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1990 DIGILAW 1062 (MAD)

Gaffarsab v. Stale of Kamataka

1990-11-26

K.RAMACHANDRIAH

body1990
Judgment : Petitioners in these cases are residents of Ankarvalli village in Chandragutti Hobli, Sorab Taluk. Cases are registered against them for offences under Secs.24,62,86 and 87 of the Karnataka Forest Act, 1963 (for short ‘the Act’) and Sec.379, Indian Penal Code and FIRs are sent against them by the Range Forest Officer, Sorab to the Court of the J.M.F.C. Sorab alleging that about 644 Kgs. of Sandalwood, 6 pieces of rosewood and 7 pieces of Deodar wood were found in a portion of the residential house of the petitioner in Crl.P.No.1395 of 1990; 60 Kgs. of Sandalwood were found in a portion of the residential house of petitioner in Crl.P.No. 1396 of 1990 and 32 Kgs. of sandalwood in two gunny bags were found in a portion of the house of the petitioner in Crl.P.No.1430 of 1990 when their houses were searched by the Forest Staff on 19. 1990. It is also alleged that the petitioners had no requisite permit to possess the said forest produce. 2. In view of the FIRs., sent against the petitioners for the above mentioned offences, they approached the Sessions Judge, Shimoga (for short ‘the Sessions Judge’) with applications for grant of anticipatory bail under Sec.438, Criminal Procedure Code by contending that they are falsely implicated and they are reasonably apprehending that they are likely to be arrested and subjected to harassment either by the Forest Officials or by the Police. The said prayer of the petitioners was opposed by the respondent by contending that petitioners are not entitled to the relief of anticipatory bail in view of the special provisions made in Sec.104-D of the Act regarding bail. 3. The learned Sessions Judge, in his separate but similar orders passed in Crl.Mis.Nos.174 of 1990, 175 of 1990 and 176 of 1990 on 10. 1990 and 110. 1990, rejected the applications of the petitioners by holding that they are not entitled to the relief of anticipatory bail in view of the provisions of Sec.104-D of the Act as the burden is one the petitioners to show prima facie that they are not guilty of the offences alleged against them. Therefore, the petitioners have filed fresh petitions under Sec.438, Criminal Procedure Code in this Court for the same relief of anticipatory bail. 4. Therefore, the petitioners have filed fresh petitions under Sec.438, Criminal Procedure Code in this Court for the same relief of anticipatory bail. 4. Sri Jayakumar S.Patil, learned counsel for the petitioners contended that the view taken by the learned Sessions Judge that the petitioners cannot be granted anticipatory bail in view of the provisions of Sec. 104-D of the Act is erroneous as the said provisions are applicable only to the persons who are in custody in respect of forest offences. In order to appreciate the said contention, it is necessary to set out the provisions of Sec. 104-D of the Act. It reads thus: “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act II of 1974), no person accused of a forest offence, punishable under Sec.86 or 87 or 104-A 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.” 5. In my opinion, the above said argument of Sri Jayakumar S.Patil deserves to be upheld having regard to the use of the words “if in custody” in Sec.104-D of the Act. Therefore, I hold that the respondent cannot contend that the provisions of Sec.104-D of the Act are a bar for grant of anticipatory bail to the petitioners. 6. The next aspect to be considered is whether the petitioners can be granted to relief of anticipatory bail, it is not necessary to express any opinion at this stage on the point whether or not be petitioners are guilty of the offences mentioned in the FIRs., sent against them. Petitioners are no doubt liable to be punished with imprisonment and also fine if the offences are eventually proved against them at the trial. Be, none of the said offences are exclusively punishable with death or imprisonment for life. Therefore, the mere circumstance that the petitioners are keeping themselves out of the reach of the Police from 19. 1990 as contended by Sri B.H. Sateesh, learned High Court Government Pleader, is not a sufficient ground to deny the relief of anticipatory bail to them. Be, none of the said offences are exclusively punishable with death or imprisonment for life. Therefore, the mere circumstance that the petitioners are keeping themselves out of the reach of the Police from 19. 1990 as contended by Sri B.H. Sateesh, learned High Court Government Pleader, is not a sufficient ground to deny the relief of anticipatory bail to them. There is no possibility of the petitioners absconding as they are permanent residents of Ankaravalli village and they are agriculturists by profession. Therefore, I hold that the petitioners are entitled to the relief of anticipatory bail. 7. In the result, all the three petitions are allowed and the petitioners are granted anticipatory bail in the following terms: .(a) Petitioners are directed to appear before the Range Forest Officer, Sorab within one week from to-day. On the said voluntary appearance of the petitioners, they shall be formally arrested by the Forest Officer who is competent to arrest them and produced before the jurisdictional Police who shall release them on bail on their executing self-bonds for Rs. 10,000 each with one surety for a like sum to the satisfaction of the Police Officer before whom they are produced: (b) Petitioners shall also be released on bail in the same manner in the event of their arrest earlier in connection with the above mentioned cases: .(c) Petitioners shall appear before the Range Forest Officer or the Police Officer who is incharge of the investigation of the above mentioned cases as and when their presence is required in connection with the investigation of the said cases: .(d) Petitioners shall not indulge in commission of the forest offences of the nature alleged against them and they shall not tamper or attempt to tamper with the prosecution evidence in any manner; and .(e) Petitioners shall not go out of the limits of Shimoga District without the prior written permission of the Range Forest Officer, Sorab or the jurisdictional Magistrate as the case may be, till the cases registered against them are decided by the competent Court.