Anilkumar K.V v. State of Kerala and State Range Officer, Forest Range Office, Kanhangad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 BAIL APPL. NO. 5193 OF 2024** **CRIME NO.6/2024 OF Kanhangad Forest Range Office, Kasargod PETITIONER/S:** **ANILKUMAR K.V, AGED 47 YEARS S/O K.V VELLUNGA, KAYANI, KARINDALAM, KOLLAMPARA, KASARAGOD, PIN - 671314** **BY ADVS. RAHUL SASI NEETHU PREM** **ATHIRA** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF**| ||**KERALA,ERNAKULAM, PIN - 682031**| |**2**|**STATE RANGE OFFICER,**| ||**FOREST RANGE OFFICE ,KANHANGAD, KASARAGOD., PIN –**| ||**671531**| ||**SR.PP.SMT.SEETHA S.**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** ## **======================** ## **B.A No.5193 of 2024** ## **-----------------------------------** ## **Dated this the 23[rd] day of July, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the 3[rd] accused in Occurrence Report No.6/2024 of the Kanhangad Forest Range Office, Kasargod, which is registered against the accused, for allegedly committing the offences punishable under Sections 47A, 47B, 47C, 47F, 47G, 47H and 52 of the Kerala Forest Act. 3. The crux of the prosecution case is that: on 12.06.2024, the accused 1 and 2 were found in possession of 2500 grams of sandalwood pieces. The accused 1 and 2 were arrested on the spot with the sandalwood pieces. During the course of investigation BAIL APPL. NO. 5193 OF 2024 3 and the interrogation of accused 1 and 2 it was learnt that the sandalwood pieces were cut and removed from the property of the 3[rd] accused in furtherance of the common intention of the parties. Thus, the accused have committed the above offences. 4. Heard; Sri. Rahul Sasi, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, the sandalwood pieces were cut and removed by the accused 1 and 2 without the consent or knowledge of the petitioner. The petitioner had complained about the same to the respondents. Surprisingly, the respondents have implicated the petitioner as an accused in the crime. The petitioner has no complicity in the case. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. BAIL APPL. NO. 5193 OF 2024 4 6. The learned Public Prosecutor opposed the bail application. The Investigating Officer has filed a bail objection report, inter-alia, contending that the accused in furtherance of their common intention, had cut and removed the sandal trees from the property of the petitioner in view of the consideration paid by the accused 1 and 2 to the petitioner. There are incriminating materials to substantiate the petitioner's involvement in the crime. The petitioner, on seeing the forest officials, fled away from the scene. It was in the above background, the petitioner could not be apprehended then and there on the spot. The petitioner does not have any criminal antecedents. Therefore, the petitioner's custodial interrogation is not necessary. Hence, the application may be dismissed. 7. The prosecution case is that, the accused 1 and 2, after paying the petitioner consideration, cut and removed sandalwood trees from the petitioner's property. Indisputably the accused 1 and 2 were BAIL APPL. NO. 5193 OF 2024 5 arrested with the sandalwood pieces. The prosecution alleges that the petitioner was at the scene of occurrence when the sandalwood pieces were being removed. But, on seeing the Detecting Officer, the petitioner took to his heels. There are incriminating materials to prove the petitioner's involvement in the crime. The petitioner's custodial interrogation is necessary. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “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 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 BAIL APPL. NO. 5193 OF 2024 6 of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx 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 xxx”. ## 9. 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 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 BAIL APPL. NO. 5193 OF 2024 7 prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an over all consideration of the facts, rival submissions made across the Bar and the materials placed on record, particularly considering the fact that there are incriminating materials to substantiate the petitioner's involvement in the crime, the sandalwood pieces were cut and removed from the petitioner's own property, the petitioner's custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within ten days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner BAIL APPL. NO. 5193 OF 2024 8 moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- rkc/23.07.2024 **C.S.DIAS, JUDGE**