the petitioner as an accused in the case. It is submitted that a notice under Section 160(1) of Cr.P.C. is a provision for issuing a notice to a witness and not to an accused and therefore, Annexure-3 itself is unsustainable in law. It is submitted that amongst the provisions of law mentioned in the occurrence report, Rule 7 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules 1995 (hereinafter referred to as 'the 1975 Rules') and Section 379 of the Indian Penal Code are the only penal provisions. It is submitted that the provisions mentioned in relation to the Kerala Forest Act are not penal provisions, but procedures. It is submitted that under Rule 7 of the 1975 Rules, the punishment provided for is a maximum of six months or a fine of Rs.100/- or with both. It is submitted that Section 379 of the Indian Penal Code is the only non-bailable offence. It is submitted that in the light of the fact that Annexure-3 notice is illegal and again considering the contents of Annexure-2 statement, the B.A.No.1877/2022 4 petitioner is entitled to anticipatory bail. It is submitted that property involved in O.R.No.2/2021 belongs to the 1[st] accused in the case by virtue of a registered sale deed (Annexure-4). It is submitted that his predecessor-ininterest obtained Annexure-6 Pattayam (document evidencing assignment) under the Kerala Land Assignment Act, 1965. It is submitted that in Annexure-6 Pattayam issued on 21.9.1972, there is no mention of any tree standing on the property. It is submitted that by virtue of the amendment made to the Kerala Land Assignment Rules on 10.10.2017 vide SRO 621/2017, condition No.1 in the Pattayam issued under Rule 9 (3) of the Kerala Land Assignment Rules has been changed. It is submitted that the provisions of the Kerala Preservation of Trees Act, 1986 will not apply to Annexure-6 Pattayam as the same was issued prior to coming into force of the Kerala Preservation of Trees Act, 1986. It is submitted that on 11.3.2020, a Circular was issued by the revenue authorities stating that condition No.1 in the Pattayams issued prior to the amendment in 2017 need not be considered after the date of the amendment, which is 17.8.2017. It is submitted that though the said Circular was withdrawn on 2.2.2021, principally on the ground that there are cases in relation to that matter pending before this Court and also on the ground that the Circular was likely to be misinterpreted, there is no prohibition whatsoever in the cutting of the trees in question in view of a clarificatory order issued by a Division Bench of this Court, which stated that notwithstanding the stay of the Government B.A.No.1877/2022 5 Order dated 11.3.2020, there is no prohibition in cutting of trees in accordance with the law. It is submitted that the denial of the benefits of the 2017 amendment to Pattayams issued prior to the date of amendment amounts to discrimination which is prohibited under Article 14 of the Constitution of India. It is submitted that in respect of declaratory statutes, the presumption against retrospective operation is not applicable. Reliance is placed on the judgment of the Supreme Court in _**Government of India**_ v. _**Indian Tobacco Association; (2005) 7 SCC 396**_ . The judgment of the Supreme Court in _**Boucher Pierre Andre**_ v. _**Superintendent, Central Jail, Tihar; (1975) 1 SCC 192**_ is relied on for the proposition that a beneficial provision under Section 428 Cr.P.C. which provides for setting off of the period of detention during the period of investigation against a substantive sentence should be held as applicable even to cases where the conviction and sentence is prior to the date of the amendment. It is submitted that this principle should be made applicable to the facts of this case and the amendment in 2017 modifying condition No.1 in Pattayams issued should apply even to Pattayams issued prior to that date. It is submitted that even on the doctrine of fairness, the 2017 amendment should be held as applicable to Pattayams issued prior to the date of the amendment also. It is submitted that it is clear from the judgment of the Supreme Court in _**Commissioner of Income Tax (Central), New Delhi**_ v. _**Vatika Township Pvt. Ltd; (2015) 1 SCC 1**_ that the provisions of beneficial B.A.No.1877/2022 6 legislation would normally be held as having retrospective effect. It is submitted that the judgment in _**Indian Tobacco Association (supra)**_ and in _**Vijay**_ v. _**State of Maharashtra and others; (2006) 6 SCC 286**_ , establishes that beneficial legislation should normally be treated as retrospective even in the absence of any provision indicating the same to be retrospective. It is submitted that the condition in Pattayams issued under the Kerala Land Assignment (Regularisation of Occupation of Forest Land prior to 01.01.1977) Special Rules, 1993 is similar to the condition in Annexure-6 Pattayam. It is submitted that the aforesaid Rules of 1993 indicate that the provision applies only in respect of trees defined in Section 2(e) of the Kerala Preservation of Trees Act, 1986 and not to trees which are generated by way of natural growth or to any tree which is planted by the Pattadhar (person who received the pattayam). It is submitted that any other interpretation will be contrary to Article 300A of the Constitution of India. It is submitted that the Kerala Promotion of Tree Growth in NonForest Areas Act, 2005 and a subsequent notification issued by the Government on 14.11.2006 are being misused to prevent small and genuine farmers from cutting and removing trees, whether or not the Pattayams are issued under the Kerala Land Assignment Rules or under the Kerala Land Assignment (Regularisation of Occupation of Forest Land prior to 01.01.1977) Special Rules, 1993. 4. The learned Public Prosecutor opposes the grant of anticipatory B.A.No.1877/2022 7 bail. It is submitted that the offences which are the subject matter of O.R.No.2/2021 of Pattikkad Police Station are serious in nature. It is submitted that valuable trees belonging to the Government had been cut and removed by the accused in the case knowing fully well that the trees belong to the Government. It is submitted that the petitioner herein was working as a Manager of the 1[st] accused and he was clearly involved in the illegal cutting and sale of the trees in question. It is submitted that the petitioner was arrayed as an accused only on 1.3.2022 and this is the reason why the name of the petitioner was not mentioned in Annexure-2 statement filed before this Court. It is submitted that at the time when Annexure-3 notice was issued, the petitioner was not an accused in the case and any reference to the petitioner as an accused is only a genuine mistake. It is submitted that contentions raised by the learned counsel for the petitioner that condition No.1 in Annexure-6 pattayam has been modified by amendment to the Kerala Land Assignment Rules cannot be accepted. It is submitted that the petitioner was clearly bound by the terms of assignment and no order or circular issued later will have any application to the lands assigned through Annexure-6 Pattayam. It is submitted that the contention that the denial of benefit of 2017 amendment to the Land Assignment Rules amounts to discrimination is absolutely untenable. It is submitted that the said amendment has no retrospective operation. It is submitted that while the petitioner seeks the benefit of 2017 amendment to condition No.1, he also B.A.No.1877/2022 8 seeks to deny the liability imposed under the same amendment by stating that the Kerala Preservation of Trees Act, 1986 cannot apply to pattayams issued prior to coming into force of that Act. It is submitted that custodial interrogation of the petitioner is absolutely necessary as recovery of the stolen trees is not complete and investigation conducted thus far reveals that the petitioner is clearly involved in the matter. It is submitted that going by the statements recorded from the other accused, trees which are yet to be recovered were taken away by the petitioner. 5. I have considered the contentions raised. The offences alleged to have been committed by the petitioner along with the other accused are serious in nature. It is the case of the prosecution that the petitioner with the other accused cut and removed valuable trees belonging to the Government from land assigned solely for agricultural purposes. The contention of the learned counsel for the petitioner that no trees are mentioned in Annexure A-6 pattayam does not appeal to this Court. It is not disputed before me that there was a clear condition in Annexure A-6 pattayam that all trees standing on the land assigned for agricultural purposes is the property of the Government. The contention that with effect from 10.10.2017 vide SRO 621/2017 to the Kerala Land Assignment Rules, condition No.1 