Shawkkath Ali M.K. vs State Of Kerala

Shircy V. J

Apprehending arrest in connection with O.R. No. 1 of 2021 of Tholpetty Forest Range, Wayanad registered for the offences punishable under Sections 27(1)(e)(iv) of the Kerala Forest Act, 1961 and Sections 9, 39 and 51 of the Kerala Wild Life Protection Act, 1972, these petitioners have moved this application under Section 438 of the Code of Criminal Procedure.

The brief facts required for disposal of this application are as follows:

On 11.07.2021 at about 11 p.m., the petitioners, one Moidu and the other accused have trespassed into Tholpetty Wildlife Sanctuary in Tholpetty Range and hunted an Indian Bison by using a fire arm, for the purpose of conducting meat trading for money and thus committed the aforesaid offences. Moidu, who was arrested, on interrogation disclosed the names of the other accused persons involved in the alleged crime. Thus, the case has been registered against all of them.

The learned counsel for the petitioners would submit that they were falsely implicated in the case by the forest officials though they are fully aware of the fact that they have absolutely no role in the alleged crime. Though they are totally innocent and were not present at the place of occurrence and no arms were recovered from them, they were implicated in the case and so they apprehend unnecessary arrest and incarceration. Therefore, the indulgence of this court is sought for to avoid unnecessary arrest and trauma in connection with the unnecessary detention.

On the other hand, the learned Special Public Prosecutor opposed the application contending that it is true that Moidu alone was arrested immediately after the incident. The forest officials have found the accused extracting meat from the carcass of the Bison which they have shot dead and when they reached the spot to take them into custody, they took to their heels with the weapon and only Moidu was apprehended then and there. Some materials were collected from him such as a knife, plastic bag, towel etc used for the illegal purpose. The postmortem examination of the carcass of the Bison was conducted and a bullet was removed from its body. The petitioners and the other accused have trespassed into the Wildlife Sanctuary with a gun with the intention to hunt wild animals and thus they have shot dead the Bison with the intention to conduct trade of the meat for unlawful gain. So, the gravity of the offences alleged against these petitioners are grave and serious in nature. Moreover, most of the accused persons are absconding and so, they could not proceed with the investigation of this case and hence, granting of bail is opposed.

The rank of these petitioners who have been arraigned as accused is not definite from the report submitted by the forest officials. It is also revealed that from the spot, only Moidu was arrested and on interrogation he had disclosed the names of the other accused involved in committing the offences after trespassing into Wildlife Sanctuary. From the report, it is further revealed that on getting information from the person who was apprehended, the forest officials have verified the CCTV footage and found the presence of vehicle of the petitioner bearing No. KL 57 T 6030 near the spot. Another vehicle owned by Moidu bearing Registration No. KL 12 N 2030 was also found in the CCTV and it was revealed that the 2nd and 3rd petitioners in B.A. No. 6533 of 2021 were brought to the spot for cutting the neck of the animal for halal meat as they could sell the same for a higher price. But before cutting the same, due to the intervention of the forest officials, they could not conduct trade of meat as preplanned and scheduled by them. So, the materials so far collected by the investigating agency would reveal a strong prima facie case against the petitioners. It is true that only one bullet was recovered from the carcass of the wild animal and so, it could be presumed at this stage that only one gun was used to shoot the wild animal. The petitioners are also not from Wayanad District and prima facie, it would indicate that they came to the spot only with the intention of hunting wild animals.

As the investigating agency could not collect the entire materials because they could not arrest all the accused persons involved in the crime, the investigation is going on in a slow phase. Of-course there is a strong prima facie case against these petitioners, but their involvement in hunting the wild animal is less when compared with the active role played by Moidu. They have no criminal antecedents. Therefore, considering the entire facts involved in this case, I think that this application can be disposed of directing them to surrender before the investigating agency and co-operate with the investigation of the case.

So, the petitioners shall surrender before the Investigating Officer on 28.10.2021 between 10 a.m. and 12 noon. Upon their surrender, after interrogation and recovery, if any, and recording their arrest, they shall be released on bail subject to the following conditions:

(i) Petitioners shall execute a bond for a sum of Rs.1,00,000/-(Rupees One Lakh only) each with two solvent sureties for the like sum each to the satisfaction of the Investigating Officer.

(ii) They shall appear before the Investigating Officer on alternate Wednesdays between 2 p.m. and 3 p.m. till the filing of the final report.

(iii) They shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iv) They shall not commit any offence while on bail.

In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with the law.