Rajib Nath v. The State of Assam

ORDER

13.10.2023 Heard Mr. D.K. Das, learned counsel for the applicant and also heard Mr. B. Sharma, learned Special Public Prosecutor, Forest, for the State respondent.

¶2Apprehending arrest in connection with Offence Report No.CIR/01 of 2023, dated Page No.# 2/5

14.06.2023, under section 49/49B/51 of the Wild Life Protection Act read with Wild Life Protection (Assam Amendment) Act, 2009, this application, under Section 438 of Cr.P.C., is preferred by applicant Sri Rajib Nath for grant of pre-arrest bail.

¶3It is to be noted here that the above noted case has been registered on the basis of one Pre-Wild Life Offence Report, dated 15.06.2023.

¶4The essence of allegation made in the said Pre-Wild Life Offence Report, dated

15.06.2023, Shri Rajib Gogoi, Forester, Crime Investigation Range, Biswanath Chariali, on the basis of intelligence impute, received by Jatindra Mohan Das, AFS, Range Officer, Crime Investigation Range, had arrested one Aswini Patiri and Indeswar Pathori in connection with illegal tread of one Rhino Horn by some people of Gohpur, Assam and Arunachal Pradesh.

¶5Mr. D.K. Das, learned counsel for the applicant submits that the applicant is innocent and no way involved in the offence alleged in the Pre-Wild Life Offence Report. Mr. Das further submits that the applicant was granted the privilege of interim pre-arrest bail by this court vide order dated 14.08.2023 and pursuant to the said order, the applicant had appeared before the I.O. and his statement is recorded and in view of the co-operation, being extended by him with the investigating agency, and his custodial interrogation is no longer required and therefore, Mr. Das contended to make the interim order dated 14.08.2023 absolute, in the same terms and conditions.

¶6Per contra, Mr. B. Sharma, the learned Addl. P.P. has vehemently opposed the petition. Producing the Case Diary before this court, Mr. Sharma submits that the I.O. has collected sufficient materials to show complicity of the applicant with the offences alleged in the Pre-Wild Life Offence Report, and that the co-accused are yet to be arrested and the Rhino Horn is yet to be recovered and that the investigation is going on and if the interim bail is made absolute then it will hamper the investigation and it will be difficult to arrest the co-accused and to recover the Rhino Horn and that custodial interrogation of the applicant is very much necessary in the interest of investigation and therefore, it is contended to dismiss this petition. Page No.# 3/5

¶7Having heard the submission of learned Advocates for both the sides, I have carefully gone through the petition and the documents placed on record and also perused the case diary with the assistance of Mr. Sharma, the learned Special P.P.

¶8It is to be noted here that Hon'ble Supreme Court in the case of State represented by CBI vs. Anil Sharma reported in (1997) 7 SCC 187 has held as under:- "We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders."

¶9It is to be mentioned here that in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in (2011) 1 SCC 694, specially to para 112, Hon'ble Supreme Court had laid the parameters to be taken into consideration by the Court, while granting anticipatory bail, which are as follows:- "122. 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 comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any Page No.# 4/5 cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(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 accused 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 anticipatory 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 considered 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."

¶10It appears from the case diary that the I.O. has collected sufficient incriminating materials in support of the allegation made in the Pre-Wild Life Offence Report, dated

15.06.2023. Further it appears that investigation is going on and co-accused are yet to be arrested and the Rhino Horn is yet to be recovered. And if the interim order is made Page No.# 5/5 absolute at this stage then it would hamper the investigation and consequently, it would be difficult to apprehend the co-accused and recover the Rhino Horn.

¶11Having considered aforementioned facts and circumstances, and also having considered the nature and gravity of the offence, and the punishment prescribed for the same, as well as the submission of learned Advocates for both the sides, and also in view of the observation, so made in the case of Siddharam Satlingappa Mhetre (supra) as discussed herein above, and also considering the ratio laid down in the case of Anil Sharma (supra) this Court left unimpressed by the submission of Mr. Das, learned counsel for the applicant, that custodial detention of the applicant is not warranted in this case. His custodial interrogation is indispensible in the interest of investigation. Accordingly, striking a balance between the individual right of the applicant and that of the societal interest, this Court is of the view that this is not a fit case where the privilege of pre arrest bail can be extended to the applicant and therefore, the petition stands rejected. The interim order dated 14.08.2023, stands vacated. The case diary be returned. Comparing Assistant Sd/- Robin Phukan JUDGE

Page No.# 1/5 GAHC010171722023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2739/2023 RAJIB NATH S/O SRI SAMBHU NATH VILL- MAGANI KACHARI P.O. AND P.S. GOHPUR DIST. BISWANATH, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP/ STANDING COUNSEL FOREST DEPARTMENT. Advocate for the Petitioner : M PATHAK Advocate for the Respondent : SPECIAL PP ASSAM BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN