IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Bail Appl..No. 1173 of 2008() ----------------------------- OR.9/07 OF FOREST RANGE OFFICE, KULATHUPUZHA PETITIONER/ACCUSED 10 -------------------------------------- AHAMMED KUNJU, THADATHARIKATHU VEEDU, THANNIMOODU, KACHUVILA P.O., PERINGAMMALA. BY ADV. SRI.A.RAJASIMHAN RESPONDENTS: COMPLAINANT ------------------------ FOREST RANGE OFFICER, KULATHUPUZHA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 1173 OF 2008 D ```````````````````````````````````````````````````` Dated this the 11th day of March, 2008 O R D E R Application for anticipatory bail. Petitioner is the 10th accused. Altogether there are 13 accused persons. They face allegations under the Kerala Forest Act and the Wild Life Protection Act. The alleged incident took place on 6.11.07. A group of persons had allegedly trespassed into the forest for the purpose of hunting. They had put up a shed inside the forest. Some of the miscreants were armed with guns for the purpose of hunting. The forest officials located them. Nine of them were arrested in the forest. The others took to their heels. The petitioner is allegedly one of those who had taken to his heels and could not be arrested. The electoral identity card of the petitioner was available at the scene of the crime. The mahazar prepared shows that the petitioner had run away from the scene of the crime and that his electoral identity card was seized from the premises. The BA.1173/08 : 2 : petitioner has been arrayed as the 10th accused. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The petitioner has come to this Court with this petition for anticipatory bail. According to him he was not available at the scene of the crime. He had not run away from the scene of the crime. False allegations are being raised against him. His name is not Kunhumon who is arrayed as 10th accused. His name is Ahammedkunhu and in these circumstances, he has been brought on the array of accused on the basis of mistaken identity. The petitioner may be granted anticipatory bail, it is prayed. 3. The learned Public Prosecutor opposes the application. In view of the controversy of the name, the petitioner was directed to appear before the investigating officer and an undertaking was given by the learned Public Prosecutor that the petitioner shall not be arrested when he so appears before the investigating officer. The investigating officer now confirms that the petitioner is the 10th accused in BA.1173/08 : 3 : the crime without any doubt. In the electoral identity card there was a photograph of fixed and that photograph tallies with the petitioner. We find the details of the electoral card incorporated in the seizure mahazar itself. In these circumstances, the learned Public Prosecutor submits that there can be no semblance of doubt now about the identity of the petitioner. The petitioner who calls himself now as Ahammed Kunhu is the person whose photograph appears in the electoral card in which the name of such person is shown as Kunhumon. The learned Public Prosecutor submits that the bottom is thus knocked out of the contention that the petitioner is not Kunhumon and that he is not the one who ran away from the scene. 4. Be that as it may, I shall carefully avoid any detailed discussions on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that on an anxious consideration of all the relevant circumstances I find force in the opposition by the learned BA.1173/08 : 4 : Public Prosecutor, I am satisfied that there are no features in this case which would justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 5. In the result, this petition is dismissed. Needless to say, if the petitioner surrenders before the investigating officer or the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously. (R.BASANT, JUDGE) aks