Madhya Pradesh High Court
Salim @ Irshad Khan vs State Of M.P. on 28 September, 2020
Author: Sujoy Paul
Bench: Sujoy Paul
1
THE HIGH COURT OF MADHYA PRADESH
MCRC-27361-2020, MCRC-27545/2020,
MCRC-28215/2020 & MCRC-28357/2020
2
28-09-2020
Jabalpur, Dated :
Heard through Video Conferencing.
Mr. Abhinav Shrivastava, learned counsel for applicants.
Mr. Amit Bhurrak, learned P.L. for respondent/State.
Regard being had to the similitude of factual foundation and the crime on the joint request of the parties, applications were analogously heard finally and decided by this common order.
2. These are first bail applications under Section 438 of Cr.P.C for grant of anticipatory bail in connection with Forest Crime No.-POR No.37337/09 for offences under sections 39(2,3,3B), 48A, 50(4,5,6), 51 and 52 of the Wildlife Protection Act, 1972 registered at Police Station Forest Range, Khawasa General, District-Seoni (M.P.).
3. Learned counsel for the applicants submit that the applicants are employees of Forest Department of Government of Mahasrasthra. As per prosecution story, a dead body of tigress was found in the compartment number 332, Khawasa Range of Pench Tiger Reserve, District-Seoni (M.P.). As per the prosecution story, the dead body of tigress was brought to the spot from State of Maharashtra on the instructions of applicants by a bullock cart. The main accused is Dhamsingh Khandate and on the basis of his alleged confessional statement, applicants are arraigned in the present matter. Learned counsel for the applicants by taking this Court to the similar orders of Court below whereby anticipatory bail applications were rejected, argued that the basic reason for rejection is that 2 applicants were allegedly absconding. The order of Court below is based upon two judgments of Supreme Court reported in (2012)8 SCC 730 Lavesh v. State (NCT of Delhi), and AIR 2014 SC 625 (State of Madhya Pradesh Vs. Pradeep Sharma). By taking this Court to the relevant portions of the said judgments, Mr. Shrivastava urged that in those cases the Supreme Court declined anticipatory bail for the simple reason that the accused therein were declared as absconders by invoking Section 82 of the Code of Criminal Procedure. Section 82 aforesaid prescribes a definite methodology for declaring a person as absconder. The prosecution has not filed any material whatsoever to show that such a course was indeed adopted in the instant cases and applicants were declared as "absconders" under Section 82 of the Code of Criminal Procedure. In absence thereof, the said judgments cannot be pressed into service. He placed reliance on the order of Gwalior Bench in M.Cr.C. No.5621/2020 (Balveersingh Bundela Vs. State of M.P.). It is urged that by taking into account the relevant judgments of Supreme Court on this point, the Co-ordinate Bench came to hold that in absence of issuance of a specific declaration under Section 82 of the Code of Criminal Procedure, applicants cannot be declared as absconder.
4. The applicants are government employees and they are ready to co-operate with the investigation. They have no criminal record. They are working in their respective Forest Department for the same object and purpose for which, Forest Department of Madhya Pradesh is working i.e. to protect the environment and wildlife. The reliance is placed on certain communications written by Senior Forest Officers of State of Maharashtra to their counter parts in Forest Department of Madhya Pradesh wherein, they have shown their willingness to co-operate with the investigation. However, the letter written by Forest Department of Maharashtra was not replied by the Forest Department of Madhya Pradesh. Learned counsel for the applicants further submits that "a mauka panchnama" was 3 prepared which is signed by five persons/officers of Forest Department. A plain reading of this panchnama filed with the charge-sheet clearly shows that there is no mark/identification of any bullock cart at the place body of tigress was found. The alleged owner of bullock cart Laxman V. Karya Lekam's statement (page 106) was also referred to which shows that he has totally declined that he owns any such bullock cart. Lastly, reliance is placed on certificates filed with I.A. No.10651/2020 and other I.As' filed in connected mater which are pregnant with certificates issued by Forest Department of Maharashtra certifying that the applicants are employees of their department. During the relevant period, they have worked with department on regular basis. During their said tenure of service they have not left the department meaning thereby, there was no occasion for them to be present at the place and time of incident on 11.12.2019. Mr. Shrivastava submits that the applicants are ready to depose their statements and co-operate with the investigation. In view of judgment reported in (2011)1 SCC 694 (Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others) and recent judgment reported in (2020)5 SCC 1 (Sushila Aggarwal and others Vs. State (NCT of Delhi) and another), the applicants may be given the anticipatory bail.
