Shijiraj N.R. v. State of Kerala and Sarun Saji S/o Sajimon

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945** **CRL.A NO. 1160 OF 2023** **CRIME NO.703/2022 OF UPPUTHARA POLICE STATION, IDUKKI** **AGAINST THE ORDER/JUDGMENT IN CRMC 608/2023 OF DISTRICT COURT &** **SESSIONS COURT, THODUPUZHA** **APPELLANT/ACCUSED NO.5:** **SHIJIRAJ N.R AGED 49 YEARS (BEAT FOREST OFFICER, IDUKKI, KERALA) S/O N. RAMAKRISHNAN ACHAARI, AGED 49 YEARS, KIZHAKKETHARA VEEDU, KALLIPPARA, PALODU PACHA P.O, THIRUVANATHAPURAM, PIN - 695562** **BY ADVS. V.V.NANDAGOPAL NAMBIAR PREEJA. P.VIJAYAN SMITHA (EZHUPUNNA) CHITRA JOHNSON** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** - **2 SARUN SAJI S/O SAJIMON, PUTHENPURAKKAL, MULLA, MATHAYIPPARA, IDUKKI, PIN - 685505** **BY ADVS. SRI.M.P.PRASANTH, PUBLIC PROSECUTOR ADV ARUNDAS K S ABHISHEK KURIAN(K/296/2010)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1160 OF 2023** **2** ## **JUDGMENT** Dated this the 17[th] day of August, 2023 This appeal has been filed under Section 14A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, (hereinafter referred to as “the SC/ST (POA) Act, for convenience”) and the appellant is the 5[th] accused in crime No.703/2022 of Upputhara police station, Idukki, where the prosecution alleges commission of offences punishable under Sections 120(B), 167, 193, 195, 196, 204, 211, 348, and 465 of IPC and Sections 3(2)(i), 3(2)(i)(ii), 3(2)(Vii) of SC/ST POA Act by the accused. The appellant is aggrieved in the matter of dismissal of Crl.M.C. No.608/2023 by the Special Judge for SC/ST (POA) Act, Thodupuzha, wherein the appellant sought the relief of regular bail. 2. Heard the learned counsel for the appellant and the learned counsel appearing for the defacto complainant in detail. The argument addressed by the learned Public Prosecutor also heard. Perused the relevant records and the case diary. **CRL.A NO. 1160 OF 2023** **3** 3. The prosecution case runs on the premise that the accused, in their capacity as Forest officials, had inspected the autorickshaw of the second respondent at the Vanmavu Checkpost in Kizhukkanam Section of Idukki Wildlife Sanctuary at about 9.00 am on 20.09.2022. On inspection, the second respondent was found carrying wild animal meat in his autorickshaw. Thereupon, OR No.1 of 2022 was registered as per Form 1 and report submitted to the Judicial First Class Magistrate Court, Kattappana, alleging commission of offences under Sections 9, 2(16), 2(20), 51(1), 57, 39(1)(6) and 39(3) and Section 429 IPC r/w 34 IPC r/w Sec.56 of the Wild Life Protection Act and Section 61(A) of the Kerala Forest Act. Accordingly, the second respondent was arrested and later remanded to judicial custody till 03.10.2022. Thereafter, as per Annexure A8 order dated 26.09.2022, the custody of the second respondent was given to the Forest Officer for one day. The second respondent was later granted bail on 01.10.2022. The second respondent being a member of the Scheduled Tribe, the **CRL.A NO. 1160 OF 2023** **4** tribal leaders and political parties started agitations, alleging that the second respondent was falsely implicated in O.R.No.1/2022 and he was tortured by the forest officials. Much after the second respondent's release, Annexure A1 crime was registered against the appellant and twelve others. Even though appellant moved an application for regular bail before the Special Court, it was dismissed as per Annexure A3 order. Now Annexure A3 order is under challenge in this appeal. 4. It is submitted by the learned counsel for the appellant that earlier accused Nos.1 to 4, 6, 8, 10 filed anticipatory bail before the Special Court for the SC/ST (POA) Act, Thodupuzha vide Crl.M.C.No.456/2022 and the same was dismissed. Challenging the said order, Crl.A. No.817/2023 was filed and as per Annexure A4 judgment dated 27.06.2023, this Court granted anticipatory bail to accused Nos.4, 6 to 8 and 10 while dismissing the appeal at the instance of the other accused. Later, the accused surrendered before the Investigating Officer on 15.07.2023 and have been in custody thereafter. The **CRL.A NO. 1160 OF 2023** **5** learned counsel for the appellant submitted that the 5[th] accused/appellant herein is in custody from 05.07.2023 and the investigation requiring his custody is practically over, he may be released on regular bail and he is ready to be abide by any conditions as a pre-requisite for granting bail. 5. The learned counsel for the defacto complainant filed detailed objection and resisted the contentions on the ground that the prosecution allegation as to commission of above offences is well made out _prima facie_ in this crime. Therefore, premature release of the accused, who is a forest official, would impede the investigation. 6. The learned Public Prosecutor also opposed grant of bail on the ground that immediate release of the appellant would stall the investigation. 