Antony, Sreejith, Jamsheed and Muhammed Ali v. State of Kerala and Kalpetta Range Forest Officer, Wayanad

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ## **`BAIL APPL.NO.3249 OF 2024`** ``` CRIME NO.03/2024 OF Kalpetta Forest Range Office, Wayanad ``` ``` ---------------- ``` ## **`PETITIONERS/ACCUSED Nos.6 TO 9 :-`** - **`1 ANTONY, AGED 43 YEARS S/O.HENTRY, SUGHANDHAGIRI, 4TH UNIT, VYTHIRI, WAYANAD, PIN - 673 576`** - **`2 SREEJITH, AGED 30 YEARS S/O.SREEDHARAN, SUGHANDHAGIRI, 4TH UNIT, VYTHIRI, WAYANAD, PIN - 673 576`** - **`3 JAMSHEED, AGED 26 YEARS S/O.ALI, PARAKKAL HOUSE, UNNIKULAM, THAMARASSERY, KOZHIKODE, PIN - 673 574`** - **`4 MUHAMMED ALI, AGED 56 YEARS S/O.AHAMMEDKUTY, MUNDICHIPARA, KANNUTTIPPARA, CHAMAL, KEDAVOOR, KOZHIKODE, PIN - 673 573`** - **`BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP ABIN BENNY ANJU R S. K C MOHAMED RASHID BIJITHA B. BOSE`** ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031`** - **`2 RANGE FOREST OFFICER, KALPETTA RANGE WAYANAD, PIN - 673 121`** ## **`SRI.C.S.HRITHWIK, SR.PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` - **`29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` BAIL APPL.NO.3249 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 29th day of May, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioners are the accused Nos.6 to 9 in OR No.3/2024 of Kalpetta Range Forest Office, Wayanad, registered against the accused (9 in number) for allegedly committing the offences punishable under Section 27(1)(e) (iv) of the Kerala Forest Act and Sections 27(1), 29, 31 and 2(15), 2(16), 9, 39(1) and 20, 50, 51 of the Wildlife (Protection) Act, 1972. 3. The essence of the prosecution case is that; on 02.03.2024, at around 1 hours, while the de facto complainant - the Kalpetta Section Forest Officer, and party were conducting a patrolling duty at Sugandhagiri Chennayakkavala, a forest land coming under the Kalpetta Range, South Wayanad Division, they found that the ``` BAIL APPL.NO.3249 OF 2024 ``` ``` -: 3 :- ``` accused had trespassed into the forest land with a gun and other articles. On seeing the patrolling party, the accused 6 to 9 ran away from the scene of occurrence. Only accused 1 to 5 were arrested from the spot. Since the accused had trespassed into the forest land, they have committed the offences. 4. Heard; Sri.P.V.Anoop, the learned counsel for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There are no materials to substantiate the fact that the petitioners had trespassed into the forest land. The Investigating Officer has deliberately implicated the petitioners as accused in the crime due to his previous animosity towards them. It was at the instance of the petitioners that the Investigating Officer was suspended from service. The petitioners' custodial interrogation is not necessary and no recovery is ``` BAIL APPL.NO.3249 OF 2024 ``` ``` -: 4 :- ``` to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to substantiate that the petitioners were there with the accused 1 to 5 on 02.03.2024 at 1 hours. It is on seeing the patrolling party that the petitioners took to their heels. The petitioners were subsequently identified and have been implicated as accused in the crime. The petitioners' custodial interrogation is necessary for the proper investigation of the crime. If the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioners is that they along with accused 1 to 5 had trespassed into the forest land and were attempting to do some illegal activities. On seeing the forest party, the petitioners ran away from the scene of occurrence. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.3249 OF 2024 ``` ``` -: 5 :- ``` 8. The petitioners had filed Crl.M.C. No.230/2024 before the Court of Session, Kalpetta for an order of prearrest bail. By Annexure A order, the learned Sessions Judge dismissed the application on the finding that the petitioners' custodial interrogation is necessary for the proper investigation. 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 of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679)._ _xxx xxx xxx xxx xxx_ ``` BAIL APPL.NO.3249 OF 2024 ``` ## `-: 6 :-` _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”._ 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 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 ``` BAIL APPL.NO.3249 OF 2024 ``` ``` -: 7 :- ``` that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioners, that the petitioners' custodial interrogation is necessary and the apprehension projected by the prosecution that if the petitioners are granted an order of pre-arrest bail, it would hamper the investigation, I am convinced that the petitioners have not made out any exceptional ground to invoke the extraordinary 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. In the result, the bail application is dismissed. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced ``` BAIL APPL.NO.3249 OF 2024 ``` ``` -: 8 :- ``` before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. **Sd/C.S.DIAS, JUDGE** Jvt/29.5.2024 ## **`APPENDIX OF BAIL APPL.3249/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure ATRUE COPY OF THE ORDER PASSED BY THE COURT OF SESSIONS DIVISION, KALPETTA, WAYANAD IN CRIMINAL MISCELLANEOUS CASE NO.230/2024 DATED 03.04.2024 ```