SUKU ALIAS PARAVATTOM SUKU v. STATE OF KERALA and ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934** ## **WP(C).No. 7192 of 2012 (Y)** ## **--------------------------** ## **PETITIONER:** ## **-----------** **SUKU ALIAS PARAVATTOM SUKU, AGED 41 YEARS, S/O.SUKUMARAN, ARUN BHAVAN, ELAVARAMKUZHI PANGUMPARA THADATHIL, AYIRANELLOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.** **BY ADVS.DR.V.N.SANKARJEE** **SRI.V.N.MADHUSUDANAN** **SMT.R.UDAYA JYOTHI** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE FOREST RANGE OFFICER, ANCHAL RANGE, KOLLAM DISTRICT.** **3. THE CHIEF CONSERVATOR OF FOREST, THIRUVANANTHAPURAM-695 001.** **4. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **BY SMT.M.G.LISHA, GOVERNMENT PLEADER BY SRI.M.P.MADHAVANKUTTY,SPL.GOVT.PLEADER FOR FOREST DEPARTMENT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** **WP(C).No. 7192 of 2012 (Y)** ## **APPENDIX** **PETITIONER(S) EXHIBITS:** **EXHIBIT P1: COPY OF THE OCCURRENCE REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT (FOREST OFFENCES), PUNALUR IN O.R.NO.4 OF 2012 TOGETHER WITH FORM NO.1 PRELIMINARY SEIZURE REPORT AND MAHAZAR. EXHIBIT P2: COPY OF THE ORDER DATED 12/3/2012 IN BA.NO.1458 OF 2012 OF THE HON'BLE HIGH COURT OF KERALA. RESPONDENTS' EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **AS** ## **S.S.SATHEESACHANDRAN, J.** ## **----------------------------------------------W.P.(C) No.7192 OF 2012 ------------------------------------------------------Dated this the 19[th] day of June, 2012** ## **JUDGMENT** This writ petition has been filed under Article 227 of the Constitution of India seeking the following reliefs: - i) Declare that the power of the Forest Officer to release any person accused of forest offence on bail provided under Section 64 of the Kerala Forest Act 1961 is available to the Police Officer arresting any person accused of or concerned to any forest offence under Section 63 of the Act and any Judicial Magistrate considering application for bail of any person accused of a forest offence. - ii) Declare that all the forest offences defined under Section 2(e0 of the Kerala Forest Act 1961 are noncognizable and bailable. - iii) Declare that the practice of treating all forest offences defined under Section 2(e) of the Kerala Forest Act 1961 are nonbailable as unconstitutional. - iv) As consequential relief, issue a writ of mandamus or any other appropriate writ or order directing the 2[nd] respondent or the police officer concerned or the Judicial First Class Magistrate's Court (Forest Offences), Punalur in O.R No.4 of 2012 on the file of the 2[nd] respondent, to release the petitioner on bail if he appears or surrenders or is produced before any of them. - v) Pass such other orders as this Honourable Court deems fit and proper in the facts and circumstances of the case. W.P.(C) No.7192/2012 2 2. Petitioner is the accused in O.R No.4/2012 registered by the Forest Range Officer, Anchal range, Kollam District for offences punishable under Section 27(1)(d), (e)(iii) & (iv) of the Kerala Forest Act, 1961, hereinafter referred to as the Act. Previously, he had moved an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, for short, 'the Code' before this court and that was disposed vide Ext.P2 order directing him to surrender before the Magistrate and move for bail. Petitioner has thereafter filed the aforesaid O.P setting forth a case that there is gross disparity in the powers conferred on the police officer, when compared with that of a Forest Officer of the rank of Ranger and above in respect of arrest of persons who are suspected to have committed offences under the Act. Where as Section 64 of the Act enables a Forest Officer of a rank not inferior to that of a Ranger to release a person on his arrest executing a bond to appear as and when required before the Magistrate having jurisdiction of the case or the officer in charge of the nearest police station, petitioner contends, no such power is conferred on the police. Reference is also made to Section 63 of the Act to contend what are the circumstances under which in relation to the commission of a forest offence a person can be arrested by the W.P.(C) No.7192/2012 3 police or the Forest Officer. In the light of the power conferred on the Forest Officer of the rank indicated under that section to release a person on execution of a bond, further contention of the counsel is that the offences under the Act are bailable. If that be so, according to the counsel, conflicting provisions with respect to the power of the police and also that of the Forest Officer in releasing arrested persons, who are suspected to have committed forest offence, would be repugnant to the right to equality and right to life enshrined under Article 14 and 21 the Constitution of India. Learned Special Government Pleader (Forest), opposing the reliefs set out in the petition submits that whether the offences are bailable or nonbailable have to be determined with reference to the provisions under the special enactment and also Schedules appended to the Code. Adverting to Schedule 2 of Part I of the Code with reference to Section 27 of the Act the learned Special Government Pleader pointing out that the punishment for the forest offences under the above section extends to five years, submits that such offences are nonbailable. No inquiry or dilation whether it is bailable or nonbailable with reference to Section 64 of the Act, as contended by the learned counsel for the petitioner, emerges for consideration in W.P.(C) No.7192/2012 4 the case, is the further submission. 3. I am afraid the reliefs canvassed in the petition and the submissions made by the counsel in support thereof are totally misconceived. Section 63 of the Act provides what are the circumstances under which a person suspected to have committed an offence could be arrested by a police officer or a Forest Officer. Sub Section (2) of that Section specifically spells out what should be done by a Forest Officer when he arrests such a person. Sub Section (2) spells out thus: “Any person arrested under this Section shall be informed, as soon as may be, of the grounds of arrest and shall forthwith be taken or sent to the nearest police station and the officer in charge of such station shall thereupon act according to law.” So, primarily, authority to arrest a person who is suspected of having committed any offence is with the police. Certain special enactments, to prevent the mischief that is intended to be taken care of by such statutes provide for arrest by certain other agencies as well. Power to arrest offenders of abkari offences by excise officials as provided under Abkari Act and in respect of forest offences by forest officers as under the Act are a few among such conferment W.P.(C) No.7192/2012 5 given by the respective statutes. However, when such arrest is made by such officials they have to produce the person so arrested to the nearest police station or the Magistrate. Sub Section (2) of Section 63 of the Act also stipulates the same. What is now followed under that Section is production of the offender on his arrest before the Magistrate. That is also legal though sub Section (2) of Section 63 of the Act as such does not provide for his production before the Magistrate. What is required is only that once an arrest is made complying with the stipulations laid down under **“Joginder kumar v State of UP & Others” (1994(1) KLT 919)** he should be produced before the Magistrate. However, having regard to the fact that forest offences often take place within the interior parts of forest and it may be rather difficult for the Forest Officer who arrests such offender to produce him as soon as possible before the nearest police station, when he is satisfied of his identity, Section 64 enables him to release such person on executing a bond to appear before the nearest police station or the court concerned. That alone is the purport of Section 64 and also intend of that Section. That Section cannot be interpreted in a manner holding that the offences covered by that Section are bailable. There is no question of any infringement of right W.P.(C) No.7192/2012 6 to equality or right to life under Article 14 and 21 of the Constitution of India in providing such an enabling provision under Section 64 of the Act to the Forest Officer to release an offender on his executing of bond subject to the satisfaction as to his identity. There is no merit in the Writ Petition, and it is dismissed. vdv **S.S.SATHEESACHANDRAN, JUDGE**