in the Pattayam issued under Rule 9 (3) of the Kerala Land Assignment Rules has been changed is equally untenable. The land in question was assigned with B.A.No.1877/2022 9 specific conditions. Those conditions will continue to operate notwithstanding any subsequent amendment. It is settled law that a person cannot approbate and reprobate. In _**Verschures Creameries, Limited V. Hull and Netherlands Steamship Company, Limited**_ .; 1921 2 K.B 608, the rule was explained thus by SCRUTTON L.J. _“A plaintiff is not permitted to “approbate and reprobate.” The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election — namely, that no party can accept and reject the same instrument. The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.”_ Condition No.1 in Annexure-6 Pattayam reads as follows: - _“The full right over all the trees within the grant and specified in the schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it.”_ After the 2017 amendment to the Kerala land Assignment Rules, in 2017, conditions (1) and (2) read as under:- _(1) “The land/lands assigned on registry as per Sub Rule 1 of Rule 8_ B.A.No.1877/2022 10 _shall be heritable and alienable.”_ - _(2)“The right over trees in the assigned land shall be as per Rule 10(3) of the Kerala Land Assignment Rules, 1964 provided Section 22 of the Kerala Preservation of Trees Act, 1986 read with Section 4 thereof shall apply._ Rule 10(3) of the Kerala Land Assignment Rules, 1964 reads as follows:- _“The assignee shall also be liable to pay the value of trees, plants and vines if any specified in Parts A and B of Appendix 3 to these Rules standing on the land at the time of assignment as such rates as may order be specified by the Government and subject to the following conditions.”_ The amendment is clearly not retrospective. The decisions cited by the earned counsel to contend that the amendments should be treated as retrospective cannot be accepted as the conditions are clearly not declaratory. A declaratory statute is one which is enacted to clarify the prior law or to declare what the prior law is. The 2017 amendment is clearly not such an amendment. The change of conditions upon which land will be assigned in future, by amendment, cannot be considered as an amendment declaring or clarifying existing law. The amendment is also not beneficial legislation warranting an interpretation that treats it as retrospective and that which applies to all pattayams issued prior to the amendment. The land owners, in this case, were clearly bound by the conditions upon which either B.A.No.1877/2022 11 they or their predecessors in interest had obtained the land, on assignment. Further, it is the contention of the learned counsel for the petitioner that the 2[nd] condition imposed after the 2017 amendment does not apply to the land in question because the Kerala Preservation of Trees Act, 1986 is a piece of legislation after the date of issuance of the pattayam. The contention that the first condition is retrospective while the second is not, cannot be accepted. The petitioner is clearly not entitled to anticipatory bail. The Bail application is, therefore, dismissed. However, it is directed that in the event of arrest, the petitioner shall be produced before the Magistrate on the same day. The Learned Magistrate shall consider and pass orders on any application that may be filed for bail on merits, on the same day, and without, in any manner, being influenced by the observations in this order. ## **sd/-** **GOPINATH P. JUDGE** acd B.A.No.1877/2022 12 ## **APPENDIX OF BAIL APPL. 1877/2022** |PETITIONER ANNEXURES|| |---|---| |Annexure1|A TRUE COPY OF THE ABOVE FOREST OFFENCE| ||SEIZURE REPORT (PRELIMINARY) BEFORE THE| ||FOREST RANGE, PATTIKKAD DATED 08.06.2021| |Annexure2|A TRUE COPY OF THE STATEMENT DATED| ||28.02.2022 FILED BY DIVISIONAL FOREST| ||OFFICER, THRISSUR DIVISION| |Annexure3|A TRUE COPY OF THE ABOVE NOTICE ISSUED| ||UNDER SECTION 160 (1) OF THE CODE OF| ||CRIMINAL PROCEDURE DATED 21.02.2022| |Annexure4|A TRUE COPY OF THE SALE DEED DATED| ||23.01.2021 EXECUTED BY ONE ANCY ANTONY| ||BEFORE THE SUB REGISTRAR’S OFFICE,| ||THRISSUR| |Annexure5|A TRUE COPY OF THE TAX RECEIPT| ||PERTAINING TO ANNEXURE 5 SALE DEED| |Annexure6|A TRUE COPY OF THE PATTA DATED| ||21.09.1972 BEARING NO. 386 WITH REGARD| ||TO AN EXTENT OF 70 CENTS COMPRISED IN| ||SURVEY NO. 1002/02 OF KILLANNOOR| ||VILLAGE, THRISSUR TALUK, THRISSUR| ||DISTRICT|