V. Narayana Namboothiri v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 ``` ``` BAIL APPL. NO. 5046 OF 2023 ``` ``` CRIME NO.1/2023 OF PACHAKKANAM FOREST STATION OFFICE, PATHANAMTHITTA PETITIONER/ACCUSED NO.1: ``` ``` V. NARAYANA NAMBOOTHIRI AGED 46 YEARS SON OF P.V. VISHWANATHAN NAMBOODIRI, NO.4, DR. RADHAKRISHNAN STREET, KRISHNA NAGAR, PALAVAKKAM, KANCHEEPURAM, TAMIL NADU, PIN-600041, PRESENTLY RESIDING AT 17/23, NANDHI KOIL STREET, TRICHY., PIN - 620002 BY ADVS. NIREESH MATHEW VIVEK VENUGOPAL BABU JOSE SEBIN SEBASTIAN GAJENDRA SINGH RAJPUROHIT DEVAN N.R MATHEW JACOB ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI.C.S.HRITHWIK, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25.08.2023, ALONG WITH Bail Appl..5040/2023, THE COURT ON 11.09.2023 PASSED THE FOLLOWING: ``` B.A. Nos.5046 & 5040 of 2023 2 # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 ``` ``` BAIL APPL. NO. 5040 OF 2023 ``` ``` CRIME NO.127/2023 OF MOOZHIYAR POLICE STATION, PATHANAMTHITTA PETITIONER/S: ``` ``` V. NARAYANA NAMBOOTHIRI AGED 46 YEARS SON OF P.V. VISHWANATHAN NAMBOODIRI, NO.4, DR. RADHAKRISHNAN STREET, KRISHNA NAGAR, PALAVAKKAM, KANCHEEPURAM, TAMIL NADU, PIN-600041, PRESENTLY RESIDING AT 17/23, NANDHI KOIL STREET, TRICHY., PIN - 620002 BY ADVS. NIREESH MATHEW VIVEK VENUGOPAL BABU JOSE SEBIN SEBASTIAN GAJENDRA SINGH RAJPUROHIT DEVAN N.R MATHEW JACOB ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` BY C.S.HRITHWIK, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25.08.2023, ALONG WITH Bail Appl..5046/2023, THE COURT ON 11.09.2023 PASSED THE FOLLOWING: ``` B.A. Nos.5046 & 5040 of 2023 3 ## `ORDER` ## `[Bail Appl. Nos.5046/2023, 5040/2023]` ... ``` These bail applications are submitted by the ``` ``` 1[st] accused in Crime No.127/2023 of Moozhiyar Police Station, who is also the 1[st] accused in ``` ``` O.R.No.1/2023 of Pachakkanam Forest Station, ``` ``` Pathanamthitta. Both these applications are being ``` ``` considered and disposed of by way of a common ``` ``` order because the petitioner in both these bail applications is the same person, and the crimes ``` ``` were registered based on the very same act of the ``` ``` petitioner and the other accused, and being ``` ``` investigated by two different investigating ``` ``` agencies. ``` ``` 2.B.A.No.5040/2023is filedby the petitioner seeking anticipatory bail in Crime No.127/2023 of Moozhiyar Police Station, which was registered for the offences punishable under ``` B.A. Nos.5046 & 5040 of 2023 4 ``` Sections 295, 295A and 447 r/w—section 34 of the Indian Penal Code (IPC). Bail Application No.5046/2023 is filed by the petitioner seeking anticipatory bail in OR No.1/2023 of Pachakkanam Forest Station, which was registered for the offences punishable under Sections 27,31 and 51 of ``` ``` the Wildlife Protection Act, 1972 and Sections 27(1)e(ii), (iv) of the Kerala Forest Act, 1961. The basic allegation on which both the aforesaid crimes were registered is as follows: On 15.5.2023, the petitioner/1[st] accused, along with the other accused persons, including some of the employees of the Kerala Forest Development Corporation, trespassed into the Ponnambalamedu ``` ``` Forest Area of Periyar Tiger Reserve and performed poojas there, without any authorization, thereby committed the offences. As the petitioner apprehends arrest in connection with the ``` B.A. Nos.5046 & 5040 of 2023 5 ``` investigation of the said cases, which the Police and Forest officials are conducting, these applications were filed. ``` ``` 3.Heard Sri. Nireesh Mathew, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor for the State. ``` ``` 4.The specific contention put forward by the learned counsel for the petitioner is that none of the offences alleged against the petitioner would be attracted. As regards the offences registered by the police under various provisions of the IPC, it