Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2509 (BOM)

SURAJPAL v. STATE OF MAHARASHTRA

2014-12-19

S.B.SHUKRE

body2014
ORDER : This is an application filed under section 439 (1) of the Criminal Procedure Code, 1972 for grant of bail, with the bail applications filed by the applicant having been rejected firstly by the Chief Judicial Magistrate, Amravati on 17-5-2014 and secondly by the Additional Sessions Judge, Amravati on 24/7/2014. 2. This case pertains to hunting of a tiger in Dhakana forest range situated in Gugamal Wild Life division of Melghat Tiger Reserve, district Amravati. Initially, the Forest Department registered a Preliminary Offence Report (hereinafter referred as "P.O.R.", for the sake of convenience) No.10/10 on 15-2-2014 for the offences punishable under sections 51 (1) read with sections 38, 40 (1), 40 (2), 44, 49-B and 52 of the Wild Life (Protection) Act, 1972 and commenced investigation into the hunting of the tiger. During the course of the investigation, the present applicant along with other accused persons were arrested and after completion of the investigation, the Forest Department filed complaint case against the applicant and three accused, which is registered as Criminal Case No. 477/13. It is presently pending before the Court of Chief Judicial Magistrate, Amravati. 3. The allegations against the applicant is that he is mastermind of crimes relating to hunting of tigers and he initiates these crimes by providing financial aid, logistical support and appropriate rewards by purchasing tiger skins and body parts. It is also alleged that the non-applicant is an international trader of skins and body part of the tiger, a Schedule-I animal. 4. Learned Counsel for the non-applicant submits that even though the allegations apparently appear to be serious in nature, on perusal of the complaint and also the material placed on record in support of the allegations in the complaint, one would find that so far as the allegations made against the non-applicant are concerned, the allegation of his being international trader of tiger skins and its body parts and abettor of crimes relating to hunting of tigers are missing in as much as no call details records (CDRs) have been placed on record, so as to prima facie establish complicity of the applicant in this crime together with the other co-accused. He submits that even the sim card of mobile handset seized in this case is not registered in the name of the applicant. He submits that the amount of Rs. He submits that even the sim card of mobile handset seized in this case is not registered in the name of the applicant. He submits that the amount of Rs. 50 lac seized from the house of the applicant has been properly justified by him by producing on record the documents showing that the amount was received by the wife of applicant, Chandadevi, as sale proceeds of her house. He submits that in the crime registered against the applicant at Delhi, two persons namely Sonam and Pasang Bangdu were summoned and their statements were recorded wherein it was stated by them that they had no dealings with the applicant. He submits that statements of the co-accused in this crime are discrepant and inconsistent and, therefore, no reliance could be placed upon them even for making any prima facie inference regarding involvement of the applicant in the present crime. He further submits that the applicant was not allowed to have any cooling off period before his confessional statement was recorded and it was neither read over to him nor it was told to him that it could be used against him. He also submits that no explanation is forthcoming from the Forest Department as to why his statement under section 164, Criminal Procedure Code was not recorded. He also submits that in any case, the confessional statement of the applicant was recorded after the applicant was subjected to torture and, therefore, it was retracted by him later on and as such it cannot be referred to in any manner for any purpose. 5. Learned Counsel for the applicant further submits that the provisions regarding bail should not be used as if a pretrial punishment is being imposed upon the accused as the basic principle of criminal law is that every accused is innocent till he is found guilty. He submits that even when there is a prima facie case against the accused, the primary considerations that must weigh in the mind of the Court while deciding bail application are that whether the accused would face the trial if released on bail and whether the accused would tamper with the prosecution witnesses or thwart the course of justice, if released on bail as refusal of bail is a restriction on personal liberty of the individual guaranteed under Article 21 of the Constitution of India and personal liberty can not be deprived casually. In support, he has placed reliance upon the following cases. : (1) Bhagirathsingh Judeja vs. State of Gujarat, AIR 1984 SC 372 (1). (2) Sanjay Chandra vs. Central Bureau of Investigation, 2012 (1) Mh.L.J. (Cri.) 516 = (2012) 1 SCC 40 . (3) Arup Bhuyan vs. State of Assam, 2011 (1) Crimes 268 (SC). 