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2014 DIGILAW 971 (KAR)

THIMME GOWDA v. STATE OF KARNATAKA

2014-11-07

K.N.PHANEENDRA

body2014
ORDER K.N. Phaneendra, J. Petitioners who are arrayed as accused Nos. 1 & 2 in C.C. No. 773/2012 on the file of the Principal Civil Judge and JMFC, Kadur have sought for quashing of the said proceedings instituted against them for the offences punishable under Sections 2(2), 2(16), 2(31)(a)(b), 2(36), 9(1) r/w 51 of Wild Life (Protection) Act, 1972 r/w section 30 of Arms Act, 1959 r/w section 34 of I.P.C. 2. The Police Sub-Inspector of Kadur Police has registered a case in FIR Crime No. 297/2010 for the offences punishable under Sections 2(2)(31)(a), 9, 39, 44, 51 of Wild Life (Protection) Act, 1972. The charge sheet papers reveal that on 24.09.2010 the Police Sub-Inspector, Crime Branch, Kadur received credible information that some persons are carrying some Wild animal's skin in a gunny bag for the purpose of selling and they were coming from the direction of Sakharayapatna. Immediately the PSI along with his staff went to that particular place i.e. Kanaka Circle in U.B. Road, Kadur. They observed two persons coming towards the direction of the Bus Stand holding a gunny bag. On seeing the Police, they tried to escape from the clutches of the Police. However, the Police were successful in catching them. On opening the gunny bag which was in the hands of one of the accused by name Thimme Gowda, the Police found that there was skin of a cheetah a wild animal (wild cat). The petitioners did not give any proper explanation for possessing the said skin of the wild animal. Therefore, the Police have registered a case and proceeded with the investigation. Ultimately, after due investigation a charge sheet came to be filed for the above said offences along with the offence under the provision of Arms Act. In the charge sheet, it is stated that the accused persons have killed a wild cat by firing it and therefore, they invoked Section 30 of the Arms Act. 3. Learned Counsel for the petitioners attacked the above said proceedings on the ground that Section 55 of the Wild Life (Protection) Act is bar to take cognizance without there being a private complaint filed by the competent authority as contemplated under the said provision. 3. Learned Counsel for the petitioners attacked the above said proceedings on the ground that Section 55 of the Wild Life (Protection) Act is bar to take cognizance without there being a private complaint filed by the competent authority as contemplated under the said provision. Further, he contended that Section 30 of the Arms Act is also non-cognizable offence without there being a permission from the Magistrate under Section 155(2) of Cr.P.C, the Investigating Officer has no jurisdiction to investigate and file any charge sheet. 4. As could be seen from the records, the first information report shows that the provision invoked are all under the Wild Life (Protection) Act. Subsequently, at the time of filing charge sheet, the provision under Section 30 of the Arms Act was also invoked by the Investigating Officer. Whether the Police Officer can file a complaint before the Magistrate under Section 55 of the Act has to be looked into. Section 55 of the Wild Life (Protection) Act, 1972 reads as follows : "55. Cognizance of offence.-No court shall take cognizance of any offence against this Act except on the complaint of any person other than- (a) the Director of Wild Life Preservation or any other officer authorized in this behalf by the Central Government; or (aa) The Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IV A; or (ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger reserve; or (b) the Chief Wild Life Warden, or any other Officer authorized in this behalf by the State Government subject to such conditions as may be specified by that Government; or (bb) the officer-in-charge of the zoo in respect of violation of provisions of section 38; or (c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the Officer authorized as aforesaid". 5. The above said provision is a mandatory provision which debars the Court from taking cognizance of any offence under the Wild Life (Protection) Act except on the complaint by a person authorized under the said provision. The said provision is meticulously read, it does not include the Police Officers to file any charge sheet or a private complaint. 5. The above said provision is a mandatory provision which debars the Court from taking cognizance of any offence under the Wild Life (Protection) Act except on the complaint by a person authorized under the said provision. The said provision is meticulously read, it does not include the Police Officers to file any charge sheet or a private complaint. Moreover, Section 55 of the Act contemplates that a complaint has to be filed with reference to any of the provisions under the Wild Life (Protection) Act. Therefore, it goes without saying that the Court has to fall back upon Section 2(d) of Cr.P.C. to ascertain what exactly meant by a complaint. Section 2(d) of Cr.P.C. reads as follows : "2(a)....... 2(b)....... 2(c)....... 2(d) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a Police report. Explanation.-A report made by a Police Officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complainant". (Emphasis supplied) 6. On plain reading of this provision, which clearly discloses that the complaint shall be oral or in writing directly to a Magistrate and it is specifically excludes the Police to report under Section 173 of Cr.P.C. 7. The explanation appended to this provision under Section 2(d) which also empowers the Police Officer during the course of investigation, if it discloses any non-cognizable offence he can file a report to the Court. Therefore, at the initial stages the Police Officer has registered the offences under the Wild Life (Protection) Act. But subsequently, the Arms Act has also been invoked under Section 30 of the Arms Act. As could be seen the punishment prescribed for the said provision is six months imprisonment or with fine, which may extend to Rs.2,000/- or with both. 8. In view of the absence of any special provision under the Arms Act declaring that the said provision is cognizable one, it should be treated as a non-cognizable offence as per Part 2 of Schedule I of Criminal Procedure Code. 8. In view of the absence of any special provision under the Arms Act declaring that the said provision is cognizable one, it should be treated as a non-cognizable offence as per Part 2 of Schedule I of Criminal Procedure Code. It says that if any offence under any other law for the time being in force, is punishable with less than three years or with fine only, it should be treated as non-cognizable and bailable offence triable by any Magistrate. 