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1983 DIGILAW 215 (PAT)

Khursid Anwar v. State of Bihar

1983-08-22

M.P.VARMA

body1983
Judgment M.P. Varma, J. The petitioner Khursid Anwar is the Prakhand Vikash Padadhikari at Paraiya, under police station Paraiya in the district of Gaya. He has been summoned by the Chief Judicial Magistrate by order dated 6.1.1983 to take trial for an office punishable under section 51 of the Wild Life Protection Act, (1972 (Act No. 53) of 1972), hereinafter referred to as ‘the Act’. 2. The case against the petitioner was registered at P.S. Paraiya, on the report of one Ramji Singh of village Dukhinar under P.S. Paraiya. Ramji Singh is known as Pramukh of the village. In the petition of complaint filed before the Officer in charge, Paraiya, Ramji Singh alleged that he saw the petitioner carrying one Neel Gai to his quarter in a Jeep bearing. No BHB 91. The other companions of the petitioner were also there in the Jeep. It is alleged that when the Jeep entered into the quarter the animal was dragged out from the vehicle for being taken in side. 3. On the written company submitted by the Paraiya drew up a first information report and registered a case under section 3 read with section 4 of the Bihar Preservation and Improvement of Animal Act, 1955 (Bihar Act, 2 of 1956) and took up the investigation of the case and finally submitted charge-sheet against the petitioner for his prosecution under section 51 of the Act. In the final from submitted by the Police (copy of which has been filed as Annexure-2) the Police Stated that no case under section 3 read with Sec. 4 of the Bihar Preservation and Improvement of Animals Act, 1955 was made out. But it transpired that it constituted an offence punishable Act, 1972. The Police further stated therein that reference was being made to the District Forest Officer of Gaya for taking necessary action for prosecution of the petitioner for the offence alleged. 4. Sri Shakeel Ahmad Khan, learned counsel for the petitioner, has not raised any dispute whether the offence alleged falls under the Bihar Preservation and improvement of Animals Act, 1955 or under the Wild Life Protection Act, 1972. But it has been argued that in either case the learned Chief Judicial Magistrate committed an error in taking cognizance of the offence by order dated 6.1.1983 and summoning the petitioner for taking his trial. But it has been argued that in either case the learned Chief Judicial Magistrate committed an error in taking cognizance of the offence by order dated 6.1.1983 and summoning the petitioner for taking his trial. It has been contended that there is a clog on the power of the court in taking cognizance of the offence alleged in either of these two cases. No court can take cognizance of any offence punishable under either of the aforesaid two Acts, unless there is a complaint made by or under the order of the prescribed authority under those two Acts Section 37 of the Preservation & Improvement of Animals Act, 1955, read as follows:- "No Court shall take cognizance of any offence under this Act, unless upon a complaint made by or under the order of the prescribed authority." There is similar provision under section 55 of the Wild Life (Protection) Act, 1972, which also reads as follows :- "No court shall take cognizance of any offence against this Act, except on the complaint of the Chief Wild Life Warden or such other Officer as the State Government may authorise in this behalf." 5. In the instant case, admittedly there is no complaint made by the Wild Life Warden or such other Officer who may authorise in this behalf for prosecution of the petitioner under the Wild Life (Protection) Act. It has already been pointed out that, according to the Police Officer, investigating the case the facts alleged do not constitute any offence under section 3 read with section 4 of the Bihar preservation & Improvement of Animals Act. The Police being conscious of the fact stated in the final form that the offence is punishable under section 51 of the Wild Life (Protection) Act, stated therein that a reference was being made to the District Forest Officer at Gaya for launching prosecution. There was no complaint before the Chief Judicial Magistrate, by Chief Wild Life Warden or by any officer and authorised by the Govt. The order dated 6.1.1983 clearly speaks that the learned Chief Judicial Magistrate acted on the final report (i.e. the report submitted by the Police after close of the investigation under section 173 of the Code of Criminal Procedure) submitted by the Police. Learned counsel for the State. The order dated 6.1.1983 clearly speaks that the learned Chief Judicial Magistrate acted on the final report (i.e. the report submitted by the Police after close of the investigation under section 173 of the Code of Criminal Procedure) submitted by the Police. Learned counsel for the State. Shri Shyama Nand Jha, has also very fairly conceded that in view of the limitations imposed On the court under the aforesaid two Acts the Chief Judicial Magistrate was not competent to take cognizance of the offence On the Police report; and, in this view of the matter, the impugned order dated 6.1.1983 is fit to be set aside. 6. In the circumstances, referred to above, it is not necessary to decide, while disposing of this application, whether the facts as alleged in the first information report; or the facts as mentioned in the final form constitute any offence against the petitioner for his prosecution in the court below or not. 7. In the circumstances, on the question of law as raised above, this application succeeds and the impugned order dated 6.1.1983 is set aside. Application allowed.