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2020 DIGILAW 876 (MP)

Mashkoor Ullah v. State Of Madhya Pradesh

2020-09-08

RAJENDRA KUMAR SRIVASTAVA

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JUDGMENT Rajendra Kumar Srivastava, J. - This is first bail application under section 438 of Cr.P.C. filed by the applicant apprehending his arrest in connection with Crime No./POR No. 28088/2006, registered at Office of Forest Range Officer, Forest Circle Berasiya, District-Bhopal (M.P.), for the offence punishable under Sections 9, 39, 48(A), 50 & 51 of Wild Life Protection Act, 1972 (hereinafter referred as 'Act 1972') and Section 41 of Indian Forest Act, 1927 (hereinafter referred as 'Act 1927'). 2. According to prosecution case, on 16.04.2020, in the night at about 12:30 o'clock, Forest Official (Van Chowkidar) informed the Forest Guard through mobile phone that he heard fire shot's noise in room No. R.F.111. Thereafter within an hour, the Forest team reached the spot and saw two persons standing near Scorpio car (MH-04-DR-5828) and Bolero car (MP-04-CA-4922). Range Officer identified them as Soyeb Qureshi and Haseen Khan. While searching the car, the officials found the body parts of Nilgai as well as one rifle. On asking, the accused persons stated that they hunted Nilgai with said rifle. On investigation, Forest Official found that the Bolero jeep is registered in the name of present applicant and he fled away from the spot. The applicant was the license holder of rifle which was alleged to have been used in crime. 3. Learned counsel for the applicant submits that the applicant is innocent person has falsely been implicated in the case. He further submits that applicant was not spotted on incident place. The police involved the present applicant in crime being owner of Bolero jeep and having license of allegedly used weapon but said jeep was sent by brother of applicant for pulling Scorpio car and weapon was recovered from other co-accused. He further submits that the offences levelled against the applicant are bailable in nature as same are not having punishment of more than three years. He also produced the copy of order passed by co-ordinate Bench of this Court in M.Cr.C No. 20732/2020 (Panjosh Pardhi Vs The State of Madhya Pradesh) wherein the Court relying upon the order passed by High Court of Chhatishgarh, in the case of Arjun Singh Vs. State of Chhatishgarh in M.Cr.C. No. 774/2012 dated 20.02.2015 observed that under the Act 1972, if the offences levelled are not having punishment of more than three years, same are considered to be bailable. State of Chhatishgarh in M.Cr.C. No. 774/2012 dated 20.02.2015 observed that under the Act 1972, if the offences levelled are not having punishment of more than three years, same are considered to be bailable. In the present case, all the offences do not have punishment of more than three years and thus same are bailable. He further submits that co-accused of case have already been enlarged on bail by this High Court as well as trial Court. He also submits that the applicant is under medical treatment and at present due to spread of 'Covid 19' pandemic, he is worried for his arrest on health issues too. Withe the aforesaid, he prays for allowing this bail application. 4. On the other hand learned counsel for the respondent/State opposes the bail application. 5. Heard the submissions of both the parties and perused the case diary. 6. On perusal of case diary as well as other material thereof, the allegations against the present applicant is that he hunted wild animal Nilgai in Reserved Forest Area. The Nilgai comes under schedule-III of Act 1972 and thus it is alleged that the applicant violated the provision of Act 1972. The offence of Section 41 of Act 1927 has also been levelled against the applicant for which maximum punishment of six months is prescribed. According to applicant, the offences of Act 1972 levelled against the applicant are triable by Magistrate and having maximum punishment of three years only. He submits that by virtue of Part-II, contained in Schedule I to the Code of Criminal Procedure, an offence under the other special law, punishable with imprisonment for less than three years or with fine only, is non-cognizable but bailable. The counsel relied on the order passed by Co-ordinate Bench of this Court in Panjosh Pardhi (supra) wherein the Court observed as under:- "Having considered the rival submissions and on perusal of the case diary, this Court is of the opinion that since it is not in dispute that the animal in question is a Chital which is covered under Entry No.5 of Schedule III of the Wild Life Protection Act, 1972 and when the said offence under Section 51 of the said act is read alongwith II - Classification of Schedule 1st, it becomes a bailable offence as the maximum sentence provided is 3 years. In view of the same, since the offence is bailable, without reflecting anything on the merits of the case, the application stands allowed." 7. While making the aforesaid observation, the Court relied on the order passed by High Court of Chhatisgarh in Arjun Singh's case wherein the Court considered the offence under Section 51 of Act 1972 as bailable in nature in respect of killing of animal of scheduled III by virtue of Part-II of Scheduled I of Cr.P.C. and considering that the prescribed punishment is not more than 3 years. The said Schedule prescribes the classification of offence in respect of other special law. 8. For better elaboration, it would be appropriate to reproduce relevant provision contained in Act 1972 and Cr.P.C. 1973. Section 51 of Act 1972 is reproduced as under :- 51. Penalties. (1) Any person who contravenes any provision of this Act (except Chapter VA and section 38J)] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to [three years] or with fine which may extend to [twenty-five thousand rupees] or with both: Provided that where the offence committed is in relation to any animal specified in Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be less than ten thousand rupees 9. Further, Part-II of Scheduled-I under Cr.P.C. 1973 is also reproduced hereinunder - Description of Offence Cognizable Bailable Triable By If punishable with death, imprisonment for life, or imprisonment for more than 7 years YES NO Session If punishable with imprisonment for 3 Years, and upwards but not more than 7 Years YES NO JMFC If punishable with imprisonment for less than 3 Years or with Fine only NO YES Magistrate 10. On bare perusal of aforesaid provisions and Schedule, it is found that Section 51 of Act 1972 is divided in three parts. The first part provides the punishment for contravention of any provision of the Act or any rule or order made thereunder or who commits breach of condition. For the aforesaid, punishment is of imprisonment which may extend upto three years