Point of Law : 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.

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,