7. In this case, crime was registered, after recording the first information statement given by the defacto complainant, who alleged to have falsely implicated in OR No.1/2022 of Kizhukkanam Section Forest Office alleged that he possessed **CRL.A NO. 1160 OF 2023** **6** the meat of a wild animal as against the provisions of the Wild Life (Protection) Act, 1972 and the Kerala Forest (Amendment Act), 1993. It is discernible from the copy of final report placed by the learned counsel for the defacto complainant that the Investigating Officer Sri.Jayachandran G, Wildlife Warden, Idukki, on investigation, found that this case against the defacto complainant was registered as ' _mistake of act_ ' and he requested the Judicial First Class Magistrate to drop the proceedings as per report dated 19.04.2023. The crux of the prosecution case in the instant case is that the defacto complainant was illegally detained and manhandled, knowing fully that he is a member of the Scheduled Tribe community, by accused Nos.1, 2, 3, 5, and 11, who did not belong to either the Scheduled Caste or Scheduled Tribe community. There is allegation for the prosecution further that the defacto complainant was brought down from a bus before registering OR No.1/2022 and the bus ticket produced by the defacto complainant also was destroyed by the accused in this crime to cause disappearance of **CRL.A NO. 1160 OF 2023** **7** evidence. 8.Going by the prosecution allegations, there are sufficient materials, _prima facie,_ to substantiate the prosecution case. However, the appellant has been in custody from 05.07.2023, in a case where the investigation has achieved much progress. There is no criminal antecedents for the appellant also. In view of the above, I am inclined to set aside the order of the learned Special Judge, rejecting regular bail to the 5th accused. In the result, the appeal stands allowed and the order impugned stands set aside. The appellant is enlarged on regular bail on the following conditions: - i. The appellant shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only), with two solvent sureties, each for the like amount to the satisfaction of the Special Court concerned. - ii. The appellant shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. - iii. The appellant shall appear before the **CRL.A NO. 1160 OF 2023** **8** Investigating Officer on all Saturdays in between 9.00 am and 11.00 am for a period of two months, after his release on bail. The appellant also shall appear before the Investigating Officer as and when directed. iv. ## v. The appellant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer. The appellant shall not disturb the defacto complainant in any manner during the currency of bail hereby granted, if any such evident reported or came to the notice of this Court, the same alone is a reason to cancel the bail hereby granted. vi. The appellant shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted. **Sd/A. BADHARUDEEN JUDGE** nkr **CRL.A NO. 1160 OF 2023** **9** ## **APPENDIX OF CRL.A 1160/2023** ## **PETITIONER ANNEXURES** - **ANNEXURE A1 TRUE COPY OF FIR IN CRIME NO. 703/2022 OF UPPUTHARA POLICE STATION** - **ANNEXURE A2 TRUE COPY OF FORM NO.1 UNDER SECTION 52 OF KERALA FOREST ACT 1961 IN OR NO. 1/2002, FILED BEFORE JFCM COURT, KATTAPANA** - **ANNEXURE A3 TRUE COPY OF THE ORDER DATED 25.7.2023 IN CRL MC 608/2023 OF THE SPECIAL COURT FOR THE TRIAL OF SC/ST (PREVENTION OF ATROCITIES ACT 1989, THODUPUZHA** - **ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN CRL APPEAL NO: 817/2023 DATED 27.06.2023** - **ANNEXURE A5 TRUE COPY OF THE ORDER IN CRL.A.NO. 1039 OF 2023 DATED 14.7.2023** ## **RESPONDENT ANNEXURES** - **ANNEXURE R2(A) A TRUE COPY OF OR NO 1/2022 OF KIZHUKANAM SECTION FOREST OFFICE, WHICH WAS SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT KATTAPPANA, IDUKKI** - **ANNEXURE R2(B) A TRUE COPY OF THE MAHAZAR PREPARED BY THE 1ST PETITIONER HEREIN WHICH WAS SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT KATTAPPANA, IDUKKI** - **ANNEXURE R2(C) A TRUE COPY OF THE REMAND REPORT DATED 20.09.2022 IN OR NO 1/2022 OF KIZHUKANAM SECTION FOREST OFFICE, WHICH WAS SUBMITTED BEFORE THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT KATTAPPANA, IDUKKI** - **ANNEXURE R2(D) A RECEIPT ISSUED BY THE SHO UPPUTHARA POLICE STATION DATED 18.10.2022 RECEIVING** **CRL.A NO. 1160 OF 2023** **10** ## **THE COMPLAINT OF THE 2ND RESPONDENT** **ANNEXURE R2(E) A TRUE COPY OF THE REPORT DATED 19.10.2022 OF THE DIVISIONAL FOREST OFFICER, FLYING SQUAD, IDUKKI** **ANNEXURE R2(F) A COMPLAINT FILED BY THE FATHER OF THE 2ND RESPONDENT BEFORE THE WILD LIFE WARDEN DIVISIONAL OFFICE VELLAPPARA WITH SUPPORTING DOCUMENTS** **ANNEXURE R2(G) A TRUE COPY OF THE ORDER DATED 29.10.2022 BEARING NO KFDHRC/348/2022- CCFHRC/E3 OF CIRCLE CHIEF FOREST CONSERVATOR, HIGH RANGE CIRCLE, KOTTAYAM** **ANNEXURE R2(H) A TRUE COPY OF THE ORDER DATED 01.11.2022 BEARING NO GO (MS) NO 467/2022 FWLD ISSUED BY JOINT SECRETARY TO THE GOVERNMENT** **ANNEXURE R2(I) A TRUE COPY OF THE REPORT DATED 10/11/2022 OF THE ADDITIONAL PRINCIPAL CHIEF FOREST CONSERVATOR (ADMINISTRATION) SUBMITTED BEFORE THE KERALA HUMAN RIGHTS COMMISSION** **ANNEXURE R2(J) A TRUE COPY OF THE REPORT FILED BY THE WILD LIFE WARDEN, IDUKKI DATED 19.04.2023** **ANNEXURE R2(K) A TRUE COPY OF THE ORDER DATED 19.04.2023 OF THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT KATTAPPANA DATED 19.04.2023 IN RC 30/2023**