6. Learned Special Public Prosecutor for the non-applicant-State (Forest Department) has submitted that there is ample material disclosing prima facie involvement of the applicant in the offences registered against him and these offences being of extremely serious in nature and also the fact that similar crimes have been registered against the applicant, the possibility of the applicant fleeing from justice as much as thwarting the course of justice is not ruled out and as such the applicant in not entitled to be released on bail. He submits that there are several parameters which are required to be taken into consideration before directing release of the person/accused of serious crimes on bail and if all these parameters are to be considered in this case, the applicant would surely disentitle himself for securing his release on bail. In support, learned Special Public Prosecutor placed reliance upon the cases of; (1) Kanwar Singh Meena vs. State of Rajasthan and another, (2012) 12 SCC 180 , and (2) Ranjit Singh vs. State of M. P. and others, 2011 (3) Mh.L.J. (Cri.) (S.C.) 528 = 2013 (12) SCALE 190. 7. In the case of Bhagirathsingh Judeja (supra) the Hon'ble Apex Court has held that even where a prima facie case is established, the approach of the Court in the matter of bail should not be as if to detain the accused during trial by way of punishment. 7. In the case of Bhagirathsingh Judeja (supra) the Hon'ble Apex Court has held that even where a prima facie case is established, the approach of the Court in the matter of bail should not be as if to detain the accused during trial by way of punishment. Same view has also been taken by the Hon'ble Apex Court in the case of Sanjay Chandra when it held that right to bail is not to be denied merely because of the sentiments of the community against the accused and that primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him in jail pending the trial and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. The Hon'ble Apex Court, apart from summarizing the principles governing discretion of Courts in matters of bail, held that object of bail is neither punitive nor preventive and deprivation of liberty must be held to be a punishment, unless it is required to ensure that accused will stand his trial when called for. 8. There can be no dispute about the above referred principles of law. Even in the case of Kanwar Singh Meena and Ranjit Singh (supra), same parameters applicable for granting or refusing of bail as laid down in the case of Sanjay Chandra have been reiterated. These parameters in nutshell are; i. the nature of accusation; ii. the nature of evidence in support thereof; iii. the severity of punishment which conviction will entail; iv. seriousness of the crime; v. the character, behaviour means, position and standing of the accused; vi. circumstances peculiar to the accused; vii. reasonable possibility of securing presence of the accused at the trial; viii. reasonable apprehension of the witnesses being tampered with; ix. larger interest of the public or the State, and similar other circumstances. 9. In the instant case, prosecution case appears to be based upon confessional statements of the applicant and his co-accused, the CDRs and some seizures. reasonable possibility of securing presence of the accused at the trial; viii. reasonable apprehension of the witnesses being tampered with; ix. larger interest of the public or the State, and similar other circumstances. 9. In the instant case, prosecution case appears to be based upon confessional statements of the applicant and his co-accused, the CDRs and some seizures. If one peruses the criminal complaint filed under section 55 of the Wild Life (Protection) Act read with section 200 of Criminal Procedure Code, not much help is seen coming therefrom in order to ascertain existence of prima facie case against the applicant in respect of the allegations made against him. Even though, there are allegations made in the complaint that all the accused are involved in the trail and trade of Dhakana tiger hunting case, these allegations have neither been elaborated nor illustrated by stating brief facts necessary to explain and substantiate them. But, as the complaint has to be read in its entirety together with the materials produced on record in support of the allegations made therein, what is lacking in the complaint cannot be considered to be fatal, at least at this stage, to the prosecution case. However, position would be different if the allegations generally made in the complaint are not at all supported by the materials produced along with it. If, there are no materials supporting the allegations in the complaint, there would be a scope to say that the offences alleged against the accused are not prima facie made out. However, such does not seem to be the case here. 10. There are confessional statements of the co-accused as well as the applicant himself which sufficiently disclose prima facie involvement of the applicant in commission of the offences alleged against him. The confessional statements of Ranjeet, Sarju and Dalbir, the co-accused and also confessional statement of the present applicant are relevant in this regard. They prima facie show that the applicant is a provider of finances for initiating operations for hunting of tigers and also an abettor who encourages hunting of tigers by purchasing at huge prices skins