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2012 DIGILAW 632 (UTT)

Bhagirath Rai v. State of Uttarakhand

2012-10-01

SERVESH KUMAR GUPTA

body2012
Judgment : Servesh Kumar Gupta, J. 1. By means of this petition, the challenge is to the judgment and order dated 25.08.2012 passed by Chief Judicial Magistrate, Champawat and that of dated 03.09.2012 rendered by District and Sessions Judge, Champawat whereby both the courts below have refused to release the vehicle of accused Bhagirath Rai. 2. A Bolero Jeep No. UK 05 A 3999 registered in the name of Bhagirath Rai was seized on dated 04.04.2012 by Senior Sub Inspector of police, Kotwali Champawat while both the accused persons namely Bhagirath Rai and Mahesh Rai were found carrying two hunted GHURADS (a wild animal) in the Forest Division of Champawat. A licensed gun and a big knife were also recovered from their possession and these GHURADS, mentioned in Schedule 3 of the Wild Life (Protection) Act, 1972 (for brevity hereinafter called as ‘Act’), were ostensibly hunted just a few minutes ago when the police apprehended them. Both Gurads had bullet injuries and blood was profusely oozing out from their body. Accused persons were taken to the court of Chief Judicial Magistrate from where they were released on bail and their Jeep was handed over by the police to Forest Department of Champawat on 17.04.2012, as is evident from both the impugned orders as well as from the orders of District Forest Officer dated 29.06.2012 and 11.07.2012 (Annexure Nos. 5 and 7 to the petition respectively). Both the accused persons moved an application on dated 19.05.2012, voluntarily confessing their guilt and on the basis of their confession, they prayed for composition of the offence, as envisaged under Section 54 of the Act. In this regard, the Forest Officer sought an opinion from District Government Counsel (Criminal), who advised that composition can be done on the basis of confession of guilt on dated 28.05.2012 and accordingly, the offence was compounded and a sum of Rs. 1,50,000/- was charged in lieu of composition of the offence by District Forest Officer. Soon after the composition, another application was moved by the applicant to release the aforementioned vehicle in his favour, as he was the registered owner of the same but the Forest Officer denied the same, on account of lack of jurisdiction and he was of the view that vehicle can be released only by a competent court, so he rejected said application. Thereafter, applicant moved an application in the court of Chief Judicial Magistrate relying upon various precedents of Hon’ble Apex Court including the latest one namely Principal Chief Conservator of Forest Vs. J.K. Johnson reported in AIR 2012 SC 61 but the learned Magistrate was of the view that since the offence has been confessed by both the accused persons, so in view of Section 39 (1) (d) of the Act, the property deemed to be of State Government. 3. Feeling disgruntled, a revision no. 9 of 2012 was filed by accused Bhagirath Rai and learned Sessions Judge was also in concurrence with the view expressed by learned Magistrate, so he also dismissed the revision, consequently, Bhagirath Rai, owner of the vehicle, has come up before this Court by way of filing this petition. 4. Learned counsel for the applicant has again relied upon the above noted precedent wherein interpretation of provisions of Sections 39 (1) (d), 50, 51, 54 of the Act has been done in the finest way. A careful reading of the finest construction, made by the Hon’ble Apex Court in the above precedent, is enough to divulge that there is clear-cut distinction between “suspecting the commission of crime” and “commission of crime”. The offence can be compounded under Section 54 of the Act when there is reasonable suspicion exists that a person has committed offence against this Act. It can be inferred well that the offence cannot be compounded, if there remains no suspicion regarding commission of offence and the same has been proved either by way of regular trial in the court of Magistrate or by way of confession made by the accused person(s) categorically. 5. When accused persons are themselves moving an application, confessing their guilt voluntarily, in so many words, then there is no suspicion remains regarding commission of offence, so this way the DGC (Criminal) was not correct in advising the Forest Officer, paving the way to compound the offence and charge a sum of money from offenders, much less taking of money as much as to the tune of Rs. 1,50,000/- because sub-section 4 of Section 54 of the Act envisages that sum of money accepted or agreed to be accepted as composition under sub-section (1) shall, in no case, exceed the sum of Rs. 1,50,000/- because sub-section 4 of Section 54 of the Act envisages that sum of money accepted or agreed to be accepted as composition under sub-section (1) shall, in no case, exceed the sum of Rs. 25,000/-, so even if the offence was of compoundable nature and the accused were only suspected for the same then the Forest Officer could have charged a sum maximum Rs. 25,000/- and not Rs. 1,50,000/-. If for a moment the argument is accepted that the offence has now been compounded and the accused are entitled to take back the seized articles, then it will be very easy for any violator of law to escape from punishment, as envisaged under the Act, even if commission of crime, which has been proved either by way of regular trial or on the basis of confession. It will be ridiculous to distinguish the commission of crime ‘having been proved’ as a result of conclusion of regular trial to that of on the basis of voluntary confession. The offence will be deemed to ‘have been proved’ on the basis of confession if the suspected person adheres to his stand even before the Magistrate, equally than what is arrived at by the court after full trial. Any otherwise interpretation will frustrate the object of entire penal sections of Section 51 as well as of Section 39 (1) (d) of the Act and the offender or any poacher, who hunts an animal either in sanctuary or in forest will go scot-free just by paying a sum of rupees maximum to the tune of Rs. 25000/- after hunting any wild animal, which is compoundable under the Act, even after confessing his guilt before Forest Officer with all wickedness. 