IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Bail Appl..No. 4951 of 2009 O.R.NO.2 OF 2009 OF PARIYARAM FOREST RANGE, THRISSUR PETITIONER/3RD ACCUSED ------------------------------------------ SULAIMAN, AGED 46 YEARS, SON OF PALATHINGAL VEERAN, ATTOOR P.O., TALAPPILLY TALUK, THRISSUR. BY ADV. SRI.P.V.MADHAVAN NAMBIAR SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY SMT.NISHA G.THARAMAL RESPONDENT: STATE -------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/10/2009, ALONG WITH BA NO. 4952 OF 2009, THE COURT ON 14/12/2009 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 4951 & 4952 OF 2009 ------------------------------------------------------ Dated this the 14th day of December, 2009 O R D E R These Bail Applications are filed by Sulaiman, who is accused No.5 in O.R. No.2 of 2009 of Pariyaram Forest Range and accused No.3 in O.R. No.9 of 2009 of Vellikulangara Forest Range, for anticipatory bail under Section 438 of the Code of Criminal Procedure. The offence alleged against the accused is under Section 2 (f) (i) and Section 27 (1) (e) (iii) and (iv) of the Kerala Forest Act. 2. The gist of the prosecution case in O.R. No.2 of 2009 is the following: On 17-1-2009, when the Forest officials were inspecting Kumbidanmudi ANR Beat forest, they saw the stumps and branches of three sandalwood trees. A mahazar was prepared. O.R. No.2 of 2009 of Pariyaram Forest Range was registered in respect of the same. On 24-7-2009, Prathapan and Karunakaran (accused Nos.1 and 2) were found in the forest area with weapons for cutting trees. They tried to escape on seeing the forest officials. B.A. NO. 4951 & 4952 OF 2009 :: 2 :: They were taken into custody. Prathapan and Karunakaran were involved in O.R. No.1 of 2009 and they were on bail in that case. They disclosed about the cutting of sandalwood trees. The stumps of the trees were also shown to the forest officials. They stated that they had sold 4 kilograms of sandalwood to Sulaiman (Petitioner) with the assistance of Thilakan (accused No.4). It is alleged that Thilakan is a broker and that Sulaiman is involved in dealing with sandalwood. Sulaiman has filed Bail Application No.4951 of 2009 for anticipatory bail. 3. In O.R. No.9 of 2009, the prosecution case, in a nut shell, is as follows: The officials of Vellikulangara Forest Range, on regular perambulation in Mankuttippadam reserve forest on 23-7- 2009, got reliable information that Shaju and Sunilkumar (accused Nos.1 and 2) had cut and removed sandalwood trees from the reserve forest and had kept concealed the sandalwood in the house of Shaju. The forest officials searched the house and compound of Shaju. The sandalwood were found concealed in a pit in the residential compound. Shaju and Sunilkumar were taken into custody. They had shown to the forest officials the stumps of five sandalwood trees, which were cut down by them. It was disclosed B.A. NO. 4951 & 4952 OF 2009 :: 3 :: that they had sold a portion of the sandalwood to Sulaiman (Petitioner). Bail Application No.4952 of 2009 is filed by Sulaiman for anticipatory bail. 4. The learned counsel for the petitioner contended that the Petitioner is not the person who according to the forest officials had purchased the sandalwood and there is a mistake regarding identity. I have gone through the case diary. The petitioner’s house name is shown as Palathingal. The name of the person to whom the sandalwood was allegedly sold is also Palathingal Sulaiman. There are other indications also to show that the petitioner is the Sulaiman referred to by the prosecution. Prima facie, I do not think that there is any mistake regarding identity of the accused. 5. The learned counsel also submitted that there is no material to connect the petitioner with the offence. Prima facie, I am satisfied that there are materials to indicate that the petitioner is involved in the offence. However, it is not proper to arrive at any conclusion on the question of identity as well as complicity of the accused, while disposing of the application for anticipatory bail. At this stage, it is not necessary to meticulously consider the disputed B.A. NO. 4951 & 4952 OF 2009 :: 4 :: questions of fact, which may assume importance at the time of trial. Any observation or finding on those aspects now, would cause prejudice, either to the prosecution or to the defence. 