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2020 DIGILAW 1434 (KAR)

Thabaresh @ Tabbu v. State Of Karnataka

2020-07-17

P.N.DESAI

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JUDGMENT P N Desai, J. - It is found that at Page Nos.19 to 23 documents were produced by learned counsel for the petitioner, are irrelevant and not connected to this petition. Learned counsel for the petitioner shall remove them from the case file. 2. The petitioner has filed this petition under Section 438 of Code of Criminal Procedure seeking grant of anticipatory bail in FOC.No.60/2019-20 of Deputy Range Forest Office Section Kavithal, District Raichur for the offences punishable under Sections 24(c) (2), (e), 62, 71(a), 84 and 86 R/w 104-B of the Karnataka Forest Act, 1963. 3. The brief contention of the petitioner is that complaint was lodged by the Deputy Range Forest Officer Section Kavithal alleging that on 02.03.2020 he has received credible information about the cutting of Sandalwood Trees in the reserved forest area of Thimmapur village. The complainant and his staff and panchas reached the reserved forest area and found in torch light at a distance of 30 meters from Thimmapur road some persons. They surrounded the said place. There were three persons, who after witnessing the forest officials attempted to run away from the spot. Thereafter accused Nos.1 and 2 were apprehended at the spot and petitioner however escaped. On interrogation accused Nos.1 and 2 they informed their names and other details. Thereafter, they inspected the spot and found that accused persons had cut 14 sandalwood trees and also found 08 sandalwood billets totally weighing 20.99 K.Gs and 14 pieces of chakke of different sizes. They found a motorcycle bearing Reg.No.KA-28-EX-2063 belonging to accused and axeblade and seized the said articles under Mahazar at the spot and arrested the accused persons. On the basis of complaint, the Deputy Range Forest Officer Section Kavithal has registered the case in FOC.No.60/2019-20 for the aforesaid offences. 4. Learned counsel for the petitioner contended that the learned II Additional District and Sessions Judge, Raichur has rejected the anticipatory bail petition. So, petitioner has filed this petition on the ground that petitioner is innocent person and he has not committed any crime. He further contended that rejection of the petition filed under Section 438 of Code of Criminal Procedure on the premise that, there is a bar under section 104-D of the Karnataka Forest Act, 1963 for grant of anticipatory bail. So, petitioner has filed this petition on the ground that petitioner is innocent person and he has not committed any crime. He further contended that rejection of the petition filed under Section 438 of Code of Criminal Procedure on the premise that, there is a bar under section 104-D of the Karnataka Forest Act, 1963 for grant of anticipatory bail. Therefore, the reported decision of this Court has held that, under Section 104-D of the Karnataka Forest Act, 1963 there is no Bar for granting anticipatory bail under Section 438 of Code of Criminal Procedure. Only on the basis of voluntary statements of accused Nos.1 and 2 this petitioner has been made as accused. The alleged offences are not punishable with death or imprisonment for life. The investigation is already completed and this petitioner has no criminal antecedents. The petitioner is from a respectable family and having movable and immovable properties. He further stated that the other two accused Nos.1 and 2 are already released on bail by the II Additional District and Sessions Judge at Raichur in Crl.Misc.No.267/2020 dated 12.05.2020. The petitioner is ready and willing to abide by any condition. So, with these main grounds, the petitioner prays to allow the petition. 5. Per contra, the learned High Court Government Pleader has filed objections contending that during the interrogation accused Nos.1 and 2 informed their names and other details. The accused persons had cut 14 sandalwood Trees and also 08 sandalwood billets totally weighing 20.99 K.Gs and 14 pieces of chakke of different sizes. The anticipatory bail was rejected by the II Additional District and Sessions Judge at Raichur in view of Section 104-D of the Karnataka Forest Act, 1963 which restricts the power of Court to grant anticipatory bail. So, the petitioner is not entitled for anticipatory bail. Accordingly, the learned High Court Government Pleader prayed to reject the bail petition. 6. Heard Sri. Ganesh Naik, learned counsel for the petitioner and Sri. Sharanabasappa M. Patil, the learned High Court Government Pleader appearing for respondent State. Perused the material produced before the Court. 7. On perusing the FIR and complaint it is evident that admittedly according to prosecution accused Nos.1 and 2 in this case were apprehended at the time of raid and they were produced before the Court. Sharanabasappa M. Patil, the learned High Court Government Pleader appearing for respondent State. Perused the material produced before the Court. 7. On perusing the FIR and complaint it is evident that admittedly according to prosecution accused Nos.1 and 2 in this case were apprehended at the time of raid and they were produced before the Court. They were granted bail under Section 439 of Code of Criminal Procedure before the II Additional District and Sessions Judge at Raichur in Crl.Misc.No.267/2020 dated 12.05.2020. It is evident that already properties were seized. Admittedly, this petitioner was not apprehended. 