6. The Hon’ble Apex Court has laid down that if the offence can be compounded under the Act then seized vehicle shall be released thereafter only in such cases when there is suspicion regarding commission of offence by the person from whose possession incriminating article(s) or the hunted wild animal is recovered and this has been ruled in a very right spirit because hunted animal or some incriminating articles may be recovered from a person in the Forest, who is yet innocent and there may be myriad reasons for that person to move an application for composition of the offence. Moving such an application and to compound the offence will save him from further prosecution in any court and as envisaged under sub-section 2 of Section 54 such person, if in custody, shall be discharged and no further proceedings in respect of that offence shall be taken against him. 7. Reading this provision certainly means that if the offence is compounded, then he shall be discharged and no further proceedings or prosecution can be furthered against such person. It implies that incriminating articles like Jeep, gun etc. shall be released in his favour but the situation is quite different, if a person confessed the guilt not only orally but also in writing by way of moving an application albeit before the Forest Officer then latter did have no authority to compound the same but his duty is to refer the matter to the Magistrate concerned for passing appropriate orders of conviction and sentence, as envisaged under Section 51 of the Act including forfeiture of the incriminating articles like gun and vehicle in favour of the State Government and also issue direction for cancellation of license or permit, in addition to other punishments that could be awarded for such offence. 8. The Hon’ble Apex Court in the above precedent has noticed that amendment in the Act came into existence w.e.f. 01.04.2003 and prior to this date, the Forest Officer had powers to release the property of the accused on payment of value thereof, as estimated by such officer but this provision now has been deleted by way of Amending Act No. 16 of 2003 w.e.f. 01.04.2003. Now, if a vehicle or gun has been seized, then the Forest Officer has no option except to refer the matter along with all seizure papers to the concerned Magistrate irrespective of the fact whether the offence has been compounded on the basis of suspicion or not? If accused persons do not take any initiative to compound the offence not on the basis of confession but on the basis of suspicion shown by Forest or Police Officer then they will be subjected to trial in the court of competent Magistrate and during the course of trial, if the Magistrate deems it fit then he can exercise his powers under Section 451 Cr.P.C. to release the incriminating articles in favour of the accused persons facing trial. If after trial the accused persons are found guilty then at the time of passing conviction and sentence against the accused persons, he can forfeit the said incriminating articles in favour of State Government or the Central Government, as the case may be. 9. In the instant case, there was neither any question nor any need for trial because the accused persons themselves had confessed their guilt in writing by way of moving an application, so there was no option for the Forest Officer except to refer the matter with all relevant papers to the Magistrate for passing appropriate orders of conviction and sentence and also for confiscation of the incriminating articles. He could not have passed any order of composition by way of accepting a sum from the accused persons confessing their guilt. 10. So in view of what has been stated above, this Court holds that the order of composition passed by the Forest Officer was quite without jurisdiction and money recovered in lieu of illegal composition is liable to be returned to the persons concerned on moving of an application to that effect. Proper course would have been to refer the matter with all relevant papers to the Magistrate having jurisdiction of the area for passing appropriate orders for conviction and sentence against the accused persons including forfeiture of the incriminating articles. The Chief Judicial Magistrate concerned will ensure the attendance of accused persons on the basis of personal bonds and sureties already furnished by them and will pass appropriate orders, as indicated above. 11. The writ petition is bereft of any merit and liable to be dismissed. Upholding the impugned concurrent judgments passed by the courts below, the writ petition is hereby dismissed at the threshold. 12. Copy of this judgment be sent to the Chief Judicial Magistrate, Champawat for compliance.