K. J. Anish v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 BAIL APPL. NO. 2107 OF 2024 ``` ``` CRIME NO.2/2024 OF Erumeli Forest Range Office, Kottayam ``` ## **`PETITIONER/S:`** ``` K.J. ANISH, AGED 41 YEARS S/O. P.T. JOSE, RESIDING AT KOCHUPALATHANATH (H), S.H. MOUND P.O., KOTTAYAM DISTRICT, PIN - 686006 BY ADVS. MANUEL KACHIRAMATTAM MERRY GEORGE ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BA No. 2107 of 2024 ``` ``` 2 ``` ## **`C.S.DIAS, J.`** ``` ------------------------------- B.A.No.2107 of 2024 -------------------------------------- Dated this the 22[nd] day of May, 2024 ``` ## **`O R D E R`** ``` The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short,‘Code’), for an order of pre-arrest bail. ``` ``` 2.The petitioner is the accused in OR No. 2/2024, Placherry Forest Station, Erumeli Forest Range, Kottayam Forest Division, registered against the accused for allegedly committing the offences punishable under Sections 2 (16), 9, 39 (1) (2) (3) 42, 43, 49 and 51 of the Wild Life (Protection) Act, 1972 (Amendment Act, 2022). ``` ``` 3. The essence of the prosecution case is that, on 09.03.2024, the Divisional Forest Officer Kottayam received a secret information that two persons were conducting illegal trade of parrots in a pet shop at Nagampadam, Kottayam. He accordingly informed the Range Forest Officer Erumely to take follow-up action. Accordingly, Station House Officer, Forest Station, ``` ``` BA No. 2107 of 2024 ``` ``` 3 ``` ``` Plachery, inspected the pet shop and found a man (accused) and a woman in the pet shop. The accused had admitted that he was the owner of the pet shop. On asking him whether he was selling parrots, he denied the same. Accordingly, the Investigating Officer conducted a search in the pet shop and found eleven parrot chicks in the shop. Then the accused confessed to the Investigating Officer that he had purchased parrot chicks from a street vendor in Tamil Nadu. When the Investigating Officer attempted to arrest the accused, he fled away from the shop. The woman (employee) in the shop informed the Investigating Officer that accused was the owner of the shop. Thus, the accused has committed the above offences. ``` ``` 4.Heard; Sri. Manuel Kachiramattam, the learned counsel for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. ``` ``` 5.The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The shop does not belong to the petitioner. The original licensee of the ``` ``` BA No. 2107 of 2024 ``` ``` 4 ``` ``` shop is no more. The pet shop is being conducted by the wife of the deceased. The Investigating Officer has falsely implicated the petitioner out of his previous animosity. In any given case, 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 the petitioner is the accused in the crime, who was very much present in the pet shop at the time of search. It is during the course of search that the petitioner took to his heels. The petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would torpedo the investigation. Hence, the application may be dismissed. ``` ``` 7. The prosecution allegation against the petitioner is that, he was found selling parrots chicks in violation of the Act. When the Investigating ``` ``` BA No. 2107 of 2024 ``` ``` 5 ``` ``` Officer attempted to arrest him, he fled away from the scene. Thus the accused has committed the above offences. ``` ``` 8. 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` ``` 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 ``` ``` BA No. 2107 of 2024 ``` ``` 6 ``` ``` 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. InJai 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 that the applicant has been falsely enroped in the crime and his liberty is being misused. ``` ``` 10.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 leveled against the petitioner, that the petitioner’s custodial interrogation is necessary and that the investigation in the case is only at a nascent stage. I am convinced that the petitioner has ``` ``` BA No. 2107 of 2024 ``` ``` 7 ``` ``` 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. Resultantly, the bail application is dismissed. ``` ``` Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 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 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/- ``` ``` C.S.DIAS JUDGE ``` ``` SM ``` ``` BA No. 2107 of 2024 ``` ``` 8 ``` ## **`APPENDIX OF BAIL APPL. 2107/2024`** ``` PETITIONER ANNEXURES Annexure A1 ``` ``` THE TRUE COPY OF THE OR NO. 2/2024 PFS OF PLACHERRY FOREST STATION, ERUMELI FOREST RANGE, KOTTAYAM FOREST DIVISION DATED 9/3/2024 ```