Ramesh vs State Through
2022 Latest Caselaw 971 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                              R
         DATED THIS THE 21st DAY OF JANUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.9975/2021

BETWEEN:

RAMESH
S/O. MARKIN
AGED ABOUT 40 YEARS
R/AT HAKKIPIKKI COLONY
HOSUR HOBLI
GAURIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-562 101.               ... PETITIONER

               (BY SRI DHIRAJ A.K, ADVOCATE)
AND:

STATE THROUGH
DY. RFO, HOSUR SECTION
GAURIBIDANUR RANGE
CHIKKABALLAPURA DISTRICT-562 101.             ... RESPONDENT

                (BY SRI VINAYAKA V.S, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
THE EVENT OF HIS ARREST IN FOC.NO.51/2020-21 (CASE
NO.05/2020-21) REGISTERED BY DEPUTY RANGE FOREST
OFFICER, GOWRIBIDANUR RANGE, GOWRIBIDANUR NOW
PENDING IN PCR. NO.56/2020 ON THE FILE OF THE LEARNED
PRL. CIVIL JUDGE AND J.M.F.C., GOWRIBIDANUR FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 2, 9, 50 READ WITH
SECTION 51 OF WILD LIFE PROTECTION ACT.
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     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.01.2022, 'THROUGH VIDEO
CONFERENCE' THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:


                             ORDER

This petition is filed under Section 438 of Cr.P.C. praying

to enlarge the petitioner/accused on bail in the event of his

arrest in FOC No.51/2020-21 (Case No.05/2020-21) registered

by Deputy Range Forest Officer, Gauribidanur Range,

Gauribidanur now pending in PCR No.56/2020 on the file of

Principal Civil Judge & JMFC., Gauribidarnur, for the offences

punishable under Sections 2, 9, 50 read with 51 of the Wild Life

(Protection) Act, 1972.

2. Heard the learned counsel appearing for the

petitioners and the learned High Court Government Pleader

appearing for the respondent/State.

3. This matter was heard and reserved on 10.01.2022.

Having heard the learned counsel appearing for the petitioner

and the learned High Court Government Pleader appearing for

the respondent-State and considering the factual aspects of the

case, it is the case of the prosecution that the respondent -

Deputy Range Forest Officer, Gauribidanur Range, detected the

crime on 08.07.2020 at Hakki-Pikki Colony, Kurudi beat, Hosur

Hobli, Gauribidanur Range. The respondent recovered three

number monitor lizard and three number gray francolin, in the

house of petitioner - Ramesh in the said colony. The respondent

being a public servant under Section 59 of the Wild Life

(Protection) Act, 1972 has filed a complaint under Section 55(b)

read with Section 51 of the Wild Life (Protection) Act, 1972 and

the said case is numbered as PCR No.56/2020-21. The Trial

Court took the cognizance of the said offence and registered a

case and issued summons to the accused vide order dated

15.07.2020 and fixed the date of appearance on 05.10.2020 of

this petitioner. The accused was served with summons and

appeared through his counsel and also sought for exemption by

filing application under Section 205 of Cr.P.C., instead of Section

317 of Cr.P.C., which was allowed by the Trial Court, yet, the

accused remained absent on 06.10.2021. Hence, NBW had been

issued against the accused from time to time. Hence, the

petitioner has approached this Court by filing the present

petition.

4. The main contention of the petitioner before this

Court is that no prima facie case is made out against the

petitioner and the very search conducted by the complainant is

not in accordance with Section 50(8) of the Wild Life (Protection)

Act, 1972. As per the complaint without a search warrant the

complainant based on some information allegedly searched the

house of petitioner and conducted seizure under Mahazar and

the very seizure itself is doubtful. The learned Magistrate ought

not to have issued notice to the petitioner and committed an

error in taking cognizance. It is also contended that there is no

any direct evidence and also the alleged lizard had kept in the

vegetable crate outside the house and not inside the house and

the very procedure adopted by the respondent by filing a private

complaint based on the seizure done under a Mahazar and

without any independent witness creates a doubt about the

veracity of the seizure. The Sessions Judge ought to have

admitted the petition filed under Section 438 of Cr.P.C., instead

of rejecting the same. Hence, it requires an interference of this

Court.

5. Per contra, the learned High Court Government

Pleader appearing for the State would submit that the very

petition itself is not maintainable and the private complaint is

filed under Section 200 of Cr.P.C., as envisaged under Section

55(b) of the Wild Life (Protection) Act, 1972 read with Section

51 of the Wild Life (Protection) Act, 1972. The respondent being

a public servant under Section 59 of the Wild Life (Protection)

Act, 1972 empowered to file a complaint and the complaint is

also filed in terms of the special enactment. Learned High Court

Government Pleader also would submit that the learned

Magistrate having considered the contents of the complaint and

looking into the material took the cognizance and issued the

summons. The petitioner also appeared through his counsel by

filing a necessary application, which was allowed by the Trial

Court, but he failed to appear before the Trial Court afterwards.

