SHAJI V AGED 57 YEARS KAVERI 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.6635 OF 2020** **CRIME NO.2/2020 OF SOCIAL FORESTRY RANGE, KOLLAM PETITIONER/S:** **SHAJI V AGED 57 YEARS KAVERI, PUTHANKULAM, PUTHUKULAM VILLAGE, KOLLAM 691302** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.MANUEL KACHIRAMATTAM** ## **RESPONDENT/S:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **OTHER PRESENT:** ## **SRI.NAGARAJ NARAYANAN-SPL PP (FORESTS)** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-032021, ALONG WITH Bail Appl..6636/2020, Bail Appl..6637/2020, Bail Appl..6796/2020, THE COURT ON 23-03-2021 PASSED THE FOLLOWING:** ## **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.6636 OF 2020** **CRIME NO.4/2020 OF SOCIAL FORESTRY RANGE, KOLLAM PETITIONER/S:** **SHAJI V AGED 57 YEARS KAVERI, PUTHANKULAM, PUTHUKULAM VILLAGE, KOLLAM 691302** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.MANUEL KACHIRAMATTAM** ## **RESPONDENT/S:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY PUBLIC PROSECUTOR R1 BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-032021, ALONG WITH Bail Appl..6635/2020, Bail Appl..6637/2020, Bail Appl..6796/2020, THE COURT ON 23-03-2021 PASSED THE FOLLOWING:** ## **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.6637 OF 2020** **CRIME NO.5/2020 OF SOCIAL FORESTRY RANGE, KOLLAM PETITIONER/S:** **SHAJI V AGED 57 YEARS KAVERI, PUTHANKULAM, PUTHUKULAM VILLAGE, KOLLAM 691302** **BY ADVS. SRI.MANUEL KACHIRAMATTAM SRI.P.VIJAYA BHANU (SR.)** ## **RESPONDENT/S:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **R1 BY PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-032021, ALONG WITH Bail Appl..6635/2020, Bail Appl..6636/2020, Bail Appl..6796/2020, THE COURT ON 23-03-2021 PASSED THE FOLLOWING:** ## **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.6796 OF 2020** CRIME NO.6/2020 OF SOCIAL FORESTRY RANGE, KOLLAM **PETITIONER/S:** **SHAJI V AGED 57 YEARS KAVERI HOUSE, PUTHANKULAM, PUTHUKULAM VILLAGE, KOLLAM 691302** **BY ADVS. SRI.MANUEL KACHIRAMATTAM SRI.P.VIJAYA BHANU (SR.)** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-032021, ALONG WITH Bail Appl..6635/2020, Bail Appl..6636/2020, Bail Appl..6637/2020, THE COURT ON 23-03-2021 PASSED THE FOLLOWING:** ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -5- ## **COMMON ORDER** **[ Bail Appl..6635/2020, Bail Appl..6636/2020, Bail Appl..6637/2020, Bail Appl..6796/2020 ]** **Dated this the 23rd day of March 2021** The applicant is arrayed as accused in four crimes, crime Nos. 2, 4, 5 and 6 of 2020 of Social Forestry Range, Kollam, all for having allegedly committed offences punishable under Sections 2, 39, 40, 42, 43, 49, 50 and 51 of the Wildlife Protection Act, 1972 and Rules 7 (9), 8 (8) 9 (3), 9 (10) and 9 (11) of the Kerala Captive Elephant Management Rules, 2012. 2. The applicant approached this Court for anticipatory bail in all the aforesaid crimes. The learned Special Government Pleader (Forests), Sri Nagaraj Narayanan produced a number of documents to substantiate the prosecution case that the elephants in captivity of the ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -6- applicant were deceitfully obtained by concocting documents in order to get over the existing law banning commercial sale of elephants. The learned Senior Counsel Shri.P. Vijayabhanu, appearing for the applicant in all the cases instructed by Advocate Manual Kaciramattom wanted time to peruse the documents produced by the learned Prosecutor. It was submitted that the applicant is anticipating imminent arrest as the forest officials have reached the place where he is residing in Mumbai and are likely to record his arrest any time. 3. In view of the imminent threat of arrest pending hearing of this anticipatory bail applications, this Court passed an interim order on 25/02/2021 directing that in the event of his arrest the applicant shall be released on interim anticipatory bail on execution of bond for 1 lakh with two₹ solvent sureties for like amount each, in each of the cases subject to conditions under Section 438 (2) of the Cr.P.C. ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -7- 4. The learned Special Public Prosecutor submitted that there is every possibility that he is already arrested. In view of that submission, it was made clear that in case he is already arrested on the record that was produced before this Court, this order will not have any effect. 5. When the matter came up for hearing on 02/03/2021, the learned Senior Counsel submitted that the applicant has been arrested in all the aforesaid cases in the evening of 25/02/2021. A relative of the applicant, Ms.Divya A.R was intimated and informed by Sri.Doki Adimallaiah, Wildlife Inspector, Wildlife Crime Control Bureau, Navi Mumbai that the accused was placed under arrest by his office on 25/02/2021 (11.00 hours). He was arrested not only in the aforesaid 4 cases but also in Crime 07/2020 of Social Forest Range, Kollam. The learned Senior Counsel also produced before this Court the copy of the application for grant of transit warrant filed before the Judicial First ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -8- Class Magistrate Court Vashi, Navi Mumbai to transport the accused in the aforesaid crimes to Kerala. In that application it is stated that by evening 6 PM on 24/02/2021, the applicant was found by the team constituted for his arrest at Flat No. 102, plot No. 35, Sector-15, Kurumanchal Cooperative Society, Koparkhairene, Navi Mumbai-400709. On verifying his identity, he was detained and taken to the office of the Regional Deputy Director, WCCB, Western Region, Navi Mumbai for further interrogation in this matter. It is submitted that immediately the detention of the accused was intimated to the Principal Chief Conservator of Forests (Wildlife) and Chief Wildlife Warden, Kerala Forest Department vide communication No.L-16012/15/2014/ Vol.7/2021/921 dated 24/02/2021 and request to the Kerala Forest Department to take over the said accused from the custody of WCCB. Subsequently he was placed under arrest at 11 AM on 25/02/2021 and the same was intimated to his ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -9- relative. 