CAUSE TITLE:
PRAKASHAN v STATE OF KERALA
DATE OF ORDER:
27th January 2023
JUDGE(S):
HONOURABLE MR. JUSTICE A. BADHARUDEEN, J
PARTIES:
Petitioner: PRAKASHAN, S/O. CHANDRAN
ANEESH, S/O NARAYANAN
RAGEESH E.K, S/O KRISHNAN
Respondent: STATE OF KERALA. REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA
SUBJECT:
The Hon’ble Kerala High Court (hereinafter referred to as ‘High Court’ or ‘the Court’), has allowed the bail application. It was further said by the court that the results of any investigations conducted by personnel with lower ranks than Assistant Director of Wild Life Preservation and Assistant Conservator of Forests give this Court cause for concern. Therefore, it is imperative that the Wile Life (Protection) Act, 1972 get the proper legal modifications as soon as possible.
IMPORTANT PROVISIONS:
Criminal Procedure Code 1973
- Section 438 - Any person may request the High Court or the Court of Session for an order under this section if they have reason to believe they may be arrested on suspicion of committing a crime for which there is no provision for bail. If the court deems it appropriate, it may order that the individual be granted bail in the circumstance of such arrest.
Wild Life (Protection) Act, 1972
- Section 50(8) - Any official not below the position of Assistant Director of Wild Life Preservation or [an officer not below the rank of Assistant Conservator of Forests permitted by the State Government in this regard] shall have the power and authority, for the reasons of conducting an investigation into any violation of any provision of this Act, regardless of what is stated in any other law currently in effect.
- Section 50(9) - Any information recorded in accordance with sub-section (8) clause (d) must be accepted in any future trial in front of a Magistrate so long as it was obtained in the defendant's presence.
BRIEF FACTS:
- Searches were done based on the information that the first accused had Sambar deer meat kept at his home. Cooked deer meat, raw deer flesh, cooking dishes, and a knife utilized for the reason were all found at the first accused's home during the search.
- The aforementioned presumption led to the registration of a crime alleging the conduct of offences prohibited by Sections 9, 39, 50, 51 r/2 2 (16), 2(20), and 2(36) of the Wild Life (Protection) Act, 1972.
- Then, on the basis of the first accused's confession statement, defendants Nos. 2 through 4 were also charged with the same offence.
- Under section 438 of Cr.P.C bail application was submitted.
QUESTIONS ROSE:
Who is authorised legal person to conduct the investigation and record the information as evidence under the Wild Life Protection Act?
ARGUMENTS ADVANCED BY THE PETITIONER
- The petitioners' learned counsel called attention to a very serious inconsistency in the inquiry and documenting of the testimony by the Investigating Officer in this case, a Forest Ranger, who is not permitted to conduct an investigation or record confessions under Section 50(8) of the Wild Life (Protection) Act, 1972.
- Two court decisions—Luca Beltrami and Others v. State of Kerala and Bombay High Court in Criminal Revision Application No.1 of 2015—were cited by the learned counsel in support of his conclusions.
- No other officer(s) below their position, including the Assistant Director, Wild Life Preservation or (2) the Assistant Conservator of Forests, are authorised in this regard by the State Government.
- As a result, the confession statement that the prosecution utilised to charge accused Nos. 2 through 4 in the crime can only be judged to be a statement made by an inferior officer and lacks any legal standing.
- Further than the confession statement, no other evidence linking the accused Nos. 2 through 4 has been gathered. Given the aforementioned facts, it is unnecessary to detain and/or arrest the petitioners/accused Nos. 2 through 4 in this instance.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The council declared that it is obvious that sub-section (8) did not exist at the time the Wild Life (Protection) Act was passed. However, a change made effective with Act 16 of 2003 allowed the Assistant Director of Wild Life Preservation to issue search warrants, require witnesses to appear, demand the discovery and delivery of records and physical objects, and collect and record evidence.
- Although the learned Public Prosecutor disagreed with this assertion, she did not avoid Section 50(8) of the Wild Life (Protection) Act of 1972.
- It is clarified by the council that following an amendment made by Act 44 of 1991, the State Government granted the Assistant Conservator of Forests the authority to conduct the aforementioned exercise because Section 50(8) permits an executive not below the rank of Assistant Director of Wild Life Preservation or Assistant Conservator of Forests to gather and record evidence.
ANALYSIS BY THE COURT:
- Based on the representation by the council the court is of the view that it should be inclined to grant the petitioners' release on anticipatory bail with specific restrictions.
- Within 10 days of today, the petitioners must appear before the investigating officer, where at time the investigating officer may interrogate the petitioners. The Investigating Officer must present the petitioners well before Jurisdictional Court on the day of submission itself in the case of their arrest.
- Upon such submission, the jurisdictional court will release the petitioners on bail once they have executed bonds totaling Rs. 30,000/- (Rupees thirty thousand only) individually, with the same amount being guaranteed by two acceptable sureties.
- The petitioners must cooperate with the inquiry and be accessible for questioning and investigational purposes as and when the investigating officer orders.
- The petitioners must refrain from intimidating the witnesses or otherwise interfering with the inquiry.
- In order for this bond to be valid, the petitioners must not commit any crimes, and any engagement in illegal activity would cause it to be revoked.
- The Investigating Officer's ability to gather evidence even against petitioners going forward in conformity with the law would not be hindered by the grant of anticipatory bail.
CONCLUSION
In the present case the point of argument by the respondent stated the relevance of section 50 of the wild life protection act 1972. The ability to enter, search, arrest, and detain anybody accused of violating the Wild Life (Protection) Act of 1972 is covered in Section 50. Any officer not below the rank is not authorised to carry out any of the tasks listed in clauses (a) through (d), and any action taken by an officer below their rank is void and has no legal standing. Therefore, the Forest Ranger's confession is invalid and has no legal standing in the present case.
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