C. Abdul Hameed vs State

This petition is filed u/s 438 of the Cr. P.C., for grant of anticipatory bail in the event of the arrest of the petitioner by Belthangady Police in Crime No. 94 of 1998 of that Police Station, for the offences punishable under Sections 86 and 87 of the Karnataka Forest Act, 1963. The petitioner having failed in his attempt to get an order of bail in the hands of the learned Sessions Judge, Dakshina Kannada, has approached this Court for a similar relief.

It is alleged by the Police that on 14-6-1998, at about 7.00 p.m., the Sub-Inspector of Police received a telephonic message to the effect that the petitioner has stored sandalwood illegally in the bathroom of his house at Thotathadi Village. The Sub-Inspector immediately went to the said place along with his staff and reached the said place at about 7.45 p.m. The petitioner who was present in the backyard of his house took to his heels. Thereafter, the Sub-Inspector searched his house in the presence of Panchas and found a gunny bag kept tied in the corner of the bathroom. On opening the same, he noticed sandalwood billets in the said hag, weighing about 20.500 Kgs. valued at Rs. 8,200/-, and seized the same under a mahazar in the presence of Panchas. He came back to the Police Station and registered a suo motu compliant against the petitioner. It is in this background, the petitioner filed this bail petition apprehending his arrest by the Belthangady Police.

In his application filed u/s 438 of the Cr. P.C. the petitioner has contended that he has not committed any offence under the Act. He is innocent of the offences alleged against him. There are no reasonable grounds for believing that he is guilty of the offences punishable under Sections 86 and 87 of the Karnataka Forest Act. He further contended that the Police have registered a false case against him at the behest of the persons who are inimically disposed of towards him by planting sandalwood billets in the bathroom. He is an agriculturist by profession. He belongs to a respectable family. He has got his wife and children. If he is arrested and detained in custody, his family members would be put to great hardship and inconvenience. He undertakes to abide by the conditions that may be imposed by the Court.

The State has opposed grant of bail on the ground that there are grounds to believe that the accused-petitioner is guilty of the offences alleged against him. It is contended by the prosecution that the Sub-Inspector of Police, on credible information, inspected the house of the petitioner in the presence of Panchas and found sandalwood billets weighing 20.500 Kgs. and seized them under a Mahazar. Therefore, there is prima facie material against the accused for believing that he is guilty of the said offences.

Sri Rajendra Reddy for Mr. Deshapande, learned Counsel for the petitioner, has contended that at the first instance, there is no bar u/s 104-D of the Karnataka Forest Act to grant anticipatory bail for offences punishable under Sections 86 and 87, as the said provisions have not created the embargo for exercising the discretion of the Court. It is his contention that the bar contained in Section 104-D of the Act is attracted only if the accused is found in custody for the said offences. The learned Counsel for petitioner has relied on the decision of this Court in Gaffarsab v State of Karnataka, , in support of his contentions. Secondly, he has contended that the materials placed before the Court are not sufficient to believe that the accused is guilty of the offences alleged against him.

In order to appreciate the first contention canvassed by the learned Counsel for petitioner it is useful to extract the provisions of Section 104-D of the Karnataka Forest Act. It reads as follows:

"104-D. Special provision regarding bail.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (Central Act 2 of 1974) no person accused of a forest offence, punishable u/s 86 or 87 or 104-A or in respect of ivory, shall, if in custody, be released on bail or on his own bond unless,--

(a) the prosecution has been given an opportunity to oppose the application for such release; and

(b) where the prosecution opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence".

The learned Counsel for petitioner has contended that unless it is shown that the accused is in custody, the Court cannot invoke the bar u/s 104-D of the Karnataka Forest Act to consider the bail application u/s 438 of the Cr. P.C. It appears that the said contention is, in fact, considered in favour of the accused, accepting the said contention. The learned Single Judge of this Court in the Gaffarsab''s case, supra, has held as follows:

"The contention that the provisions of Section 104-D are applicable only to the persons who are in custody in respect of forest offences deserves to be upheld having regard to the use of the words "if in custody" in Section 104-D of the Act. Therefore, I hold that the respondent cannot contend that the provisions of Section 104-D of the Act are a bar for grant of anticipatory bail to the petitioners".

