Sidhque v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946** **BAIL APPL. NO. 11463 OF 2023** **CRIME NO.06/2023 OF Ezhumkulam Forest Station, Kollam** ## **PETITIONER/S:** **SIDHQUE, AGED 44 YEARS S/O HASABULLA, PALLIKKUNNIL VEEDU, KANNANCODE, NILAMEL.P.O, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691535** ## **BY ADV S.R.SREEJITH** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 11463 OF 2023 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the 2[nd] accused in Occurrence Report No.06/2023 of the Ezhumkulam Forest Range Office, Kollam registered against the accused (two in number), for allegedly committing the offences punishable under Sections 2(11), 2(16), 2(36), 2(37), 9, 39, 48A, 50, 51 &57 of the Wildlife Protection Act, 1972. 3. The crux of the prosecution case is that: on 25.09.2023, the Forest Intelligence, Anchal Forest Range, received a secret information and conducted a search and the 1[st] accused was consequentially arrested with a two-headed red sand boa snake which falls within Schedule-I Part C of the Wild Life (Protection) Act, 1972. As per the confession statement of the 1[st] accused, the 2[nd] accused had possessed the BAIL APPL. NO. 11463 OF 2023 3 reptile at his house and it was the 1[st] accused who assisted him to transport the reptile for sale. The investigation has revealed the active involvement of the 2[nd] accused in planning, coordinating and execution of the crime. It is on seeing the Forest Party, the 2[nd] accused took to his heels after leaving his motor cycle bearing No.KL-16-G 7633. The said motor cycles was taken into custody by the raiding party. The 2[nd] accused is the owner of the said vehicle. Thus, the accused have committed the above offences. 4. Heard; Sri.S.R.Sreejith, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior 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 solely on the basis of the confession statement made by the 1[st] accused which is inadmissible in evidence. The petitioner is the sole BAIL APPL. NO. 11463 OF 2023 4 bread winner of the family. 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. He has stated that there are incriminating materials to substantiate the petitioner's active involvement in the crime. It was the petitioner who took a reptile along with the 1[st] accused. On seeing the forest officials, the petitioner fled away from the scene. The petitioner's vehicle has been taken into custody. The petitioner has different links in trafficking wild life. If the petitioner is granted an order of pre-arrest bail, it would certainly sabotage the entire investigation. The petitioner's custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. In **Siddharam Satlingappa Mhetre v. State** **of Maharashtra** [(2011) 1 SCC 694] the Hon’ble BAIL APPL. NO. 11463 OF 2023 5 ## Supreme Court has held as follows: **111.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire BAIL APPL. NO. 11463 OF 2023 6 available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. ## 8. In **Jai Prakash Singh v. State of Bihar and** **another,** [(2012) 4 SCC 379], the Hon’ble Supreme BAIL APPL. NO. 11463 OF 2023 7 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. On an anxious consideration of the facts, the materials placed on record and the rival submissions made across the Bar, especially considering the fact that it was the petitioner's motor cycle that was seized from the place of occurrence, the petitioner had allegedly fled away from the scene on seeing the Forest Officials and that there are other incriminating materials to show the active involvement of the petitioner in the crime, and further that the petitioner's custodial interrogation is necessary and recovery is to BAIL APPL. NO. 11463 OF 2023 **==> picture [8 x 9] intentionally omitted <==** be effected, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** Rkc/27.03.24