Hence, NBW was issued. Hence, he is not entitled for the relief of

anticipatory bail. Once the accused/petitioner has appeared

before the Trial Court through his Counsel and ought to have

made an application for recalling the order before the Trial Court

instead of invoked Section 438 of Cr.P.C.

6. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State, the points that would arise for the

consideration of this Court are:

(i) Whether Section 438 Cr.P.C., can be invoked once the petitioner appeared through the Counsel and sought for exemption and the same was allowed?

(ii) What Order?

Point No.(i):

7. Having heard the respective counsel and considering

the material available on record, it is not in dispute that a

private complaint is filed as envisaged under the special

enactment. It is the case of the prosecution that the respondent

has seized three number monitor lizard and three number gray

francolin, in the house of the petitioner - Ramesh in the said

colony. It is also not in dispute that after issuance of summons,

which has been served on the petitioner herein, he had appeared

through Counsel and an exemption was sought under Section

205 of Cr.P.C., instead of Section 317 of Cr.P.C., and the same

was also allowed by the Trial Court, he remained absent

thereafter and NBW was issued against him. It has to be noted

that nowhere in the petition has stated that the counsel was

engaged before the Trial Court and sought for an exemption and

the appearance through counsel has been suppressed by the

petitioner.

8. The learned counsel appearing for the petitioner in

support of his arguments, he contend that upon even though the

petitioner had appeared through his Counsel, he can maintain

the petition under Section 438 of Cr.P.C., and engaging the

counsel and appearing through the Counsel will not take away

the rights of approaching the Court by invoking Section 438 of

Cr.P.C.

9. The learned counsel appearing for the petitioner in

support of his arguments, he relied upon the judgment of the

Apex Court in the case of Niranjan Singh and another v.

Prabhakar Rajaram Kharote and others reported in AIR

1980 SC 785, wherein, the Apex Court discussed with regard to

the custody where the accused had appeared and surrendered

before the Sessions Judge, the Judge would have jurisdiction to

consider the bail application as the accused would be considered

to have been in custody within meaning of Section 439 of

Cr.P.C., and no dispute with regard to the fact that once he

appeared and surrendered before the Court, it amounts to a

custody and he maintain a petition under Section 439 of Cr.P.C.,

and in the judgment also Apex Court interpreted the word

"custody".

10. The learned counsel also relied upon the judgment of

the Apex Court in the case of Directorate of Enforcement v.

Deepak Mahajan and another reported in AIR 1994 SC

1775, wherein the words 'arrest', 'custody' and 'powers' under

the Act discussed. The Apex Court has also observed that

whether the person is under arrest or not, depends not on the

legality of the arrest, but on whether he has been deprived of his

personal liberty to go wherever he pleases. When used in the

legal sense in connection with criminal offences, an 'arrest'

consists in the taking into custody of another person under

authority empowered by law for the purpose of holding or

detaining him to answer a criminal charge or of preventing the

commission of a criminal offence. No doubt, the Apex Court in

both the cases discussed with regard to the meaning of custody

and the word 'arrest'. But in the case on hand, the Court has to

look into the aspect of whether the petitioner can seek an

anticipatory bail once he appeared through counsel before the

Trial Court and sought for an exemption. The Apex Court in

Niranjan Singh's case (supra), held that when the accused

appeared and surrendered that he has been in custody and

hence the judgment will not come to the aid of the petitioner.

11. This Court would like to refer to the judgment of this

Court in the case of S.R. Nagaraj v. State of Karnataka

reported in 2011 SCC OnLine Kar 3301, wherein, this Court

has observed that when a private complaint has been lodged and

after investigation charge-sheet has been filed, when the

petitioner after service of summons has appeared before the

Court through an Advocate and has filed an exemption

application. The petitioner instead of seeking bail before the Trial

Court has approached this Court under Section 438 of Cr.P.C.,

which is not maintainable. The issue involved in the matter

before this Court is also similar to the facts of the case. In this

case also, the petitioner appeared through counsel and sought

for an exemption and the said exemption application was also

allowed and permitted to appear him through counsel and once

the Trial Court permitted the petitioner to appear through his

Counsel and allowed the application, the petitioner cannot invoke

Section 438 of Cr.P.C., and can invoke Section 439 of Cr.P.C., if

he does not appear before the Court and whether he had

appeared through Advocate or physically, is not the question and

once availed the benefit before the Trial Court appearing through

counsel and sought for an exemption and the same has been

entertained, question of invoking Section 438 of Cr.P.C., again

does not arise.