was pointed out that there is nothing on record to indicate that the petitioner had committed any act which would injure, destroy, damage or defile any place of worship. There is also no material that the act committed by the petitioner would outrage the religious belief of any class by ``` B.A. Nos.5046 & 5040 of 2023 6 ``` insulting their religion or religious beliefs. It is pointed out that, even as per the prosecution case, what was committed by the petitioner is performing poojas at Ponnambalamedu and under no circumstances the same can be treated as something outraging the religious feelings of any class or any injury or defiling the place of worship. With regard to the offences under the provisions of the Kerala Forest Act and Wildlife Protection Act, it ``` ``` was pointed out that there is absolutely nothing to indicate that the petitioner had entered into the reserve forest or sanctuary with the intention to commit any offence. It is also the case of the learned counsel for the petitioner that the ``` ``` punishments prescribed for all the offences mentioned above are imprisonment for a period below seven years and, therefore, going by the principles laid down by the Hon'ble Supreme Court ``` B.A. Nos.5046 & 5040 of 2023 7 ``` inArnesh Kumar v. State of Bihar and Anr. [2014(3) KLJ 330], the arrest of the petitioner is ``` ``` not necessary. The learned counsel further submits that the petitioner is ready and willing to cooperate with the investigation by making himself available for interrogation. ``` ``` 5.On the other hand, the learned Public Prosecutor would stoutly oppose the aforesaid prayer. It is pointed out that the petitioner trespassed into a wildlife sanctuary by obtaining the assistance of the government officials after bribing them. The specific contention put forward by the learned Public Prosecutor is that the petitioner had conducted poojas unauthorisedly on the Kalthara at Ponnambalamedu, which is a place that is sacred, divine and revered by millions of Lord Ayyappa devotees who come to Sabarimala. It is also pointed out that, 'deepam' is lighted at ``` B.A. Nos.5046 & 5040 of 2023 8 ``` Ponnambalmedu and poojas are also conducted there ``` ``` on Makaravilakku days, which is one of the auspicious days as part of the pilgrimage of Sabarimala. According to him, by performing poojas without any authority at such a sacred ``` ``` place, the petitioner committed the offences, as ``` ``` he insulted the religious beliefs of lakhs of Lord Ayyappa devotees and therefore, the same cannot be treated lightly. It is also contended that the ``` ``` petitioner, by availing the help of the government ``` ``` officials after bribing them, trespassed into the ``` ``` Ponnambalamedu area, a core area of the Periyar Tiger Reserve. In order to make way to the ``` ``` Ponnambalamedu area, the accused persons used a ``` ``` billhook to clear bushes and thereby caused damage to the forest. Accused 2,3,4, 5 and 6 were already arrested, and they have given confession ``` ``` statements to the effect that, it was the ``` B.A. Nos.5046 & 5040 of 2023 9 ``` petitioner who conducted the poojas at the ``` ``` Kalmandapam at Ponnambalamedu. Besides the same, a ``` ``` video showing the petitioner performing the pooja was also circulated on social media. Thus, it is pointed out that there are ample materials indicating the role of the petitioner in the commission of the offences and therefore, the dismissal of the bail application was sought since, according to the learned Public Prosecutor, the custodial interrogation of the petitioner is absolutely necessary. ``` ``` 6.I have carefully gone through the records. When it comes to the offences punishable under Sections 295 and 295A of the IPC, I find some ``` ``` force in the contention put forward by the learned counsel for the petitioner. Both the aforesaid