Abdul Khaleel vs State

A.C. Kabbin, J.—The petitioner herein, who has sought bail u/s 439 of the Cr. P.C., is one of the accused in Forest Crime No. 127 of 1995 of Ranebennur Police Station, registered for offences punishable under Sections 379 and 411 of the IPC and Sections 86 and 87 of the Karnataka Forest Act. His application for bail having been rejected by the learned Sessions Judge, Haveri, he has approached this Court for his release on bail on several grounds, the main ground being that already eight years have elapsed from the date of the alleged offences and that he is in custody since more than three months and that therefore looking to the allegations he may be enlarged on bail permitting him to attend the trial whenever fixed.

The prayer has been opposed by the learned Additional State Public Prosecutor who has filed objections. The main ground on which bail is opposed is that the petitioner had been released on anticipatory bail in the year 1995 on certain conditions, but that he having absconded, the Trial Court could not proceed with the trial and therefore when the Trial Court failed to commence the trial for want of this accused even after NBW and proclamation, the case against him was separated and a separate case was registered. It is stated that the accused-petitioner did not appear before the Court and later when it was learnt that he had been arrested in a different case and had been detained in jail, his presence was secured.

I have heard the arguments of Sri Kashinathrao Patil, the learned Advocate for the petitioner and the learned Additional State Public Prosecutor for respondent.

Sri Kashinathrao Patil, the learned Counsel for the petitioner in his marathon argument of about three hours mainly stressed on the guidelines issued by the Supreme Court with regard to the requirements to be observed by the arresting police officers when they arrest an accused and about the provisions of Section 167 of the Cr. P.C. He also referred to the following decisions:

Sl.No. Name of the parties and reference Principle

01.

State of Uttar Pradesh v Abdul Samad and Another1

Non-production of detenue within 24 hours of his arrest before nearest Magistrate amounts to illegality.

02.

Ram Narayan Singh v State of Delhi and Others''

The provisions of Section 344 of the Cr. P.C. regarding the remand of the accused have to be strictly and scrupulously observed.

03.

Deepak Mahajan v Director of Enforcement and Another3

Where a person is produced before a Magistrate in accordance with Section 104 of the Customs Act and Section 35 of the Foreign Exchange Regulation Act, the Magistrate has no power to commit the person to custody u/s 167(2) of the Cr. P.C. Section 437 of the Cr. P.C. also does not confer implied power of remand in case bail application is rejected.

04.

Natabar Parida and Others v State of Orissa4

Under the new Code no police officer can detain a person in custody, arrested without a warrant for a period longer than 24 hours.

05.

Balappa Karnal v State of Karnataka5

Detention after expiry of 90 days, u/s 167(2) being unauthorized, remand Order u/s 309 cannot be made.

06.

Dalam Chand Baid v Union of India and Others6

The provisions of Section 167 of the Cr. P.C., 1973, cannot be stretched to cover the case of an Enforcement Officer acting under the Foreign Exchange Regulation Act and that being so, provisions of Section 167(2) of the Cri. P.C. do not apply to an arrest made by Enforcement Officer. The Magistrate before whom such accused is produced cannot rely on Section 167 of the Cr. P.C., to remand him to judicial custody.

07.

Criminal Petition No. 1299 of 1991 connected with Criminal Petition Nos. 1300 and 1301 of 1991, DD: 18-9-1991 by Hon''ble Mr. Justice N.Y. Hanumanthappa.

The submissions of Sri Kashinathrao Patil, Advocate, were referred and on the ground that no prejudice will be caused to the State if one more opportunity is given to the petitioners, the petition was allowed.

08.

Criminal Petition Nos. 14 and 18 of 1992 and connected cases, DD: 6th February, 1992 by Hon''ble Mr. Justice N.D.V. Bhat.

After mentioning the submission made by Sri Kashinathrao Patil, the Court taking into consideration the consent of the other side allowed the petition.

09.

Rajiv Kumar v State of Himachal Pradesh1

Referring to the decision of the Supreme Court in Megha Singh v State of Haryana2, it was held that it is not fair that the case be investigated by the same police officer who had filed the complaint.

