Bail Applications (B.A. Nos. 1265 of 2020 and 1498 of 2020) filed in the High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **Bail Appl..No.1265 OF 2020** **CRIME NO.17/2019 OF Kumaly Forest Range Office , Idukki** ## **PETITIONER:** **JOBIN AGED 40 YEARS MADATHANIYIL HOUSE, SPRING VALLEY, IDUKKI DISTRICT** **BY ADV. SRI.T.A.UNNIKRISHNAN** ## **RESPONDENT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** **SR.PP. D. CHANDRASENAN AND SR.PP. B. JAYASURYA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.07.2020, ALONG WITH Bail Appl..1498/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.2165 & 1498 052 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** **Bail Appl..No.1498 OF 2020** **CRIME NO.17/2019 OF Kumaly Forest Range Office , Idukki** ## **PETITIONERS:** **1 SHAJI VARGHESE, AGED 36 YEARS S/O.VARGHESE, KARAKKATTU HOUSE, SPRING VALLEY, KUMALY, IDUKKI - 685 509. 2 SHINU JOSEPH, AGED 37 YEARS S/O.JOSEPH, KUTTIVELY HOUSE, KUMALY, IDUKKI DISTRICT - 685 509. BY ADVS. SRI.GEORGE MATHEW SHRI.PRAVEEN S. SRI.M.D.SASIKUMARAN SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. SHRI.GEORGE K.V.** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 THE FOREST RANGE OFFICER, KUMALY RANGE, KUMALY, IDUKKI DISTRICT - 685 509, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.07.2020, ALONG WITH Bail Appl..1265/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.2165 & 1498 052 of 2020 3 ## **P.V.KUNHIKRISHNAN, J** -------------------------------------- B.A.No.1265 & 1498 of 2020 -------------------------------------Dated this the 10[th ] day of July, 2020 ## **O R D E R** These Bail Applications are filed under Section 438 of Criminal Procedure Code. 2. The Bail Applications are filed by accused Nos.1 to 3 in OR No.17 of 2019 of Forest Range Office, Kumaly. The above case is registered against the petitioners alleging offence punishable under Sections 2(16), 2(36), 9, 39, 50 & 51 of the Wild Life Protection Act, 1972. 3.The prosecution case is that on 4.10.2019, the forest officials got an information that an offence under the Wild Life Act is committed at 66[th] Mile, in Kumaly, Chellarcode Section. The forest officials inspected the place owned by one Mr.Jose Purakkunnel and found a carcass of Sambar deer and prepared a mahazar and registered a wild life offence as O.R 17 of 2019. B.A.No.2165 & 1498 052 of 2020 4 4. Heard the counsel for the petitioners and the Public Prosecutor. 5. The counsel for the petitioners in B.A.No.1498 of 2020 submitted that in connection with this case one Vijo N.V was arrested by the forest officials. His statement was recorded by the forest officials on 4.10.2019. He was an autorickshaw driver and that autorickshaw belongs to the 1[st] petitioner in B.A.No.1498 of 2020. He was implicated as an accused in OR No.17 of 2019 and produced before the Judicial Magistrate of the First Class, Peerumedu. He produced a copy of the remand report of the said Vijo N.V. The counsel submitted that Vijo.N.V was subsequently released on bail by the learned Magistrate. The counsel submitted that based on the statement of this Vijo, the petitioners were implicated as accused. The counsel also submitted that the petitioners has no connection with the alleged incident. Nothing is seized from the petitioners. 6. The Public Prosecutor seriously opposed these bail applications. The Public Prosecutor submitted that the ## B.A.No.2165 & 1498 052 of 2020 5 informant in this case was brutally attacked by the accused and his men and an offence u/s.307 IPC is registered against them. According to the Public Prosecutor, the petitioners are part of a mafia and therefore, this Court may not exercise the jurisdiction u/s.438 Cr.P.C. 7. I perused the report submitted by the Public Prosecutor in this case. It is an admitted case that this bail application is pending before this Court from February, 2020 onwards. The forest officials were not able to arrest the petitioners. The Public Prosecutor submitted that the petitioners are absconding. The Public Prosecutor submitted that a notice was issued to the petitioners for appearing before the forest officials. But they refused to appear before the forest officials. They are absconding. The Public Prosecutor submitted that they were not able to arrest the petitioners because the petitioners are absconding. I specifically put a question to the Public Prosecutor whether the petitioners are involved in any other case. The Public Prosecutor submitted that there is no B.A.No.2165 & 1498 052 of 2020 6 such report. But it is stated that they are habitual offenders. I cannot accept such a statement from the Public Prosecutor. It is true that the offence alleged against the petitioners are serious in nature. A wild life is killed and the allegation is that meat of the same is distributed by the petitioner. In such situation the crime is to be investigated in detail. The Public Prosecutor conceded that they are not able to arrest the petitioners. Moreover, it is admitted that some carcass already seized. Therefore, there is no question of any further recovery in this case. Even if any such recovery is necessary the Investigating Officer can do the needful, when the petitioner surrender before him. The Public Prosecutor submitted that there are some other accused also involved in this case. For that purpose interrogation may be necessary for which there can be a direction to the petitioners to surrender before the Investigating Officer within 10 days. The Public Prosecutor submitted that the petitioners may influence the witnesses in this case. To protect that there can be a direction to the petitioners not to enter the Kumaly Forest Range Office till the investigation and final report is submitted before B.A.No.2165 & 1498 052 of 2020 7 the competent court. I took this stand because the forest officials were not able to arrest the accused till now, eventhough the incident happened on 4.10.2019. In such situation this bail application can be allowed directing the petitioner to surrender before the Investigating Officer so that the investigation can be completed immediately. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 9. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to B.A.No.2165 & 1498 052 of 2020 8 bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioners shall appear before the Investigating Officer within 10 days from today. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.1,00,000/-(Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall co-operate with the investigation and shall not threaten or B.A.No.2165 & 1498 052 of 2020 9 attempt to influence the witnesses or tamper with the evidence. 4. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 5. The petitioners shall not enter the jurisdiction of Kumaly Forest Range till final report is filed in OR No.17 of 2019. 6. The petitioners shall surrender their passport before the Investigating Officer. If there is no passport, they will file an affidavit to that effect before the Investigating Officer. 7. The petitioners shall appear before the Kumaly Forest Range Office on all Mondays at 10 a.m till final report is filed. The petitioners can enter the Kumaly Forest Range only for B.A.No.2165 & 1498 052 of 2020 10 the appearance before the Investigating Officer. 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** cms