provisions deal with the injury, destruction, damages or defilement of a place of worship or the ``` B.A. Nos.5046 & 5040 of 2023 10 ``` injuries to the religious feelings of a class. However, in this case, even according to the prosecution case, what was conducted by the petitioner is a pooja, and absolutely nothing was produced before this Court which would indicate ``` ``` that performing a pooja at the Ponnambalamedu was prohibited by any of the authorities concerned. In the absence of any materials indicating such a restriction for carrying out any poojas, it is ``` ``` doubtful as to whether the aforesaid offences would be attracted or not. It is to be noted in this regard that the prosecution does not have a case that, apart from the act of offering a pooja, the petitioner or any other accused persons had ``` ``` committed any other act. Therefore, I have some ``` ``` doubt as to whether the offences under Sections 295, and 295A would be attracted or not. However, ``` ``` it is a matter to be investigated, and I am not ``` B.A. Nos.5046 & 5040 of 2023 11 ``` intending to adjudicate on the question as to whether the offences were committed or not by the ``` ``` accused at this stage. At the same time, since there is a shadow of doubt as mentioned above, I am of the view that denial of anticipatory bail to ``` ``` the petitioner for the offences may not be proper. ``` ``` 7.The remaining offence is under Section 447 of the IPC, as far as Crime No.127/2023 of ``` ``` Moozhiyar Police Station is concerned. Even ``` ``` though there are materials for attracting the aforesaid offence, the crucial aspect to be ``` ``` noticed is that the said offence is bailable. ``` ``` Therefore, I do not find any reason to deny ``` ``` anticipatory bail as far as the offences alleged ``` ``` against the petitioner in Crime No.127/2023 of ``` ``` Moozhiyar Police Station. ``` ``` 8.WhencomingtoO.R.No.1/2023of ``` ``` Pachakkanam Forest Station, it is to be noted that ``` ## B.A. Nos.5046 & 5040 of 2023 12 ``` the offences punishable are under Sections 27,31 ``` ``` and 51 of the Wildlife Protection Act, 1972 and ``` ``` 27(1)e(ii), (iv) of the Kerala Forest Act, 1961. It is true that there are some materials ``` ``` indicating that the petitioner had trespassed into ``` ``` the reserve forest and wildlife sanctuary. ``` ``` However, the crucial aspect to be noticed in this ``` ``` regard is that, here again, the specific case of the prosecution is that he trespassed into the prohibited area not for any deforestation activities or to cause any injury to the wildlife or forest, but on the other hand for the purpose of conducting a pooja alone. Of course, it is ``` ``` true that there is an allegation that the ``` ``` petitioner and the other accused had used a billhook to clear the bushes. However, there is absolutely nothing on record indicating any substantial damage being caused to the forest ``` B.A. Nos.5046 & 5040 of 2023 13 ``` area. Besides the above, as far as the offences referred to above are concerned, the maximum punishment that can be awarded is up to 5 years only and, therefore, the contention put forward by the learned counsel for the petitioner by placing reliance upon the principles laid down by the Hon'ble Supreme Court in Arnesh Kumar'scase ``` ``` (supra) also has some relevance. In this regard, it is to be noted that, as held in Arnesh Kumar's ``` ``` case (supra) for the offences punishable with a ``` ``` maximum imprisonment upto seven years, the arrest of the accused is not mandatory and is only warranted if it is absolutely necessary. While ``` ``` considering the necessity of arrest, the gravity ``` ``` of the offence is also a relevant matter which can be taken into account. When considering the nature of allegations that are raised against the ``` ``` petitioner in this case, I am of the view