I have carefully considered the plea made by the learned Counsel for the petitioner in the light of the decisions cited by him. It may be observed here that this is not a case of arrest of the petitioner by the police and subsequent detention, but this is a case wherein the presence of the petitioner was secured before the Trial Court by issuing a body warrant for his production from the jail, where he had been detained in some other case, only after all efforts to secure the presence of the accused failed.

This is a case where the petitioner had obtained anticipatory bail and vanished making himself unavailable. The police failed to secure his presence. It is argued by Sri Kashinathrao Patil, the learned Counsel for the petitioner that the accused is a permanent resident of Bangalore, which is evident from the copy of voter''s card and therefore the plea of the police that he had absconded is false. Admittedly, he had not furnished this address when he obtained anticipatory bail. He was unable to show that the address which he had furnished at the time of anticipatory bail and the present address are one and the same.

An accused person who obtains anticipatory bail or regular bail is required to be available if required at the time of investigation and later for trial. Though, he is not required to confess anything with regard to the crime alleged against him, he having obtained the benefit of anticipatory bail, cannot make himself scarce by migrating from that place. In case, he has to change his address, it is his duty to inform the Investigating Officer and the Court from which he has obtained bail, so that in case charge-sheet is filed, summons can be issued to him to that address. He looses his right to bail if he makes himself unavailable for trial, unless he can satisfactorily explain his non-availability during that period. In that view of the matter, the petitioner cannot plead ignorance of the pendency of the case. There is also no acceptable explanation by him for his non-availability.

It is next argued by the learned Counsel for the petitioner that an error was committed by the Trial Court in issuing warrant; and successive decisions of the Apex Court have indicated that an accused, who has been enlarged on anticipatory bail, should be issued with summons in the first instance and NBW can be issued only if he does not respond. It is clear from the objections of the learned Additional State Public Prosecutor that the question of issuing summons to the accused does not arise in this case, since after all such efforts to secure the presence of the accused failed, then only the Trial Court separated the case and proceeded with the trial against the other accused. Only after the Court came to know that this petitioner had been arrested in another case, a body warrant was issued for his production.

The learned Counsel for the petitioner referred to the provisions regarding seizure, detention, remand, bail, etc., and also the decision in the case of State of Mysore Vs. H. Sanjeeviah, relating to forest rules regarding the transit of timber. It may be observed that none of these matters referred to in his long argument is relevant for the decision on the prayer in the present petition, which is regarding the release of the petitioner on bail.

The factors which have to be taken into consideration in such matters are as to whether the release of the accused would affect the trial and as to whether the presence of the accused can be secured after he is released on bail. From the conduct of the accused it is evident that it will be difficult to secure his presence if he is released, since after obtaining anticipatory bail he had absconded. His presence could be secured only after issue of body warrant.

However, it was pointed out by the learned Counsel for the petitioner that even after three months the trial has not begun and that the other cases against other accused have ended in acquittal of those accused. The learned Additional State Public Prosecutor submitted that he has no information whether the other cases ended in acquittal. However, he submits that the fact that other accused are acquitted does not mean that the same benefit accrues to the present petitioner and the involvement of the present petitioner in the alleged smuggling of timber cannot be ruled out. The learned Counsel for the petitioner next submits that there is no offence punishable under Sections 86 and 87 of the Karnataka Forest Act and that the transportation of sandalwood being punishable under Rule 165 read with Rule 254 of the Karnataka Forest Rules, it is a bailable offence. It is seen that the offences alleged are punishable u/s 379 of the IPC and Sections 86 and 87 of the Karnataka Forest Act. Whether or not the materials on record disclose such offences is a question of fact and the fact that a charge had been framed with regard to those offences against other accused in the original case from which this case was split up, it cannot be said that the offences are not punishable u/s 379 of the IPC and Sections 86 and 87 of the Karnataka Forest Act.

Leaving aside all these matters, one thing is clear that the trial of this case has to be given top priority. Therefore, though the petition being dismissed, a direction has to be given to the Trial Court to complete the trial within three months.

For the above said reasons, the petition is dismissed. However, the Trial Court shall give top priority to this case and dispose of the matter as far as possible within a period of three months.