12. This Court also would like to refer to the order of this

Court in the case of K. Somasekhar v. State of Karnataka

reported in 2015 SCC OnLine Kar 8412, wherein also similar

circumstances arises. This Court in paragraph No.3 referring to

the judgment of this Court in the case of Venkatachalaiah and

Others v. State of Karnataka, by Kadugodi Police,

Bengaluru and others reported in ILR 2003 KAR 3985, and

the order in Criminal Petition No.23/2013, held that once the

accused appeared before the Trial Court and thereafter on

account of his absence on any later date warrant is issued by the

Court for deliberate absence is concerned, the remedy of

anticipatory bail under Section 438 Cr.P.C. is not available to

such person. However, liberty is reserved to the petitioner to file

necessary application before the Trial Court for recalling the

issuance of NBW.

13. This Court also would like to refer to the Division

Bench Judgment of this Court in Venkatachalaiah's case

(supra), wherein, discussed with regard to Sections 438(1) and

438(3) of Cr.P.C., and also held that even after filing of charge-

sheet also, the accused can approach the respective Courts

invoking Section 438 of Cr.P.C., but categorically held that in

paragraph No.27 that in the normal course where warrant is

issued in pursuance of filing charge-sheet or issuance of

summons and non-appearance of the party, the remedy under

Section 438(1) of Cr.P.C., is available. It is further observed that

however, we would like to emphasis that where in a criminal

proceeding a party has already appeared once or more than one

date and thereafter does not appear in the Court, the Court in

such circumstances issues non-bailable warrant and the said

warrant issued is in view of the defaulting conduct on the part of

the accused and in such cases a petitioner cannot invoke the

jurisdiction of the Court under Section 438(1) of Cr.P.C. and he

is bound to obey the court order or warrant by first appearing

before the Court and than by satisfying the Court as to the

sufficient cause for his absence, pray for bail under Section 439

of Cr.P.C.

14. But in the case on hand, it is not in dispute that the

petitioner had appeared before the Trial Court through an

advocate and also filed an application under Section 205 of

Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the

day. It is also not in dispute that the said application was

allowed. Once an application seeking an exemption was allowed,

the petitioner again cannot invoke Section 438 of Cr.P.C., and

instead of filing an application for recalling the warrant issued by

the Court for non-appearance has approached this Court and

also the Trial Court. Apart from that, the appearance of the

petitioner before the Trial Court has been suppressed before this

Court and nowhere in the petition has stated that he had

appeared through the Counsel and only on perusal of the order

of the Trial Court, it is clear that he had appeared through the

Counsel and exemption application was allowed but he did not

appear before the Court. Hence, NBW was issued. When such

being the factual aspects of the case, once he appeared through

the Court, whether it is through Counsel or personally, he cannot

seek again anticipatory bail. The very contention of the learned

counsel for the petitioner is that the petitioner appeared before

the Trial Court through an Advocate is not amount to custody or

an arrest, cannot be accepted and he was permitted to appear

through Counsel and once permitted to appear through counsel

he cannot contend that he had not appeared physically. The

petitioner legally permitted to appear and once he has been

permitted to appear legally he cannot contend that he was not

appeared before the Trial Court and hence petition under Section

438 of Cr.P.C., is not maintainable.

15. The Apex Court also given interpretation with regard

to the custody and for invoking Section 439 of Cr.P.C., and not

for Section 438 of Cr.P.C., and also with regard to the meaning

of arrest discussed in Directorate of Enforcement v. Deepak

Mahajan and another 's case (supra), and not the question of

arrest before this Court also. In the case on hand when the

private complaint was filed, the learned Magistrate took the

cognizance and issued the summons. In pursuance of the said

summons he appeared through the Counsel before the Trial

Court. Once he had appeared before the Trial Court he cannot

seek for an anticipatory bail again invoking under Section 438 of

Cr.P.C. This Court in S.R. Nagaraj and K. Somasekhar's case

(supra), and also considering the principles laid down in

Venkatachalaiah's case (supra), categorically held that once an

advocate appeared through counsel, he cannot seek for an

anticipatory bail again. When such being the interpretation of

this Court and also the principle laid down in the judgments

referred supra, the petitioner cannot maintain any petition

invoking Section 438 of Cr.P.C. Hence, the petition is liable to

be dismissed.

16. This Court does not want to consider the matter on

merits, whether he is entitled for anticipatory bail or not since

the very maintainability is questioned before this Court and this

Court comes to the conclusion that the petition under Section

438 of Cr.P.C., is not maintainable and an option is given to the

petitioner to approach before the Trial Court by filing necessary

application for recalling of the warrant issued against him as held

by this Court in K.Somasekhar's case (supra), and seek

appropriate relief.

Point No.(ii):

17. In view of the discussions made above, I pass the

following:

ORDER

(i) The bail petition is dismissed as not maintainable.

(ii) The petitioner is given liberty to approach the Trial Court by filing necessary application for recalling the warrant issued against him.

Sd/-

JUDGE

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