5. Per contra, Mr. Amit Bhurrak, learned Panel Lawyer opposed the anticipatory bail applications. The singular ground on which bail applications were resisted by learned Panel Lawyer is that the applicants were called upon to participate in the investigation and depose their statements under Section 16 of the Code of Criminal Procedure but they did not depose their statements and; hence, they do not deserve any anticipatory bail from this Court.
6. I have heard the parties at length on this aspect.
7. It is not disputed before this Court that the applicants are employees of Forest Department of Government of Maharashtra. The record further shows that there was indeed 4 correspondence between both the departments regarding investigation and death of famous tigress namely "Sharmili" whose body was found on 11.12.2019. The correspondence dated 27.02.2020 is reproduced for ready reference.
"OFFICE OF THE DEPUTY CONSERVATOR OF FORESTS, NAGPUR DIVISION, NAGPUR BSNL Laxmi Sanchar Bhawan, Kasturchand Park, Nagpur-440001 Tel No.0712-2565624(O) 2565361(P), e-mail:[email protected] No.Desk-9/Vigilance/Tiger Death Case Deolapar/732/2019-20, Nagpur, Date: 27/2/2020 ____________________________________________________________________ To, The Chief Conservator of Forests (Territorial), Nagpur Subject - Regarding news dated 02/02/2020 published in various news papers about Tigress death in Khawasa on dt.11/12/2019.
Reference- PCCF (Wildlife), M.S., Nagpur letter No.D-23(6)/WL/ CR.
No.11(17-18)/19-20/Nagpur, dt. 14/02/2020
-oo-
Sir, This is with reference to the above mentioned subject, Deputy Conservator of Forests, Nagpur visited the office of Divisional Forest Office (South), Seoni on 18/02/2020, Team from the Maharashtra Forest Department included Assistant Conservator Forests (FLCS-1, Protection and Encroachment Removal), Ramtek Sub Division and Assistant Conservator Forests (FLCS-2, Protection and Encroachment Removal), Umred Sub-division. From the Madhya Pradesh side, meeting was attended by the Divisional Forests Officer (South), Seoni alongwith the Investigation Officer & Sub-Divisional Officer, Kurai.
After the formal introduction, we discussed the incidence in which carcass of a tigress was found in the forest area of Khawasa (Madhya Pradesh) on 11th December, 2019 and POR No.37337/09 dt. 11/12/2019 was registered by Madhya Pradesh Forest Department. We could go through the investigation papers related with the incidence the copy of which was categorically denied to us. We told the DFO, Seoni that only evidence against the Round officer, Forest Guard, Permanent Vanmazoor, temporary Vanmazoor forest is the statement given by the Shri Khandate and the same is not being corroborated by the other evidences till now. Furthermore, investigation officer has not visited the alleged spot of the tiger death. In addition to it, he has neither arrested Shri Tekam who was allegedly involved in the transport of the carcass from Maharashtra side to MP side nor has seized his cart allegedly used in this act. Thus calling these staff for enquiry and considering them the offender will cause huge trauma, metal agony to the staff and spoil their social prestige. Besides, entire field staff in general will get demotivated in these backdrops of incidences. We requested them that once their investigation is supported by the corroborative incidences, it will be prudent to consider forest field staff from Maharashtra as offender.5
We assured them all the support in the course of the investigation and in any filed action if requested and warranted by the Madhya Pradesh Forest Department.