that, ``` ## B.A. Nos.5046 & 5040 of 2023 14 ``` even though there are certain materials indicating ``` ``` the commission of some of the offences alleged against him, I do not find any necessity of detention of the petitioner at the stage of the investigation. The purpose of the investigation would be served if the cooperation of the ``` ``` petitioner with the investigation is ensured. ``` ``` While taking this view, I have also considered the fact that the billhook which the accused persons ``` ``` allegedly used for clearing bushes was already recovered based on the statements given by the ``` ``` other accused persons. In such circumstances, I ``` ``` do not find any necessity for custodial ``` ``` interrogation of the petitioner. However, it is ``` ``` made clear that, all the observations made in the ``` ``` order of bail were for the purpose of deciding the question as to whether the bail is to be granted or not. The Investigation Officer shall conduct ``` B.A. Nos.5046 & 5040 of 2023 15 ``` investigation untrammeled by any of the ``` ``` observations made herein. ``` ``` With the above observations, these bail applications are allowed with the following ``` ``` directions: ``` ``` i)The petitioner shall surrender before the ``` ``` respective Investigating Officers within a period ``` ``` of three weeks from today for subjecting himself to interrogation. ``` ``` ii)After interrogation, the petitioner shall ``` ``` be released on bail on the very same day of ``` ``` surrender upon the petitioner executing a bond for ``` ``` Rs.1,00,000/- (Rupees One Lakh only) with two ``` ``` solvent sureties each for the like sum, to the ``` ``` satisfaction of the Investigating Officer. ``` ``` iii)The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the ``` B.A. Nos.5046 & 5040 of 2023 16 ``` purpose of recovery, if any, as and when demanded. ``` ``` iv)The petitioner shall appear before the ``` ``` Investigating Officer in Crime No 127 of 2023 of ``` ``` Moozhiyar Police, between 10.00 a.m and 11.00 a.m ``` ``` every Friday and he shall also appear before the ``` ``` investigating officer in O.R.No 1 of 2023 in ``` ``` Pachakulam Police Station, on every Saturday between 10.00 a.m and 11.00 a.m, until the filing ``` ``` of the final reports in the respective cases. ``` ``` v)The petitioner shall appear before the ``` ``` Investigating Officers as and when required. ``` ``` vi)The petitioner shall not commit any ``` ``` offences of similar nature while on bail. ``` ``` vii)The petitioner shall not make any ``` ``` attempt to contact any of the prosecution ``` ``` witnesses, directly or through any other person, ``` ``` or in any other way try to tamper with the evidence or influence any witnesses or other ``` B.A. Nos.5046 & 5040 of 2023 17 ``` persons related to the investigation. ``` ``` viii)The petitioner shall not leave India ``` ``` without the permission of the Jurisdictional ``` ``` Court. ``` ``` In case of violation of any of the above ``` ``` conditions, the jurisdictional Court shall be ``` ``` empowered to consider the application for ``` ``` cancellation of bail, if any, and pass appropriate orders in accordance with the law. ``` **==> picture [59 x 14] intentionally omitted <==** ``` ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` ``` pkk ``` B.A. Nos.5046 & 5040 of 2023 18 ## `APPENDIX OF BAIL APPL. 5040/2023` ``` PETITIONER ANNEXURES Annexure1TRUE PHOTOCOPY OF THE FIR IN CRIME NO.127/2023 OF MOOZHIYAR POLICE STATION DATED 16.05.2023 Annexure2TRUE PHOTOCOPY OF THE COMMON ORDER DATED 20.06.2023 IN CRL.MP. NO.3827/2023 PASSED BY THE SESSIONS COURT, PATHANAMTHITTA. ``` B.A. Nos.5046 & 5040 of 2023 19 ## `APPENDIX OF BAIL APPL. 5046/2023` ``` PETITIONER ANNEXURES Annexure1 ``` ``` TRUE PHOTOCOPY OF THE COMMON ORDER DATED 20.06.2023 IN CRL.MP. NO.3828/2023 PASSED BY THE SESSIONS COURT, PATHANAMTHITTA. ```