6. The offence alleged against the accused is grave in nature. Accused Nos.1 and 2 in O.R. No.2 of 2009 are involved in other forest offences as well. 7. The learned Public Prosecutor submitted that there exists a ‘sandalwood mafia’ in the State. Several persons are involved therein. Their activities are well organized. The State sustains huge loss due to the illegal activities of sandalwood mafia. It is stated that the Department of Forests finds it very difficult to preserve and protect the sandalwood trees. The topography of the reserve forests in the State is such that there would be human habitation in between different areas covered by the forests. Due to the peculiar situation available in the State, it is very difficult to prevent and detect forest offences. In these circumstances, the persons involved in the sandalwood mafia would find it very easy to accomplish their criminal activities. Depletion of forest wealth, with particular reference to sandalwood trees, is a serious problem faced by the Forest B.A. NO. 4951 & 4952 OF 2009 :: 5 :: Department. It is stated that the sandalwood available in the State of Kerala is one of the best varieties available in India. If the cutting of sandalwood trees by the offenders go on at this rate, the sandalwood reserve in the State would vanish in the near future. 8. In cases of this nature, it is not proper to exercise the discretionary jurisdiction under Section 438 of the Code of Criminal Procedure in favour of the accused. An order for anticipatory bail cannot be claimed as a matter of right. The jurisdiction under Section 438 of the Code of Criminal Procedure should not be exercised mechanically. Anticipatory bail should not be granted on the mere asking of it. The jurisdiction under Section 438 is discretionary. Discretion should be exercised in a judicious manner and not as a matter of course. The nature of the offence is a basic and relevant consideration while dealing with an application for anticipatory bail. The need for custodial interrogation is also another relevant factor for consideration. The consideration which should weigh with the Court while dealing with an application under Section 438 of the Code of Criminal Procedure need not be the same as in the case of an application for regular bail after arrest. Section 438 of the Code of Criminal Procedure is intended to protect a person from B.A. NO. 4951 & 4952 OF 2009 :: 6 :: illegal arrest and detention. Genuine apprehension of harassment and humiliation of the accused by the investigating agency, may sometimes, be a ground for granting anticipatory bail. Falsely framing a person as an accused in a case with a view to arrest, torture and harass him, would cause a sufficient ground for invoking Section 438 of the Code of Criminal Procedure. 9. Section 438 of the Code of Criminal Procedure is not a refuge for the offenders who indulge in grave and heinous crimes. Offences affecting the mankind, the environment, the forest wealth, the people at large, the safety and security of the nation, the economic stability of the country and the like are to be distinguished from the offences affecting individuals as a result of the crime committed by another. In the case of the former, the court would be slow to exercise the discretion in favour of the accused, while dealing with an application under Section 438 of the Code of Criminal Procedure. 10. (See : Union of India V. Padam Narain Aggarwal: (2008) 13 SCC 305; Som Mittal V. Government of Karnataka: (2008) 3 SCC 753; State of Maharashtra V. Mohd. Sajid Husain B.A. NO. 4951 & 4952 OF 2009 :: 7 :: Mohd. S. Husain and others : (2008) 1 SCC 213; State of M.P. V. Ram Krishna Balothia and another: AIR 1995 SC 1198; Pokar Ram V, State of Rajasthan : AIR 1985 SC 969; State of Andhra Pradesh V. Bimal Krishna Kundu and another: AIR 1997 SC 3589; State V. Anil Sharma : AIR 1997 SC 3806; Dukhishyam Benupani V. Arun Kumar Bajoria: AIR 1998 SC 696; K.K. Jerath V. Union Territory, Chandigarh : (1998) 4 SCC 80; Adri Dharan Das V. State of West Bengal: (2005) 4 SCC 303). 11. In the facts and circumstances of the case, I do not think it would be proper to grant the discretionary relief under Section 438 of the Code of Criminal Procedure in favour of the petitioner. Custodial interrogation of the petitioner may sometimes become necessary in the case. I am of the view that if anticipatory bail is granted to the petitioner, it would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/