Besides, we requested them to make joint team consisting of the present investigating officer of the case and ACF, Ramtek subdivision in the interest of the investigation as the carcass was found in the MP state and place of the crime allegedly in Maharashtra state, which they told will confirm after discussion with their higher officials.
Meeting was held in very cordial manner, and this meeting could resolve the gap of communication in officers from the both states which will ensure greater coordination in other joint border related issues as well.
Regards.
(Dr. Prabhu Nath Shukla) Deputy Conservator of Forests Nagpur Forest Division, Nagpur."
The correspondence aforesaid prima facie shows that the Apex Authorities of Forest Department of Government of Maharashtra are ready to cooperate with investigation. If a tigress is found dead, needless to emphasize that it is a common concern for both the Forest Departments of Madhya Pradesh and Maharashtra. Accordingly, the officers and employees of both the departments should leave no stone unturned to ensure that investigation is completed expeditiously and the culprits are taken to task.
8. The core issue in this case is: whether applicants deserve anticipatory bail ? In the considered opinion of this Court, they deserve anticipatory bail because there is no chance of their fleeing from justice being government employees. There appears to be no likelihood that applicants will repeat the offence. The hesitation of applicants in recording their statements under Section 161 of the Code of Criminal Procedure appears to be founded upon their apprehension of arrest if they come to Madhya Pradesh for deposing their statements. In that event, if anticipatory bail is granted to them, in the opinion of this Court, it will facilitate them to immediately join the investigation, record their statements and fully co-operate with the Investigating Agency. In the case of Siddharam Satlingappa Mhetre (Supra), the Apex Court opined as under:-
6"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly compre- hended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously un- dergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from jus- tice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which ac- cused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of an- ticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be consid- ered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
7113. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been di- rectly attributed to the accused and these allegations are corroborated by other material and circumstances on record."
9. Similarly, in the recent judgment of Sushila Aggarwal (Supra), the Apex Court opined as under:
"56. The reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Par- liament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal ju- risprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natu- ral to each human being. Section 438 is a procedural pro- vision concerned with the personal liberty of each individ- ual, who is entitled to the benefit of the presumption of in- nocence. As denial of bail amounts to deprivation of per- sonal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, es- pecially when not imposed by the legislature. In Sibbia, it was observed that: (SCC p. 589, para 35) "35. ... Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."
57. The interpretation of Section 438- that it does not en- capsulate Article 21, is erroneous. This court is of the opin- ion that the issue is not whether Section 438 is an intrinsic element of Article 21: it is rather whether that provision is part of fair procedure. As to that, there can be no doubt that the provision for anticipatory bail is pro-liberty and enables one anticipating arrest, a facility of approaching the court for a direction that he or she not be arrested; it was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Par- liament itself recognized as a widespread malaise on the part of the police."
10. In view of these judgments, it is clear that applicants are not required to show any "extra-ordinary" case for grant of anticipatory bail. The basic ingredients on the strength of which anticipatory bail can be granted, are satisfied by the applicants. No prejudice will be caused to the prosecution if bail is granted. Resultantly, I deem it proper to grant them anticipatory bail. In the event of arrest, the applicants Salim @ Irshad Khan, Prakash Kokode, Granthvilas @ Gulab Bisne and Raju 8 Songade be released on anticipatory bail on their furnishing a personal bond in a sum of Rs.50,000/- (Rupees Fifty Thousand only) each along with surety each in the like amount to the satisfaction of arresting officer for their appearance before the Investigating Officer during the course of investigation as and when directed. The applicant shall make himself available for interrogation by a police officer as and when required. The applicant 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. The applicant shall not leave India without the previous permission of the Court.
M.Cr.Cs. are allowed.
Certified copy as per rules.
(Sujoy Paul) Judge julie JULIE SINGH 2020.09.29 13:58:47 +05'30'