Bejoy Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **Bail Appl..No.2033 OF 2021** **CRIME NO.5/2020 OF Thenmala Forest Range Office, Kollam** ## **PETITIONER/S:** **BEJOY MATHEW AGED 59 YEARS SON OF M. M MATHEW, SENIOR MANAGER, NAGAMALLAY ESTATE, KALTHURITTY P.O, PUNALUR, KOLLAM 691309 BY ADVS.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.SACHIN JACOB AMBAT SRI.R.GITHESH SRI.S.HARIKRISHNAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682031 2 THE RANGE FOREST OFFICER FOREST RANGE OFFICE, THENMALA 691308** ## **SMT.V.SREEJA-PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA 2033/2021 -2- ## **O R D E R** ## **Dated this the 23rd day of March 2021** Application for anticipatory bail under Section 438 Cr.PC. 2. The applicant at present is the sole accused in the aforesaid crime. He has approached this Court with this successive application for anticipatory bail under Section 438 Cr.PC. The only question that is to be determined here is whether the applicant is entitled to anticipatory bail by establishing that there is a change of circumstances that enables him to file a second application for anticipatory bail. It is a settled position of law that the applicant can file a successive bail application even for an anticipatory bail or for regular bail. But even though there is room for filing a subsequent application in cases where earlier applications have been rejected, the same can be done if there is a change in the facts situation or in law, which requires the earlier view being BA 2033/2021 -3- interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused, who has been denied bail earlier, can move a subsequent application. (See _**Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr (AIR 2005 SC 921** ))_ . 3. In the instant case, the applicant states that he was under the impression that he is arrayed as the first accused with a person named Rajesh as the second accused. The aforesaid Rajesh was the first person to approach this Court with an application for anticipatory bail by filing BA No.792/2021 and the learned Prosecutor, under instructions, submitted that the said Rajesh is a person, who had supplied meat to the first accused, the applicant herein, and that meat, that was supplied by him contained meat of wild boar and Sambar deer, in consequence, to which the application filed by the said Rajesh was dismissed directing him to surrender before the investigating officer within two weeks. However, when he surrendered before the jurisdictional Magistrate and expressed his BA 2033/2021 -4- apprehension that he may be subjected to torture in case he surrenders before the forest officials, the Forest Range Officer concerned filed a statement before the jurisdictional Magistrate stating that Rajesh has not yet been arrayed as an accused in the crime and therefore, he does not intend to arrest him. The said Rajesh is, therefore, not an accused in this Crime, despite the fact that his application for pre-arrest bail filed by him was opposed with all vehemence under instructions of the second respondent, Forest Range Officer. 4. In view of the changed circumstance that the person who allegedly supplied wild meat to the applicant has not been made an accused, the learned Senior Counsel Sri S. Sreekumar seeks bail for the applicant. The second respondent was directed to file an affidavit before this Court, in consequence to which he has filed an affidavit stating that he was under the bonafide impression that Rajesh is a person who had supplied wild meat to the first accused, and therefore, BA 2033/2021 -5- the bail application was opposed. He has now realised that there is no material to indicate his involvement in the crime. 5. Heard the learned Senior Counsel Sri S.Sreekumar and Smt.Sreeja V., the learned Public Prosecutor. 6. The manner in which the second respondent has made submissions before the court and instructed the Public Prosecutor lacks credibility, and he has instructed the Prosecutor in such a lackadaisical and irresponsible manner without realising the consequence of such submissions. This indicates that he has much to hide. The affidavit filed by him is not worth the paper it is written on. 7. I direct the Divisional Forest Officer, Thenmala to take note of this and take appropriate departmental action against the said Forest Range Officer for misleading this Court by stating that Rajesh was the second accused and in consequence of which, the application for anticipatory bail filed by BA 2033/2021 -6- him was opposed by the Prosecutor with vehemence, resulting in the dismissal of the same. 8. Coming to the present successive application for bail, I find that this Court had dealt in great detail the reasons why the applicant, who is the Senior Manager of M/s. Harrison and Malayalam Plantation Limited, consisting of extensive rubber plantations, is not entitled to the extraordinary and discretionary relief of anticipatory bail in this forest case. The Forest officials had committed a raid in his house. He was not present. But they waited for him. He did not appear within a reasonable time and therefore, in the presence of his wife, his house was searched and a large quantity of meat was seized from his refrigerator, which when subjected to DNA examination, one part of it turned out to be cattle meat, while the remaining two parts were meats of wild boar and sambar deer, both protected species under the Wildlife Act. Considering the fact that wild meat was seized from his house, the application for anticipatory bail filed by BA 2033/2021 -7- him was rejected. 9. The only change in circumstances pointed out is that there is no second accused in the crime at present, and the applicant is now the sole accused and his supplier is yet to be identified. 10. I seriously doubt a foul play by the forest officials to exonerate the second accused from the crime for reasons better known to them. However, the fact that Rajesh was exonerated or has not yet been implicated as an accused in this crime will not give any benefit to the applicant and is not a mitigating circumstance, because he was found to be in possession of wild meat for which he owes an explanation, and only his explanation would reveal the person who supplied the meat to him. It is true, as argued by the learned Senior Counsel that there is no allegation that the applicant was himself involved in poaching. But the person in possession of wild meat owes an explanation regarding how it came into his possession, and for that, he has to be subjected to interrogation. BA 2033/2021 -8- Considering the gravity of an offence under the Wildlife Act, I am still inclined to hold that the applicant is not entitled to the discretionary and exceptional remedy of anticipatory bail. The application is yet again, dismissed. In view of the fact that the second respondent’s investigation of this case is shrouded in mystery, the DFO, Thenmala is directed to entrust the investigation to a superior officer of proven integrity. The applicant is directed to surrender before the investigating officer within a period of two weeks from today, without fail. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg