Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 BAIL APPL. NO. 5244 OF 2023 O.R No.4/2023 of Kanhangad Forest Range Office, Kasargod PETITIONER/ACCUSED NO 3 AND 4: 1 RAMESH KUMAR AGED 50 YEARS S/O.ENAKAPPU NAIK, OTTAMALA, CHAMUNDIKUNNU, PANATHADY VILLAGE,M VELLARIKUNDU TALUK, KASARGODE DISTRICT, PIN - 2 RAJEEVAN AGED 38 YEARS S/O.RAMAKRISHNAN, ADUKKAM, CHAMUNDIKUNNU, PANATHADY VILLAGE, VELLARIKUNDU TALUK, KASARGODE DISTRICT., PIN - BY ADVS. T.K.KUNHABDULLA ARJUN S.KURUPP MANOJ K. JOHN MARIAMMA GEORGE MARANGOLY RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: ADV. SREEJA V - SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
This is an application filed under Section 438 of the Code of Criminal Procedure seeking anticipatory bail.
2. The petitioners are the accused Nos. 3 and 4 in O.R
No.4/2023 of Kanhangad Forest Range Office, Kasargod. The offences alleged against the petitioners are punishable under Sections 27(1)(e)(IV) of Kerala Forest Act, 1961 u/s 2(16)(a)(b) (35), 9, 34, 51, 52 of Wild Life Protection Act, 1972 and Arms Act, 1959.
3. The prosecution case is that, on 14.04.2023, at 1.00
a.m., during the night patrol of Section Forest Officer, Panathadi at the Vannarkayam Forest area of Ottamala vested forest, they saw torch light inside the forest. On further examination, it was realized that four persons were moving illegally into the forest area to hunt wildlife, using gun at night. Thereafter, the forest officials apprehended two persons and the remaining two escaped from the scene of occurrence. From the said persons, the forest officials seized one loaded country made gun, cartridges and three torches. The case has been registered against them in such
circumstances. As the petitioners apprehend arrest in connection with the investigation, this application for anticipatory bail is submitted.
4. Heard, Sri. T.K.Kunhabdulla, the learned counsel appearing for the petitioners and Smt.Sreeja.V., the learned Public Prosecutor, appearing for the State.
5. The learned counsel for the petitioner submits that the
petitioners are innocent of all allegations. According to him, they were falsely implicated as some of the forest officials were on inimical terms with the petitioners. It is pointed out that at the time of preparation of mahazar at 1.00 a.m., the officers who are signatories of the said mahazar were not there at the place of occurrence. The learned counsel further pointed out that, an examination of the tower locations of the mobile phones of the aforesaid forest officials would make the aforesaid aspect clear and therefore, he makes a request for calling for the details of tower locations of the mobile phones of the Forest officials.
6. On the other hand, the learned Public Prosecutor opposes the said application by pointing out that, after the accused Nos. 1 and 2 were arrested, they made a confession statement before the Forest officials wherein, the involvement of the petitioners were specifically mentioned. It is pointed out that,
at the instance of the petitioners, they went to the forest for hunting and when the Forest officials came, they fled from the scene of occurrence. The confession statements of both the accused persons were made available for perusal. Dismissal of the application was sought, in such circumstances.
7. I have gone through the records. From the materials
placed on record, there are prima facie materials indicating the involvement of the petitioners. Since, the statements given by the accused are admissible piece of evidence as the same was given not before the police. As regards the prayer of the petitioners, to call for the call data records of the forest officials, I am of the view that, such an exercise cannot be performed in an application for
anticipatory bail. No roving inquiry can be performed while exercising the powers of this court under Section 438 of the Cr.P.C. that too at the instance of the accused persons. The court has to exercise its discretion, as to whether the bail is to be granted or not after examining the materials placed on record. The investigation is a matter which has to be conducted by the officers
concerned and under no circumstances the same can be interfered with by this Court at this juncture.
8. When coming back to the merits of the case, as
observed above, there are ample materials, indicating the role of the petitioner prima facie. Therefore, I do not find this as a fit case in which anticipatory bail as such can be granted to the petitioners. The petitioners have to cooperate with the investigation for which they will have to surrender before the Investigation Officer. In the result, the application is disposed of on the following conditions: i) The petitioners shall surrender before the Investigation officer within a period of three weeks from today for subjecting themselves to interrogation; ii) Upon such surrender and after interrogation, if any, the petitioners shall be produced by the investigation officer before the Jurisdictional Court on the very same day of surrender itself to enable the petitioners to seek bail, provided he surrenders on or before 11 A.M on that day, iii) The Jurisdictional Court, upon production of the accused and filing of the bail application, may consider the bail application in accordance with law and, if possible, dispose of the same on the very same day of filing of the said application. Sd/- ZIYAD RAHMAN A.A JUDGE rpk