I have considered the opinion expressed by this Court in the said case. Having regard to the purport and intendment of the Act, it is difficult for me to agree with the view taken in the said case.

The special provisions of bail in Section 104-D of the Act are incorporated in the said Act, by amending the said Act. The purport and object of incorporating the special bail provisions in Section 104-D of the Act is to restrict the discretion of the Courts in the matter of bail as provided in Chapter 33 of the Cr. P.C. Therefore, there is no absolute bar for exercising the discretion. It is settled that the grant of bail is always within the judicial discretion of the Court concerned. Section 104-D of the Karnataka Forest Act enables the Court to admit the accused for bail subject to clauses (a) and (b) of Section 104-D of the Act. The Courts can exercise their jurisdiction only after giving an opportunity to the prosecution to oppose the bail application. But, where the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of any such offence, only then the Court gets jurisdiction to grant bail in exercise of its judicial discretion.

(emphasis supplied)

The question for consideration is:

If there is a bar u/s 104-D of the Karnataka Forest Act for grant of bail u/s 437 or 439 of the Cr. P.C. whether Courts can grant bail u/s 438 of the Cr. P.C.?

If there is a general bar under any special statute to grant bail, the Court cannot exercise its discretion u/s 437 or 439 of the Cr. P.C., to grant bail to the accused person, who is accused of an offence punishable under the special statute. A narrow and literal interpretation is not possible if the intendment and purport of legislation is to restrict the powers of the Court to grant bail for the offences punishable under the special statute. However, if there is no such bar in the statute, the powers of the Court u/s 437 or 439 of the Cr. P.C. are not circumscribed vide limitation imposed u/s 437(1) of the Cr. P.C.

A special reference may be made to the provisions of anticipatory bail which have been made inapplicable to the offence punishable under Terrorist and Disruptive Activities (Prevention) Act, 1987, and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by Section 20(7) and Section 18 respectively.

Section 20(7) of the TADA Act reads as follows:

"Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act or any rule made thereunder".

Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, reads as follows:

"Section 438 of the Code not to apply to persons committing an offence under the Act.--Nothing contained in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act".

However, there is no such provision in the N.D.P.S. Act, making Section 138 of the Cr. P.C., inapplicable to the cases thereunder. Similarly, in Section 104-D of the Karnataka Forest Act, there is no provision making Section 438 of the Cr. P.C. inapplicable to the cases arising under the said Act. Therefore, in my opinion, there is no prohibition or bar for entertaining a petition for anticipatory bail filed u/s 438 of the Cr. P.C., when an accusation is made against the accused under any provisions of the Karnataka Forest Act, including the offences punishable under Sections 86 and 87 of the said Act.

However, this is subject to clause (a) and (b) of Section 104-D of the Karnataka Forest Act. If the Court finds that there are no prima facie materials on record to presume that the accused is guilty of the offences alleged prohibiting grant of bail u/s 104-D of the Act, the Court is precluded from exercising its discretion in granting bail.

Coming to the merits of the case, it is found that sandalwood weighing about 20.500 Kgs., packed in gunny bag and kept in the bathroom of the house belonging to the petitioner was seized by the Sub-Inspector of Police, in the presence of Panchas and the accused escaped from the notice of the Sub-Inspector immediately after spotting their presence near his house. The contention that the accused is not the only member of the house and the prosecution has not proved the exclusive possession of the accused, is a matter which the Court has to take into consideration at the time of trial. The question for consideration at this stage is - whether the accused was found to be in possession of the sandalwood without permit and whether it amounts to the offence punishable u/s 86 or 87 of the Act. The facts placed before this Court are sufficient to presume that he is guilty of the offences alleged. In addition to these facts, it is now brought to the notice of the Court that this accused is involved in six more similar cases and has been absconding since then and his presence is absolutely necessary for the prosecution to file the final report. Therefore, this is not a fit case to exercise the discretion in favour of the accused to release him on bail in the event of his arrest.

This bail petition, therefore, fails and is dismissed.