6. The application for anticipatory bail has been aborted because of the arrest of the accused. The learned Senior counsel submits that it is in contempt of the order of this Court granting an interim anticipatory bail that the applicant was arrested on 25/02/2021. The Forest officials from Kerala were on their way to Mumbai and it cannot be believed that the learned Special Government Pleader did not get information regarding the arrest of the accused at 11:00 AM while he was making submissions before this Court. The learned Senior counsel would therefore submit that action is to be taken against the officers for contempt of this Court's order and appropriate order may therefore be made by this Court. 7. The respondent has filed a counter affidavit supporting documents and the learned Special Government Pleader submits that the accused was issued notice to ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -10- appear before the investigation team on 05/10/2020. He did not appear and was since then absconding. Considering the gravity of the offence a Special Investigation Team was constituted and the Chief Wildlife Warden alerted the National Crime Control Bureau (Western Region) Navi Mumbai vide letter dated 19/02/2021 informing them that the accused is hiding somewhere in Mumbai. Information was received by the WCCB that the applicant was hiding in a flat in Navi Mumbai and he was taken into custody on 24/02/2021 at 6:30 PM and brought to the office of WCCB for further enquiry. His arrest was recorded on the following day (25/02/2021) at 11 AM and thereafter accused was taken for medical examination to be produced before the jurisdictional Magistrate for a transit warrant. He was taken to Municipal Corporation Hospital, Nerul, Navi Mumbai by 2:45 PM. On arrival of the Doctor it was informed that the hospital has no procedure for issuance of medical legal ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -11- certificates and they were directed to proceed to the Navi Mumbai Municipal Corporation Hospital, Vashi situated at a distance of 10 kilometres away from the earlier hospital and reached there by about 3:56 PM. After completing the procedures like ECG Covid 19 test etc; he was taken to the Judicial First Class Magistrate Court IX , Vashi by around 5:30 PM together with the arrest memo indicating that he was arrested at 11:00 AM on that day. It is submitted that by the time this Court passed the order of interim anticipatory bail at about 2:40 PM, the arrest was already completed and the paperwork required for producing the accused before the Magistrate was being proceeded with. There was no malafide intention on the part of the arresting authority to violate the orders of this Court. It is submitted that the details of the arrest could not be communicated to the Forest Liason office, High Court of Kerala for the reason that the Wildlife Inspector who had arrested the accused had ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -12- already proceeded to producing him before the Magistrate. The officers of the WCCB in Navi Mumbai also did not know about the posting of the anticipatory bail application before this Court on 25/02/2021 and hence it is prayed that the delay in producing the record of arrest before this Court when the matter was taken up for hearing may be condoned. 8. Even the arrest of the accused merely because interim bail is denied, in a matter where notice has been issued to the Forest Officials would virtually render the anticipatory application infructuous. Traditional view was that once an anticipatory bail is filed, till it is disposed off, the person should not be arrested. 9. The proviso should be read down and it should mean that only where the anticipatory bail application is rejected, either ex-parte or after notice and if the arresting Officer, under Section 157(1) Cr.P.C., considers arrest ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -13- necessary, then and then alone should arrest be done. Even in cases where merely because anticipatory bail application is rejected, a person should not be arrested for the reason that he set out certain averments as the basis for apprehending arrest. However arrest of an applicant seeking anticipatory bail even in case the Court has not passed any interim order providing protection against his arrest would render the pending bail application infructuous even without going into its merits. In the instant case there was already an order of interim anticipatory bail granted in favour of the applicant. Such arrest may have the effect of over-reaching the Court and the judicial process. But then, it is submitted that the arrest was already recorded prior to the Interim order passed by this court. It is because a doubt was expressed about that by the learned Special Government Pleader that it was made clear by this court that the order shall have no effect in case the arrest is ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -14- already made. In case the accused was arrested at the time the application for bail was taken for consideration, the interim order of anticipatory bail would never have been passed by this Court. However, he was not informed about the arrest although it was informed that he has been taken into custody for interrogation, the previous day. In view of the fact that the arrest was officially recorded at 11 AM, the interim order was passed only subsequent to that. This Court cannot go into the details of the veracity of the arrest records prepared by the arresting officer, though some doubts do arise. 10. The Supreme Court has held that the provisions of S.438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S.437 or ## B.A. Nos. 6635, 6636, 6637 and 6796/2020 -15- S.439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. (see _**Shri Gurbaksh Singh Sibbia and others Vs State of Punjab [(1980) 2 SCC 565]**_ and _**P Chidambaram v. Directorate of Enforcement [(2019) 9 SCC 66**_ )]. Under the circumstances, these applications have also become infructuous, and are accordingly dismissed as infructuous. **Sd/-** **ASHOK MENON** **JUDGE** jg