ORDER

Date : 21.03.2024 Heard Mr. H. Ali, learned counsel for the accused-petitioner as well as Mr. B. Sarma, learned Special Standing counsel, Wildlife.

2. This is an application filed under Section 439 Cr.P.C., seeking bail by the accused-petitioner, namely, Ranjit Pegu, in connection with C.R. (Forest) Case No. 02/2019, registered under Section 2(16)/2(35)/9/27/31/39/40/43/50/52 r/w Section 51 of Wildlife (Protection) Act, 1972 pending in the court of JMFC, Bokakhat.

3. The brief fact of the case is that an officer of Eastern Range, Kaziranga National Park, filed a written complaint before the SDJM, Bokakhat alleging inter alia that four persons were seen entering into the Tamulipathar area without any authority. Accordingly, a forest team was moved to that area but due to darkness and thick forest, search could not be conducted though they heard sounds of two rounds of firing. On the next day, a dead rhino was found in the south bank of Dhansiri river and horn of rhino was taken away by the poacher. Subsequently, five persons were arrested and they had confessed their involvement during interrogation.

4. After investigation into the matter, the investigating officer submitted the offence report, wherein the present petitioner was shown as absconder. Thereafter, the learned Magistrate took cognizance of the offences vide order dated 16.05.2019 and warrant of arrest was issued. As the police has failed to arrest the accused, proclamation was issued against the petitioner along with warrant of arrest. Subsequently, on 15.01.2024, the petitioner was arrested on the strength of warrant of arrest and since then he is in judicial custody. Though the petitioner has preferred a bail application before the learned Magistrate but the said bail application was rejected vide order dated 24.01.2024.

5. It was urged by the learned counsel for the petitioner that on receipt of the offence report, while taking cognizance by the learned Magistrate, issued warrant of arrest at the first instance against the petitioner and thereafter on several occasions, warrant of arrest was issued against him. By referring the judgment of this Court, reported in (2008) 1 GLT 979 (Nazrul Islam vs. State of Assam), the learned counsel for the petitioner has pointed out that in the said judgment, this Court held that- “before issuing proclamation against an accused, the mandate of section 82 is that the court must have ‘reasons to believe’ that the person against whom the warrant has been issued has absconded or concealed himself so that the warrant cannot be executed. Only upon arriving at such a satisfaction, the court is empowered to issue such proclamation under Section 82 Cr.P.C. Law provides for issue of proclamation against an absconder only. Accordingly, it is necessary to examine when an accused can be said to be an absconder. In order to issue a proclamation under Section 82 Cr.P.C. it is sine-qua-non that court must have reason to believe that the person against whom proclamation has been issued “absconded” or is ‘concealing himself’ so that such warrant cannot be executed and only on arriving at such a satisfaction, the court concerned is authorized to publish such proclamation”

6. It is also the submission of learned counsel for the petitioner that the petitioner has been wrongly shown as absconder in the charge-sheet submitted by the investigating officer as he is a permanent resident under Gohpur police station living with his family . The police or the forest official never visited his house to arrest or interrogate him and he is always available in the address given in the offence report.

7. Learned counsel for the petitioner also has submitted that the petitioner is an innocent person and he has not committed any such offence as alleged in the FIR. The allegation levelled against him are false and fabricated. He is a daily wage earner and his family is totally dependent upon him and he is ready to face the trial to prove his innocence.

Considering