and body parts of the tigers. According to the co-accused Ranjeet, the applicant had himself come along with other accused Dalbir to Sevagram and had purchased bones and skins of two tigers for an amount of Rs. 3 lac. According to the co-accused Ranjeet, the applicant had himself come along with other accused Dalbir to Sevagram and had purchased bones and skins of two tigers for an amount of Rs. 3 lac. Of course, the statement of Dalbir does not disclose that he had gone to Sevagram along with the present applicant and what he admits is only the fact that he alone had gone to Sevagram for purchasing of skin and bones of one tiger for a consideration of Rs. 1,70,000/. According to learned Counsel for the applicant, these confessional statements are discrepant in nature and, therefore, create doubt about their prima facie genuineness. I am not inclined to accept this argument for the reason that what Ranjeet is referring to is an incident of purchasing of skins and bones of two tigers at Sevagram which took place some time prior to the date of statement i.e. 26-6-2013 and what Dalbir is referring to an incident which took place about three years prior to the date of the statement i.e. 26-12-2013, wherein skin and bones of only one tiger were purchased. Both these incidents appear to be relating to different transactions and, therefore, at this stage, there is no reason for me to say that there is a prima facie doubt about the genuineness of these statements. Even, the statement of another co-accused Sarju as well as of the present applicant show that the applicant has been into the business of purchasing skins and bones of tigers and providing finances to hunters and poachers from time to time and this has been going on for a quite long period of time. 11. It is also seen that there are CDRs which, according to the statement made by learned Special Public Prosecutor have been personally verified by the concerned Forest officers, disclosing that applicant was in constant touch through calls made from the mobile phone seized from his possession with the other co-accused persons. The CDRs have not been produced along with the complaint and according to the Forest officials, as informed by leaned Special Public Prosecutor, they have not been so far made available by the Service Provider and they would be filed as and when they are so made available. The CDRs have not been produced along with the complaint and according to the Forest officials, as informed by leaned Special Public Prosecutor, they have not been so far made available by the Service Provider and they would be filed as and when they are so made available. Even if, the CDRs are not filed on record, I do not think that the facts which are relevant and which have come to the fore through voluntary statements of the applicant and the co-accused can be ignored. There is no reason why they should be discarded at this stage. These facts being relevant, can be read in evidence in as much as are not hit by section 25 of the Evidence Act, as per the settled law. Therefore, I find that the confessional statements of the applicant and the co-accused deserve consideration and upon considering them, I further find that they prima facie disclose involvement of the applicant in the offences alleged against him. 12. It is not in dispute that sim card of the mobile phone seized from the possession of the applicant was not registered in the name of the applicant, but this fact, at this stage, would not affect adversely the prosecution case against the applicant for the reason that the confessional statements, as discussed earlier, are sufficient at this stage to prima facie show that the allegations made against the applicant are genuine. 13. As regards the doubt expressed upon the genuineness of the confessional statement of the applicant by learned Counsel for the applicant, I must say that this doubt, upon perusal of the confessional statement, appear to be apparently misplaced. 14. It has been submitted by learned Counsel for the applicant that the applicant is an illiterate person and some of the questions that were put to him were in leading form and he was not informed of the effect of his statement in law nor was there any endorsement made below the confessional statement that it was read over to him and that it could be used against him. He also submits that no sufficient time was given to the applicant to think over the issue of making of his confessional statement and no explanation has been given as to why statement under section 164, Criminal Procedure Code was not got recorded by the forest officials. He also submits that no sufficient time was given to the applicant to think over the issue of making of his confessional statement and no explanation has been given as to why statement under section 164, Criminal Procedure Code was not got recorded by the forest officials. He also submits that after all the confessional statements of the applicant as well as other accused persons are extra judicial confessional statements and, therefore, they must be viewed with sufficient care and caution in as much as this Court should also consider the effect of the application submitted by the applicant on 11-2-2014 thereby retracting his confessional statement