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2020 DIGILAW 270 (UTT)

Suraj Singh v. State Of Uttarakhand

2020-07-07

ALOK KUMAR VERMA

body2020
JUDGMENT Alok Kumar Verma, J. - This Criminal Misc. Application has been filed under Section 482 of the Code of Criminal Procedure,1973 (hereinafter referred to as 'the Code') for quashing the entire subsequent proceedings as well as the summoning order dated 08.07.2010, passed by the learned Judicial Magistrate, Roorkee, District Haridwar in Criminal Case No.4088 of 2013, State vs. Tilka and others. 2. Facts, to the limited extent necessary, are that an FIR was registered on 24.12.2009 against the present applicants and four other co-accused persons on the basis of a written report lodged by the respondent No.2, then Forest Ranger, Khanpur, Range-Roorkee, District Haridwar, alleging therein that on 23.12.2009, when the Officers and employees of the Forest Department were on routine patrolling, at about 9 p.m., they reached village Harjora and saw that in the house of Tilka, co-accused, meat of Wild Pig was being under the process of cooking and at that place present applicants along with Mal Chand, co-accused, were sitting there. The recovery memo was prepared. Other co-accused persons attacked the officers and employees of the Forest Department. The FIR was lodged under Sections 147, 148, 332, 342, 353 and 427 of the I.P.C. and Section 9/51 of the Wild Life (Protection) Act, 1972. After investigation, the charge sheet was submitted. The learned Magistrate took cognizance in the offences under Sections 147, 148, 332, 342, 353 and 427 of the I.P.C. and Section 9/51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Act, 1972') and issued summons to the applicants and co-accused persons. 3. Heard Mr. Parikshit Saini, the learned counsel for the applicants and Mr. S.S. Adhikari, the learned A.G.A. assisted by Mr. P.S. Uniyal, the learned Brief Holder for the State through video conferencing. 4. The learned counsel for the applicants submits that he will argue only on this legal ground that the FIR cannot be lodged in the light of Section 55 of the Act, 1972. 5. At this stage, it is necessary to notice the provision of Section 55 of the Act, 1972. The provision of Section 55 of the Act, 1972 is to the following effect : - "55. 5. At this stage, it is necessary to notice the provision of Section 55 of the Act, 1972. The provision of Section 55 of the Act, 1972 is to the following effect : - "55. Cognizance of offences.-No court shall take cognizance of any offence against this Act on the complaint of any person other than- (a) the Director of Wild Life Preservation or any other officer authorised 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 authorised 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 38J; 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 authorised as aforesaid. 6. The inherent powers under Section 482 of the Code include powers to quash F.I.R., investigation or any criminal proceedings pending before any court subordinate to it. Such power can be exercised to secure ends of Justice, to prevent abuse of process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. 7. The inherent powers of the Court can be invoked in three situations indicated in Section 482 of the Code : (i) in order to give effect to an order passed under the Code, or (ii) to prevent abuse of process of the Court, and (iii) to secure the ends of Justice. Such powers should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice. 8. Such powers should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice. 8. In State Of Karnataka vs L. Muniswamy & Ors, (1977) 2 SCC 699 , the Hon'ble Supreme Court observed that the wholesome power under Section 482 of the Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or ends of Justice require that the proceeding ought to be quashed. 9. In State of Haryana and others Vs. Bhajan Lal and others, (1992) Supp1 SCC 335 , the Hon'ble Apex Court examined the extraordinary power under Article 226 of the Constitution of India and also the inherent powers under Section 482 of the Code. Para 102 of the judgment of Hon'ble Apex Court reads as follows:- "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10. In Zandu Pharmaceutical Works Ltd. and others vs. Mohd. Sharaful Haque & another, (2005) 1 SCC 122 , the Hon'ble Supreme Court observed that it would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. 11. Section 55 of the Act, 1972 provides that no court shall take cognizance of any offence under the Act, 1972, except on the complaint of any person as mentioned therein. 11. Section 55 of the Act, 1972 provides that no court shall take cognizance of any offence under the Act, 1972, except on the complaint of any person as mentioned therein. Therefore, no FIR can be lodged in respect of the offence under the Act, 1972 and only a complaint would have been maintainable. A bare reading of the provision of Section 55 of the Act, 1972, it is abundantly clear that only the officers mentioned in the said Section, are authorized to file complaint and only upon filing such complaint by those authorized officers mentioned in Section 55, the Court can take cognizance on the complaint. 12. In State of Bihar vs. Murad Ali Khan, (1988) 4 SCC 655 , the Hon'ble Supreme court held that cognizance in any offence under the Act, 1972 can be taken by a Court only on the complaint of the officers mentioned in Section 55 of the Act, 1972. 13. During arguments, the learned A.G.A. appearing for the State, fairly concedes that only the officers mentioned in Section 55 are authorized to file a complaint and only upon filing such complaint by such officers, the Court can take cognizance. 14. Thus, in so far as the commission of the offence under Section 9/51 of the Act, 1972, is concerned, the present case falls under the 6th category set out in the para 102 of the judgment in the case of State of Haryana and others vs. Bhajan Lal (Supra). 15. Thus, in so far as the commission of the offence under Section 9/51 of the Act, 1972 is concerned, the summoning order dated 08.07.2010, passed by the learned Judicial Magistrate, Roorkee, District Haridwar in Criminal Case No.4088 of 2013, State vs. Tilka and others, is quashed. Remaining proceedings under Indian Penal Code will continue. However, it is clarified that this order would not come in the way of the authorities to initiate fresh proceedings, if the authorities so desire, in accordance with law. 16. The applicants if appear before the concerned court within a period of 15 days from today and move bail application, the concerned courts shall consider the bail application on the same day. The case is pending since a long time, therefore, the trial court will expedite the matter. 17. The Criminal Misc. Application, filed under Section 482 of the Code, is disposed of accordingly. No order as to costs.