9. Looking to the above said provision, there is a specific bar under Section 155(2) of Cr.P.C. that the Police cannot investigate the offences which fall under the category of non-cognizable offences and they cannot file a charge sheet without the permission of the Court. Looking to the above said provision under Section 55 of the Wild Life (Protection) Act and also under Section 155(2) of Cr.P.C. so far as this case is concerned, the Police Sub-Inspector who lodged the charge sheet is not empowered to file the charge sheet before the Court and the cognizance could not have been taken by the learned Magistrate. 10. In this regard, the learned Counsel cited a Ruling of the Gujarat High Court in Criminal Misc. Application No. 9130/2009 dated 09.05.2012. The Gujarat High Court after relying on the Ruling of the Hon'ble Supreme Court reported in State of Bihar Vs. Murad Ali Khan and Others, held that Section 55 of the Wild Life (Protection) Act is a bar for taking cognizance and it specifies who is the authorized person to file a complaint in respect of the offence under the said Act. It is categorically held that, any Police report submitted by the Police is not maintainable. The Apex Court ruling quoted in the said Ruling, it is also discussed about Section 51(1) of Wile Life (Protection) Act, wherein at paragraph 13 of Judgment it is said that: "What emerges from a perusal of these provisions is that cognizance of an offence under the 'Act' can be taken by a Court only on the complaint of the Officer mentioned in Section 55. The person who lodged complaint dated 23.6.1986 claimed to be such an officer. The person who lodged complaint dated 23.6.1986 claimed to be such an officer. In these circumstances even if the jurisdictional Police purported to register a case for an alleged offence against the Act, Section 210(1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence instituted otherwise than on a Police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and, accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is unsupportable". 11. What emerges from the above said Ruling is that, even the Police have investigated the matter and complaint is already pending before the Court and cognizance already taken, such matter also cannot be clubbed along with the complaint under Section 210 of Cr.P.C. The Hon'ble Supreme Court also clearly affirmed that the Magistrate can only take the cognizance of the offence only if the complaint is strictly in compliance with Section 55 of the Wild Life (Protection) Act. 12. Therefore, in this particular case, the P.S.I. who is not authorized under Section 55 of the Wile Life (Protection) Act is neither entitled to file any report before the Court nor he can seek the permission of Magistrate to convert the said charge sheet into a complaint under Section 2(d) explanation is concerned. Therefore, I have absolutely no hesitation to quash the proceedings as sought for. 13. Before parting with this Judgment, I feel it just and necessary to mention here that the Police Officer who investigated the case, cannot invoke the provisions under the Wild Life (Protection) Act, knowing that, the said statutory bar is there, has filed final report before the Court. 13. Before parting with this Judgment, I feel it just and necessary to mention here that the Police Officer who investigated the case, cannot invoke the provisions under the Wild Life (Protection) Act, knowing that, the said statutory bar is there, has filed final report before the Court. This shows the callous attitude on the part of the Investigating Officer, it virtually amounts to allowing the accused to go successfully by virtue of statutory bar under Section 55. 14. In such circumstances, in my opinion, the State has to take serious view in the matters and take appropriate action in accordance with law against the persons who actually violate the statutory provisions of law and make the accused persons scuttle in this regard. 15. Therefore, I direct the Government to look into the matter seriously in this matter not only taking action against such Officers but also impress and train the entire Police Department as to how the Police can investigate the matter and how the complaint can be filed by the Wild Life Protection Officer as contemplated under Section 55 of the said Wild Life (Protection) Act. 16. With all the above observations, I am quashing this proceedings because the environmental protection and protection of the Wild animals is in the hands of the State Government, they have to take appropriate measures in order to protect the wild animals by means of properly training the Officers and also by means of taking appropriate action against the perpetuators who act contrary to the provisions of law. 17. With these observations, I direct the Registry to send a copy of this Order to the Chief Conservatory of Forest and Director General and Inspector General of Police for appropriate action in this regard. 18. With these observations, the following order is passed: "The petition is allowed. Consequently, the entire proceedings in C.C. No. 773/2012 arising out of Crime No. 297/2010 pending on the file of Principal Civil Judge and JMFC, Kadur for the offences punishable under Sections 2(2), 2(16), 2(31)(a)(b), 2(36), 9(1) r/w 51 of Wild Life (Protection) Act, 1972 r/w section 30 of Arms Act, 1959 r/w section 34 of I.P.C. is hereby stands quashed." Liberty is also given to the Forest Department if they can still take action against the accused in accordance with law, they can take such action.