8. On perusing the said panchanama it is evident that on the day of raid the Forest Range Officer, his Staff along with panchas went to reserved forest area. But it is not mentioned in which vehicle they went and how many Forest Staff accompanied the said Forest Officer is not forthcoming. The panchanama indicates that there are four panchas. So, how many staff is there is not forthcoming. It is also not mentioned that they were cutting sandalwood trees. It is only stated that on seeing the torch light some persons ran away and two persons were caught and another person could not be caught. So, if there are so many persons, how one person was escaped is not forthcoming. On perusing the panchanama it is mentioned that it is day time at 06.00 a.m. to 10.00 a.m. the panchanama was drawn. If that is so, then where they found torch light is not forthcoming. Even there is some contradiction as to when they went to the said Forest. Because it is mentioned the date as on 02.03.2020 they went to Forest and found accused in torch light. But when accused were produced with requisition, it is mentioned as 01.03.2020 the said case came to be registered. The said letter is addressed by the Range Forest Officer dated 02.03.2020 to JMFC Court Manvi. There are discrepancies in the FIR itself and in the letter. If it is day time what is necessity of torch light is not forthcoming. 9. There is no allegation against this petitioner that he was involved in other similar type of offences. The alleged offences are not punishable with death or imprisonment for life. Only on the basis of voluntary statements of co-accused, the name of this petitioner was shown. If it is day time what is necessity of torch light is not forthcoming. 9. There is no allegation against this petitioner that he was involved in other similar type of offences. The alleged offences are not punishable with death or imprisonment for life. Only on the basis of voluntary statements of co-accused, the name of this petitioner was shown. Of course on perusing the panchanama and registration of case in FOC.No.60/2019-20 appears to be suspicious one, as how the number can inserted before registering the case. Only ground on which the bail was rejected by the learned Sessions Court for this petitioner is that there is Bar under Section 104-D of the Karnataka Forest Act, 1963, to grant bail. 10. Learned counsel for the petitioner relied upon the judgment of this Court in Crl.P.No.6296/2018 dated 20.12.2018, wherein this Court has referred the earlier decision rendered by this High Court in the case of H.S.Manjunath vs. State of Karnataka, (1994) ILR(KAR) 3302 . Further, the decision in the case of C. Abdul Hameed vs. State by Belthangady Police, (1999) 2 KarLJ 679 wherein it is held as under:- "There is no provision making Section 438, Cr.P.C., inapplicable to the cases arising under the said Act. Therefore, there is no prohibition or bar for entertaining a petition for anticipatory bail filed under Section 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 under Section 104-D of the Act, the Court is precluded from exercising its discretion in granting bail". 11. So, here in this case the petitioner admittedly not apprehended or he was caught with cutting or transporting Trees. His name is included only on the basis of voluntary statements alleged to have been given by the co-accused. That has to be proved at the time of trial. The investigation is already completed and other co-accused are released on bail. Hence, at this stage the petitioner has placed the materials before the Court to show that he is entitled for anticipatory bail. 12. That has to be proved at the time of trial. The investigation is already completed and other co-accused are released on bail. Hence, at this stage the petitioner has placed the materials before the Court to show that he is entitled for anticipatory bail. 12. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consider, (1) the nature and seriousness of the offence, (2) character of the accused, (3) circumstances which are peculiar to accused, (4) reasonable probabilities of presence of the accused not being secured at trial, (5) reasonable apprehension of witnesses being tampered with and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence. 13. The apprehension of the prosecution can be meted by imposing stringent conditions on the petitioner. 14. Hence, in my considered view the petitioner is entitled to be enlarged on anticipatory bail. Accordingly, I proceed to pass the following ORDER The petition filed by the petitioner under Section 438 of Code of Criminal Procedure is allowed. Consequently, the petitioner by name Thabaresh @ Tabbu s/o Davalsab Doddamam is ordered to be enlarged on anticipatory bail in the event of his arrest in connection with FOC.No.60/2019-20 of Deputy Range Forest Office Section Kavithal, District Raichur, for the offences punishable under Sections 24(c) (2), (e), 62, 71(a), 84 and 86 R/w 104-B of the Karnataka Forest Act, 1963 by executing a self bond for Rs.50,000/- with a surety for the likesum, on the following conditions. i) The petitioner shall not tamper with the prosecution witnesses directly or indirectly. ii) The petitioner shall not commit similar offences of which he is accused or commission of which he is suspected. iii) The petitioner shall appear before the Investigating Officer in this case within 15 days from the date of this order. iv) The petitioner shall surrender before the concerned Investigating Officer and the Investigating Officer shall complete the investigation as expeditiously as possible and on completion of interrogation and recovery of material objects if any, then the petitioner shall be released on bail by the Police on the terms and conditions mentioned in this order. iv) The petitioner shall surrender before the concerned Investigating Officer and the Investigating Officer shall complete the investigation as expeditiously as possible and on completion of interrogation and recovery of material objects if any, then the petitioner shall be released on bail by the Police on the terms and conditions mentioned in this order. v) The petitioner shall appear before the Investigating Officer/Deputy Range Forest Office, Section Kavithal and mark his attendance once in a fifteen days for a period of three months or till filing of charge sheet whichever is earlier. vi) The petitioner shall co-operate with the Investigating Officer in the investigation.