on the ground that the applicant was subjected to torture and therefore, it was not voluntarily made. 15. So far as concerned the charge that applicant was subjected to torture before recording of his confessional statement, I must say that there is no material placed on record showing that the applicant had made any complaint in that regard whenever he was produced before the concerned Magistrate for his being remanded to the judicial custody. Therefore, retracting of the statement by the applicant would have to be considered on merits of the case and not at this stage. That apart, the confessional statement dated 28-1-2014 is basically in the nature of admission of a material fact and in order to disown the fact admitted by a person, cogent evidence is required to be led by that person to establish that the admission itself was vitiated by certain circumstances and this exercise would be possible only when detailed evidence is available before this Court. About absence of any cooling off period, I find that the statement has not been recorded immediately after the arrest of the applicant. Admittedly, the applicant was arrested on 22-1-2014 and his statement has been recorded on 28-1-2014. About absence of any endorsement below the confessional statement regarding its being read over to the applicant and its effect in law having not been explained to the applicant, again, I would say that these are matters of defence and therefore would have to be considered only on merits of the case and not at this stage. Same can be said in respect of not recording of the statement of the applicant under section 164, Criminal Procedure Code. Same can be said in respect of not recording of the statement of the applicant under section 164, Criminal Procedure Code. About the contention that confessional statement of the applicant as well as other co-accused persons are in the nature of extra judicial confessions and, therefore, greater caution is required to be exercised before accepting them as they are, there is no dispute about the principle. But, when one goes through the confessional statements carefully, prima facie, one does not notice any such glaring infirmities and discrepancies as would create doubt about genuineness of the statements at this stage itself. Therefore, I see no merit in the argument of the learned Counsel for the applicant that these statements should be left out of consideration for reaching any prima facie conclusion about involvement of the applicant in the present case. 16. In the case of Adambhai Sulemanbhai Ajmeri and others vs. State of Gujarat reported in 2014 ALL MR (Cri) 2627 (S.C.) relied upon by learned Counsel for the applicant, the Hon'ble Apex Court has struck a work of caution while considering the evidentiary value of confessional statement made to a Police Officer under section 32 read with section 52 of the Prevention of Terrorism Act (2002). Hon'ble Apex Court has observed that Police Officer recording confessional statement is required to give in writing at the end of the statement that the accused had made the confessional statement voluntarily, that it could be used against him as evidence and that the accused after fully knowing the consequences, had decided to make the confessional statement. Hon'ble Supreme Court further observed that if these precautions are not taken, the confessional statement would be inadmissible. With due respect, I must say that these observations have been made by the Hon'ble Apex Court while considering the provisions of Prevention of Terrorism Act, wherein certain confessions made to Police officers can be taken into consideration by the Court and in view of specific statutory provisions, which put those confessions in a category different from the confessions recorded by a forest officer, who is not a police officer, the law laid down in the said case of Adambhai would not be applicable to the present case. However, by observing so, I do not suggest that applicant cannot challenge the confessional statement on the ground of absence of appropriate endorsements below his confessional statement. However, by observing so, I do not suggest that applicant cannot challenge the confessional statement on the ground of absence of appropriate endorsements below his confessional statement. But, even if he does so, it would be his defence and it being so, it can be considered only on merits of the case and not at this stage. 17. In the case of Arup Bhuyan (supra), it has been held by the Hon'ble Apex Court that since the prosecution had mainly relied upon the alleged confessional statement of the accused, which was nothing but extra judicial confession and there being no corroborative material present, it would not be safe to convict the accused on the basis of the alleged confessional statement. Since these observations have been made on merits of the case, they would be of no assistance to the applicant at this stage of consideration of his bail application. 