Alikutty Kalleri v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 703 OF 2024 ``` ``` CRIME NO.04/2023 OF VARAYAL FOREST STATION OFFICE, WAYANAD ``` ``` AGAINST THE ORDER DATED 01.01.2024 IN CRMC NO.959 OF 2023 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `PETITIONER:` ``` ALIKUTTY KALLERI, AGED 57 YEARS S/O. THARUVAYI.K,KALLERI HOUSE, KUNHOME, THONDERNAD,KUNHOME POST,MAMANTHAVADY,,WAYANAD DISTRICT, PIN – 670731 ``` ``` BY ADVS.K.K.DHEERENDRAKRISHNAN M.PROMODH KUMAR N.P.ASHA ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING: ``` _B.A.No.703/2024_ _-:2:-_ Dated this the 27[th] day of March, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the second accused in O.R. No.4/2023 of the Forest Range Office, Varayal, Wayanad, registered against the accused (five in number), for allegedly committing the offences punishable under Sections 9, 39, 50, 51 read with Section 2(16), 2(20), 2(31b), 2(35) & 2(36) of Wild Life Protection Act, 1972. 3. The crux of the prosecution allegation is that: in the intervening night of 22.11.2023 and 23.11.2023, the accused hunted a deer, removed its antlers and, thereafter, caused a deep wound on its neck and killed it. The accused, thereafter, transported the carcass in _B.A.No.703/2024_ _-:3:-_ a car bearing No.KL-72-D-3880, through Thalassery – Baveli road. When the vehicle reached Periya 34(Alar junction), the Forest officials, on getting a secret information, attempted to intercept the vehicle. But, the accused, had refused to stop the vehicle, instead, dashed the vehicle against the Forest officials and caused injuries to two of them, and damaged a vehicle, causing a loss of Rs.10,000/- to the Forest Department. Thus, the accused have committed the above offences. 4. Heard: Sri. K.K. Dheerendrakrishnan, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The very fact that the petitioner has been subsequently implicated in the _B.A.No.703/2024_ _-:4:-_ crime shows the falsity of the case. A reading of the Seizure Mahazar prepared by the forest officials would show that the forest officials have deliberately registered the case. There are a lot of disputes between the de-facto complainant and the petitioner, in view of the cultivation that has been conducted in the petitioner’s property which is situated near forest land. The petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter-alia, contending that in the preliminary investigation has been conducted, it is confirmed that the vehicle that is involved in the crime belongs to the son of the petitioner. The investigation has revealed that there are five accused in the case. The investigation has also unveiled that _B.A.No.703/2024_ _-:5:-_ there were frequent telephone communications between the accused. Even though notices under Section 160 of the Code were issued to the accused, none of them are there in the addresses, because they are absconding. The Forest officials have identified the accused through photographs. The CCTV footages clearly show that the petitioner was in the vehicle, which hit the Forest officials and carried the carcass. The accused have consciously and illegally poached the animal on the night of November 22, 2023, knowing that the police and the forest officials were engaged in the ‘Nava Kerala Sadas’ that was held in Wayanad. The witnesses have given statements that on 23.11.2023 morning, the petitioner had reached the house of one ‘Sabir’ in the vehicle in question. The accused in the crime have criminal antecedents. The postmortem certificate of the animal shows that it had sustained gunshot which pierced its heart. The statements of the _B.A.No.703/2024_ _-:6:-_ witnesses, CCTV footages, and the call records all substantiate the active involvement of the petitioner in the crime. The petitioner’s application for pre-arrest bail has been dismissed by the learned Sessions Judge. If the petitioner is granted an order of pre-arrest bail, he will certainly flee from the country. The petitioner's custodial interrogation is necessary, the vehicle has to be identified, and the gun used to poach the animal has to be recovered. The carcass as well as the antlers of the animal have also to be identified. If the petitioner is granted an order of pre-arrest bail, it would also sabotage the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that the accused had hatched a conspiracy and had shot a spotted deer and, thereafter, killed it and removed its antlers. While they were attempting to escape with the carcass, the Forest officials made an attempt to intercept the _B.A.No.703/2024_ _-:7:-_ vehicle. Yet, the accused without stopping the vehicle, hit the Forest officials and their vehicles causing injuries to the Forest officials and damage to the Departmental vehicle. 8. On an appreciation of the materials on record, prima-facie there are incriminating materials to show the involvement of the petitioner in the crime, especially the CCTV footages, the statements of the witnesses, and the mobile phone call records. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the _B.A.No.703/2024_ _-:8:-_ power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx” ## 10. In **Jai Prakash Singh v. State of Bihar and** **another** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being _B.A.No.703/2024_ _-:9:-_ an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the seriousness, gravity, and nature of the accusations levelled against the petitioner, that the investigation in the case is only at its preliminary stage, that recovery is to be effected, and that the petitioner’s custodial interrogation is necessary, I am certain that there are no convincing grounds for the petitioner to invoke the extraordinary jurisdiction of _B.A.No.703/2024_ _-:10:-_ this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/26.03.24 //True copy// P.A. To Judge