Sulaiman T., Abdul Salam and Ashraf v State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 2249 OF 2024` ``` CRIME NO.02/2024 OF MEPPADY FOREST RANGE OFFICE, WAYANAD ``` ## `PETITIONERS:` ``` 1SULAIMAN T AGED 42 YEARS S/O. LATE SAIDHALAVI, THOOMBIL HOUSE, THRIKAIPETTA P.O., MUKKANKUNNU, MEPPADI, WAYANAD, PIN – 673577 2ABDUL SALAM AGED 44 YEARS S/O. SAIDALAVI, THOOMBIL HOUSE, MANDAD P.O., MUKKANKUNNU, VYTHIRI, WAYANAD, PIN – 673122 3ASHRAF AGED 39 YEARS S/O. LATE SAIDHALAVI, THOOMBIL HOUSE, THRIKAIPETTA P.O., MUKKANKUNNU, MEPPADU, WAYANAD, PIN – 673577 BY ADVS.ADITHYA RAJEEV S.PARVATHI SAFA NAVAS K.I.MAYANKUTTY MATHER (SR.)(K/272/1984) ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN – 682031 2RANGE FOREST OFFICER MEPPADY FOREST RANGE, MEPPADY, WAYANAD DISTRICT., PIN – 673577 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2249/2024_ _-:2:-_ Dated this the 26[th] day of March, 2024 ## **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 petitioners are the accused Nos.1 to 3 in O.R. No.2/2024 of the Meppadi Forest Range, Wayanad, registered against the accused, for allegedly committing the offences punishable under Sections 2(1), 2(2), 2(16), 2(20), 2(35), 2(36), 9, 33, 49, 50, 51 & 52 of the Wildlife (Protection) Act, 1972(‘Act’, for short). 3. The essence of the prosecution allegation is that: on 13.02.2024, in the search conducted by the Forest Range Officer at the house of the first accused, on the basis of a secret information, it was found that _B.A.No.2249/2024_ _-:3:-_ the accused had stored the meat of the Rusa unicolour, a wild animal falling under Schedule I of the Act, which was brought to the house of the first accused by the second accused, and the third accused had cut the meat into several pieces. Thus, the accused have committed the above offences. 4. Heard Sri. Adithya Rajeev, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of the First Information Report [FIR] would show that there is no material to link the petitioners of committing the above offences. In any given case, the petitioners’ custodial interrogation is not necessary, and no recovery is to be _B.A.No.2249/2024_ _-:4:-_ effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to show the petitioners involvement in the crime. He stated that there are several witnesses who have seen the petitioners hunting the said animal. The petitioners’ custodial interrogation is necessary, and the recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would sabotage the full and proper investigation of the crime. Hence, the application may be dismissed. 7. The prosecution allegation is that the accused Nos.1 to 3, in furtherance of their common intention, had hunted a Rusa unicolour and cut the meat into pieces. 8. The petitioners had filed Crl.M.C.No.174/2024 before the Court of Session, _B.A.No.2249/2024_ _-:5:-_ Kalpetta, seeking a similar relief. By Annexure-III order, the learned Sessions Judge had dismissed the application, on comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioners. 9. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble 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 _B.A.No.2249/2024_ _-:6:-_ 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 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 _B.A.No.2249/2024_ _-:7:-_ 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. 10. In **Jai Prakash Singh v. State of Bihar and Anr.** [(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. 11. After bestowing my anxious consideration to _B.A.No.2249/2024_ _-:8:-_ the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioners, that the petitioners’ custodial interrogation is necessary and the recovery is to be effected, I am convinced that the petitioners have not made out any exceptional circumstances entitling them to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant orders of pre-arrest bail. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court _B.A.No.2249/2024_ _-:9:-_ shall, consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/26.03.24 //True copy// P.A. To Judge