Court Rejects Its Own Initiative To Release Poachers On Bail
In a series of unprecedented events, the Chief Judicial Magistrate of Nagpur after considering the objections raised by Advocate Kartik N. Shukul, withdrew his own initiative to release poachers on bail, accused in a tiger poaching case under the Wild life Protection Act.
In a rather peculiar order dated February 3, 2017, the Chief Judicial Magistrate – Nagpur, directed the Forest Department – State of Maharashtra, to make a submission on the issue of Section 436-A of The Code of Criminal Procedure (CrPC), involving the tiger poachers, Mamru Patlepawar, Chika Patlepawar, Shiri Chawhan, and why they should not be released on bail, having served three and a half years under trial.
This order was unusual for two main reasons: one, that Section 436-A ought to be invoked only for petty crimes and not serious offences like tiger poaching and two, that the order passed by the CJM, initiating bail proceedings under Section 436A was, suo-moto! (when a government or a court official acts on its own initiative)
Special Public Prosecutor, Advocate Kartik. N. Shukul, appearing for the State of Maharashtra, opposed the initiative of the court and requested that the state be given an opportunity to argue against the proposed release of the poachers.
To appreciate the situation at hand, it would be worthwhile to discuss the proviso contained in Section 436-A of the CrPC.
At the outset it must be mentioned that Section 436-A is conditional in nature. It says:
“436-A. Maximum period for which an undertrial prisoner can be detained. – Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.”
The first proviso of the section provides for an opportunity of hearing to the public prosecutor wherein the public prosecutor may seek extension beyond the prescribed detention period under Section 436A. After hearing the public prosecutor, the court is at liberty to extend the imprisonment of the poachers beyond the period specified under section 436-A. The law therefore provides for detention beyond half of the jail term of the punishment prescribed.
Shukul argued that the poachers were nomadic people belonging to the Pardhi,Bahelia community, and did not have any permanent residence or immovable property to their names. He added that the accused were habitual offenders who routinely engaged in illegal activities and crimes punishable under the Wild Life Protection Act, 1972. The state also pointed out that the poachers had been misleading the court and had not furnished their actual place of residence. They had supplied different addresses in their applications and statements.
Relying on the judgment of the High Court in the case of State of Maharashtra, Forest Department against Suraj Pal, Shukul argued that the seriousness of the crime in this particular case had to be gauged beyond the basic parameters of criminal jurisprudence. The Wild Life Protection Act, 1972 being a special act must be considered in light of the specific provisions contained therein, unrestricted by the general parameters of Criminal Jurisprudence.
Shukul further argued that the powers under Section 436-A must not be casually invoked to extend the liberty of bail to poachers, who most likely will abuse the said liberty. If released on bail there is every possibility that the poachers will not attend the trial. He reiterated that until now, no application had been filed by the poachers seeking invocation of powers under Section 436-A. Therefore, the court must preclude itself from the poachers exercising the powers under Section 436-A.
The primary ground on which the state opposed the bail of the poachers, was that the delay in trial was on account of the poachers filing frivolous applications and adjourning the trial for trivial reasons. Shukul contended that the period of delay ought to be deducted while computing the detention period, as prescribed under Section 436-A.
Shukul also brought to the court’s attention an application filed by the poachers Mamru and Chika under Section 7A of the Juvenile Justice Care and Protection of Children Act, 2000. The said application was filed on April 23, 2014 and came to be disposed off as per an order dated April 13, 2016, after the court rejected the arguments of the poachers.
While dealing with the aforesaid application, various adjournments were sought by the counsel for Mamru and Chika. In fact, even after the doctors who had issued the ossification report were examined by the Special Public Prosecutor, the counsel for the poachers kept delaying the said application. Resultantly, a period of two years had passed from the date of filing of the Section 7A application. Because of the delay, the trial could not be initiated.
The poachers also filed multiple bail applications impeding the trial until all the aforementioned applications had been disposed-off.
Shukul therefore requested the court that at least a period of two years be deducted while computing the detention period as contemplated under Section 436-A of CrPC. If the period of Section 7A application is deducted, then the minimum requirement under Section 436-A would not be met and the poachers therefore cannot be released on bail under Section 436-A of the CrPC. The State of Maharashtra also cited various examples of poachers who were released on bail and thereafter evaded the course of law.
When contacted, Advocate Kartik.N.Shukul said to Sanctuary: “It was rather strange for the Court to initiate such an action suo-moto, but I’m glad that I managed to change the opinion of the court. Such results can be replicated throughout India, provided the prosecution and the prosecutors diligently project before the court the seriousness of the crime and the risks of granting bail to the poachers”.
The CJM vide order dated March 15, 2017, was pleased to consider the objections raised by Adv. Kartik. N. Shukul, consequently withdrawing its own initiative to release the poachers on bail. Section 436-A is normally, if not always, initiated on an application by the accused for the grant of bail. Strangely, in this case, it was initiated not by the accused, but by the CJM suo-moto. Furthermore, once initiated, the courts grant bail to the accused when a substantial period of the prescribed punishment is over. However, here, Shukul argued that if the period of delay (two years in this particular case) is deducted while computing the detention period, as prescribed under Section 436-A, the minimum detention period would not be met by the poachers, thus leaving them unqualified to apply for bail. These events are absolutely unprecedented in the history of the Wild Life Protection Act as also Section 436-A, making this case perhaps the first one under the WPA, where bail was not granted to the accused.