Sajeev M v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1828 OF 2024`** ``` OCCURANCE REPORT NO.3/2024 OF PATHANAPURAM FOREST RANGE ``` ## **`OFFICE, KOLLAM`** ## **`PETITIONER/ACCUSED NO.4:`** ``` SAJEEV M AGED 40 YEARS S/O AMEENA BEEVI, THONDIAMAN, PADINJATTINKARA, PATHANAPURAM, KOLLAM., PIN - 689695 BY ADV DENIZEN KOMATH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031`** - **`2 FOREST RANGE OFFICER PATHANAPURAM RANGE OFFICE, PUNALUR .,KOLLAM, PIN - 689695`** - **`3 DEPUTY RANGE OFFICER PUNNALA FOREST STATION, PATHANAPURAM RANGE, PUNALUR DIVISION, PUNALUR ,KOLLAM, PIN - 691305 BY ADV SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1828 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1828 OF 2024 ------------------------------------------------------Dated this the 18[th] day of March, 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 fourth accused in O.R. No.3/2024 of the Pathanapuram Forest Range Office, Kollam, which is registered against the accused (four in number) for allegedly committing the offence punishable under Section 27(l)(e)(iii) of the Kerala Forest Act, 1961. 3. The crux of the prosecution case is that: the forest department had leased a certain extent of forest land to the State Farming Corporation of Kerala, for ``` 3 ``` ``` BAIL APPL. NO.1828 OF 2024 ``` the purpose of doing cashew plantation. However, the accused in furtherance of their common intention, had cut down 130 trees from the forest land. Thus, the accused have committed the above offence. 4. Heard; Sri. Denizen Komath, the learned counsel appearing 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 levelled against him. The petitioner has been falsely implicated in the crime. He was only working as an employee of the State Farming Corporation of Kerala and he carried out the instructions of his superiors, to cut and remove the weeds and wild growth from the cashew plantation. The petitioner has not committed the offence of cutting and removing the trees of the forest ``` 4 ``` ## **`BAIL APPL. NO.1828 OF 2024`** department. In any given case, the petitioner’s custodial is not and no interrogation necessary recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner and the other accused have dishonestly and consciously cut and removed 130 trees of the forest department. Out of said trees, 47 timber loads have been recovered. The investigation is only at the preliminary stage. The petitioner’s custodial interrogation is necessary and recovery is to be effected for the proper and full investigation of the crime. If the petitioner is granted an order of prearrest bail, it would sabotage the entire investigation. Hence, the application may be dismissed. 7. The gravamen of the prosecution allegation is ``` 5 ``` ``` BAIL APPL. NO.1828 OF 2024 ``` that, the petitioner along with the other accused have illegally and dishonestly cut and removed the trees of the forest department from the property that was leased to the State Farming Corporation of Kerala. 8. Recently in **Srikant Upadhyay v. State of Bihar** [2024 KHC Online 6137], the Hon’ble Supreme Court while considering an application for anticipatory bail has made the following observations: “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). ``` 6 ``` ``` BAIL APPL. NO.1828 OF 2024 ``` 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred ``` 7 ``` ``` BAIL APPL. NO.1828 OF 2024 ``` upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar on and the materials placed on record, especially comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and the recovery is to be effected, I am convinced that the petitioner has not made out any exceptional grounds 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. ``` 8 ``` ``` BAIL APPL. NO.1828 OF 2024 ``` 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 moves 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** BR ``` 9 ``` ## **`BAIL APPL. NO.1828 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1828/2024`** ``` PETITIONER’S ANNEXURES Annexure-A1TRUE PHOTOCOPY OF THE FOREST OFFENCES REPORT SUBMITTED BY THE 3RD RESPONDENT DATED 22.02.2024 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT -II (FOREST OFFENCES), PUNALUR ``` ## **`RESPONDENT’S ANNEXURES: NIL`**