is prescribed. The second part is proviso wherein it is prescribed that if the offence committed in relation to animal prescribed in Schedule I or part II of Schedule II or meat of any animal or animal article or trophy derived from such animal shown in the Schedule-I or Part-II of Schedule-II shall be punishable with imprisonment for a term which shall be not less then three years, but may extend to seven years. Now the third part which is relevant to this case is also contained in proviso and comes into picture when offence relates to "hunting" in a Sanctuary or a National Park then in all such case offences shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years. The definition of 'hunting' is provided under section 2 (16) which reads as under : "2. Definitions - ** ** ** 16. "hunting", with its grammatical variations and cognate expressions, includes, 13[(a) killing or poisoning of any wild animal or captive animal and every attempt to do so; (b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so;] (c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles;" 11. Further, Section 9 of Act, 1972 prohibits hunting of any wild animal specified in Schedules I to IV but same is subject to section 11 and 12 of Act 1972, which prescribes the provision for grant of permission of hunting in certain cases and for special purposes. 12. Further, Section 9 of Act, 1972 prohibits hunting of any wild animal specified in Schedules I to IV but same is subject to section 11 and 12 of Act 1972, which prescribes the provision for grant of permission of hunting in certain cases and for special purposes. 12. Therefore, it is found crystal clear that in such cases when the hunting of any wild life is caused in Sanctuary or a National Park then even though same specified in Schedule III of Act 1972, the offence would fall in the category of non-bailable offence as it is classified in part II of Schedule I of Cr.P.C. that offence having punishment of imprisonment for a term which shall not be less than three years but may extend to seven years would be non-bailable. 13. The learned counsel for applicant emphasized on the order passed by Chhatisgarh High Court in Arjun Sing's case but in the case of Lakhan & anr. Vs. State of Chhattisgarh, passed in M.Cr.C No. 2800/2016, dated 29.07.2016, another bench of said High Court distinguished the verdict of Arjun Singh's case and observed as under : 8. Reading of Section 51 wherein Penalties are prescribed, the Section (1) can be sub-divided in different parts. The first part purports that any person who contravenes any provision of this Act or any rule or order made thereunder or who commits breach of condition shall be guilty of offence and the punishment prescribed is imprisonment which may extend to three years or fine which may extend to twenty-five thousand rupees. The second part of proviso prescribes that if the animal specified in Schedule-I or Part-II of Schedule-II or meat of any animal or animal article or trophy derived from such animal necessarily takes within it's fold of the animal shown in the Schedule-I or Part-II of Schedule-II. The Section further reads where the offence relates to "hunting" in a Sanctuary or a National Park then in all such case offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years. The Section further reads where the offence relates to "hunting" in a Sanctuary or a National Park then in all such case offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years. Therefore, by reading of this Section, it would indicate that even in a case if the Schedule-III animal are hunted within the boundaries of a Sanctuary or a National Park then in such case the offence shall be punishable with not less than three years and may extend to 7 years and also with fine not less than Rs.10,000/-. Therefore, necessarily where the offence is covered in second part and the punishment prescribed is not less than 3 years. In such case, the offence would fall in the category of non-bailable offence as has been classified in Cr.P.C. which reads as under : *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** 9. In the light of discussion as above, the principles laid down in case of Arjun Singh & Others v. State of C.G.1 can not be universally applied in a case when the hunting is made within a Sanctuary or a National Park. In the instant case, the case diary would show that the place where the hunting has taken place is a Reserved Forest, therefore, the submission made by the applicant that the offence would be bailable is misconceived. The case cited by the applicant would not be of any help to the applicant. 10. Accordingly, in the facts of this case, the case of Arjun Singh & others v. State of C.G. will not be applicable in this case. Furthermore, taking into the facts, no change of circumstances has taken place after rejection of earlier bail petition, I am not inclined to entertain this bail application again. 14. Further, on perusal of another order, passed by coordinate bench of this High Court in Panjosh Pardhi (supra), it is found that the allegation against the accused is that he was in possession of meat of Chital. The Court considered the act of accused to fall within the purview of bailable offences and granted bail. The facts of this case are different than that of Panjosh Pardhi (supra) as it involves hunting of wild life at Reserved Forest Area. The Court considered the act of accused to fall within the purview of bailable offences and granted bail. The facts of this case are different than that of Panjosh Pardhi (supra) as it involves hunting of wild life at Reserved Forest Area. However, it is also made clear that this Court is not giving any expression regarding finding of co-ordinate bench considering the act of that accused as bailable offence, as same is not relevant to this case. 15. Therfore, prima facie, it is found that the applicant was involved in hunting of Nilgai in Reserved Forest Area. The Bolero Jeep and weapon which are alleged to have been used in crime belong to applicant/accused. However, the applicant was not spotted in the incident place but same is not sufficient to consider him as innocent. 16. Consequently, I am not inclined to grant anticipatory bail to the applicant. However, looking to the fact that the offences involved in the case are not having punishment of more than seven years and thus in view of the mandate of Hon'ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 , this Court is inclined to direct thus:- (i) That, the police or forest official may resort to the extreme step of arrest only when the same is necessary and the applicant fails to cooperate in the investigation. (ii) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperates in the investigation then the occasion of his arrest should not arise. 17. Accordingly, this petition is disposed off.