18. Now, after having seen the presence of sufficient material disclosing prima facie involvement of the present applicant in the offences of aiding and abetting hunting of a Schedule-I wild animal, the tiger, this Court would have to consider whether on other parameters, the applicant would be entitled to be released on bail or not. There is no dispute about the principle of law, as followed in the case of Yunis and another vs. State of Uttar Pradesh reported in 1999 Cri.L.J. 4094, that the law of parity applies in granting bail to a co-accused but has no application in rejecting the bail application of another co-accused and, therefore, cancellation of bail to the applicant in another crime by this Court by its order passed on 12-12-2014 in Criminal Application No. 99 of 2014 would have no impact whatsoever on the present application. Similarly, it is also settled law that merely on criminal antecedents, bail cannot be refused and that Court is duty bound to examine the role of the accused in the case in which he has been charged and also other factors such as possibility of the accused fleeing away from the jurisdiction of the Court, possibility of the accused thwarting the course of justice and so on as held in the case of Maulana Mohd. Amir Rashadi vs. State of Uttar Pradesh and another reported in 2012 (2) Mh.L.J. (Cri.) (S.C.) 412 = 2012 (1) SCC (Cri) 681. Amir Rashadi vs. State of Uttar Pradesh and another reported in 2012 (2) Mh.L.J. (Cri.) (S.C.) 412 = 2012 (1) SCC (Cri) 681. At the same time, there are other considerations as well, which must weigh with the mind of Court while exercising it's discretion in bail matters. All these parameters have already been reproduced earlier. One of them is seriousness of the crime alleged against the accused and on this parameter, I am of the considered opinion that the applicant is not entitled to be released on bail. Now, we will briefly see how the crime alleged against the applicant is serious in nature. 19. There can be no second opinion that tiger is a critically endangered animal and it being the symbol of pristine health of a forest, its removal from forest can destroy the forest itself and any destruction of the forest will bring about irreversible adverse impact on the quality of human life and society. It may not be an exaggeration to say that any destruction of forest would threaten the very survival of existence of the species of Homosapiens on earth. The devastating effects of extinction of tiger have already been discussed at length by this Court in the case of State of Maharashtra vs. Shri Suraj Pal, decided on 12-12-2014 (Criminal Application No. 99 of 2014) [reported in 2015 (3) Mh.L.J. (Cri.) 387] and they persuasively tell us that please do not harm the tiger in any way. Therefore, killing or hunting of the tiger is against larger public interest and would also have its reverberations on the very survival of human society. From this view point, the crime alleged against the applicant appears to be very serious in nature which has an irreversible adverse impact on the public interest and human society. 20. Apart from seriousness of the crime, the applicant is also not entitled to be released on bail at least on three more parameters. Firstly, there appears to be a reasonable possibility of the applicant committing similar offences as some other cases involving similar allegations have already been registered against him. 20. Apart from seriousness of the crime, the applicant is also not entitled to be released on bail at least on three more parameters. Firstly, there appears to be a reasonable possibility of the applicant committing similar offences as some other cases involving similar allegations have already been registered against him. Secondly, in Criminal Application No. 99 of 2014, State of Maharashtra vs. Shri Suraj Pal, filed P.O.R. No.32/2013 registered against applicant for an offence punishable under section 51 read with sections 9, 39, 44, 49-B and 52 of the Wild Life (Protection) Act, 1972, this Court has discussed about the threat issued by the applicant to one of his co-accused in that crime and found that the applicant has inclinations to influence the course of justice, if released on bail. Thirdly, and lastly, stakes involved in the wild life crimes are very high and, therefore, possibility of the persons-accused of these crimes fleeing from justice cannot be ruled out. 21. The applicant is in custody for quite some time, which according to learned Counsel for the applicant, is now of the period of about 11 months. Learned Counsel for the applicant submits that this being a long period of time, as held in the case of Vivek Kumar vs. State of Uttar Pradesh reported in 2000 (4) Crimes (SC) 261, now there is no need to detain the applicant further in custody in as much as no trial has been commenced. In the said case of Vivek Kumar, the accused was charged with offences punishable under sections 394 and 395 read with Section 149, Indian Penal Code, which are very different from the crime prima facie committed by the applicant in this case. As said earlier, the crime alleged against the applicant tends to adversely affect survival of human society which is not so with offences of robbery or dacoity. Then, there is also a possibility of fair trial being affected in this case. Therefore, in my humble opinion the said case would be of no assistance to the applicant. In the circumstances, I find that this application cannot be allowed and it deserves to be rejected. The application stands rejected.