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Amruthlal Shah & Another v/s State of Karnataka, Represented by its State Public Prosecutor, Bengaluru & Another

    Criminal Petition No. 3400 of 2017

    Decided On, 18 January 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE K. SOMASHEKAR

    For the Petitioners: Madhav Kashyap, P. Prasanna Kumar, Advocates. For the Respondents: Rashmi Jadhav, HCGP.



Judgment Text

(Prayer: This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the order dated 18.07.2012 in Cr.No.39/2012 passed by the CMM Court, Bengaluru in C.C.No.16522/2012 now pending before IX ACMM, Bengaluru thereby taking cognizance against the petitioners for the offence under Sections 39, 44, 48A, 49A, B and C, 50 and 51 of Wild Life (Protection) Act, 1972 and Section 420 read with section 34 of IPC and consequently quash the entire proceedings pending thereof insofar as the same relates to the petitioners/accused Nos.1 and 2 and etc.)

1. Heard Sri. Madhav Kashyap for Sri. Prasanna Kumar P. learned counsel for the petitioners and Smt. Rashmi Jadhav, learned HCGP for the State who are present before the Court physically.

2. Though this matter is listed for orders to do the needful in respect of furnishing of P.F. and correct address for issuance of notice to the 2nd respondent but the same is taken up for final disposal with the consent of both the parties and the role of the 2nd respondent/complainant is only limited extent but only to assist learned HGCP for State as per Section 301 of Cr.P.C. The 2nd respondent shall not have any domain independently to proceed with the case to address their arguments.

3. The petitioner who are arraigned as accused Nos.1 an 2 in C.C.No.16522/2012 arose in Cr.No.39/2012 registered by the 1st respondent-Chickpet police for the offences punishable under sections 39, 44, 48A, 49-A, B and C, 50 and 51 of Wild Life (Protection) Act, 1972 and Section 420 read with section 34 of IPC have filed this petition seeking for quashment of the criminal proceedings initiated against them in the aforesaid C.C.No.16522/2012.

4. Learned counsel for the petitioners has taken me through the report issued by the Government of India, Ministry of Environment Forests, addressing the letter to the Inspector General of Police, CID Forest Cell wherein it is stated that “the eight pieces of seized articles have been identified as polished pieces of red coral (Corallium sp).” In addition to the report, the learned counsel has referred the terms of the circular issued by the Government of India, Ministry of Environment Forests dated 24.01.2012, wherein it is stated that “Gems and Jewellery Export Promotion Council (GJEPC), India sponsored by Ministry of Commence and Industries, Government of India has requested Ministry of Environment and Forests for clarification on the trade of Red Coral (Corallium rebrum) in the Indian market to avoid misinterpretation of the provision of laws related to the wildlife. In this connection, it is to clarify that the species Corallium reburm is neither listed in the Schedules of Wild Life (Protection) Act, 1972 nor in the Appendices of CITES. Further, the species Corallium rubrum is not found in Bay of Bengal, Indian Ocean or Arabian Seas and is endemic to Mediterranean Sea especially in the coastal waters of countries like Sardinia and Sicily, Eastern Atlantic, Portugal, Morocco, Canary and Cape Verde Island.”

5. The learned counsel for the petitioners has relied upon those two material documents secured by the Investigating agency during the course of investigation. It is clarified that when report of the Zoological Survey of India which is also a part of the charge sheet indicates that Shah Diamonds were only dealing with Red Corals (Corallium sp) and the said shop had licensed to deal with Red Corals (Corallium sp). But the 1st respondent police without appreciating the materials and without noticing the provisions of the Act, proceeded for investigation and laid the charge sheet against the petitioners before the Judicial Magistrate to deal with the matter. Even Section 55 of the Wild Life (Protection) Act, 1972 indicates that Courts are barred from taking cognizance in respect of any of the offence under the Act except upon a complaint in writing of the Authorized Officer. The same necessarily means that the Authorized Officer shall file a complaint before the jurisdictional magistrate within the meaning of section 2(d) of Cr.P.C. But in the instant case, though the prosecution alleges that there is contravention of Wile Life (Protection) Act by the accused persons, the complaint as prescribed under Section 2(d) of Cr.P.C. has not been filed by the officer authorized. Therefore, in this matter, intervention as contemplated under Section 482 of Cr.P.C. is very much required for quashment of the entire criminal proceedings initiated against the petitioners in C.C.No.16522/2012 arose in Cr.No.39/2012 registered by the 1st respondent-Chickpet police for the offences punishable under sections 39, 44, 48A, 49-A, B and C, 50 and 51 of Wild Life (Protection) Act, 1972 and Section 420 read with section 34 of IPC. If not exercise the power, certainly accused being grave man of that charges would be the sufferer. On all these grounds, learned counsel for the petitioners has sought for allowing the petition and quashment of the criminal proceeding of C.C.No.16522/2012.

6. Per contra, learned HCGP for the State has taken me through the substances of the charge sheet laid by the I.O. against the petitioners. In the charge sheet, one Rajesh K who is the Police Inspector of CID Forest Cell in Bengaluru has been cited as C.W.1 and four more witnesses have been cited as C.Ws.2 to 5. On the basis of credible information received by the C.W.1/first informant on 22.03.2012 from his higher officials, C.W.1 along with police inspector and his staffs visited to the shop of the petitioners and found Seafan (Gorgonian) Coral. When C.W.1 asked them to submit the bills and other documents issued by the Forest Department, the petitioners have failed to produce the same and thereby, they have contravened the provisions of the Wild Life (Protection) Act, 1972. Hence, C.W.1 seized 2739 number of corals from the shop and registered the case against the petitioners and took up investigation for the offences punishable under sections 39, 44 48A, 49-A, B and C, 50 and 51 of Wild Life (Protection) Act, 1972 and Section 420 read with section 34 of IPC. On all these premise, the learned HCGP has sought for dismissal of the petition.

7. Having gone through the materials and points for arguments addressed by the learned counsel for the petitioners as well as the counter made by the learned HCGP and so also the materials on record, it is relevant to refer section 2(d) of Cr.P.C. that when once the complaint has been filed by the complainant, it is domain vested with the jurisdictional police to register the crime as contemplated in Chapter-12 of the Cr.P.C., as in Section 154 of Cr.P.C. which reads as under:

“154, information in cognizable cases. Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

8. When once the credible information said to have been received by the investigating agency in whatever the rank and there is cognizable nature, the power or domain vested with the investigating agency under Section 154 of Cr.P.C. to register the crime by recording the FIR and proceeded with the case for investigation.

9. FIR prima facie discloses commission of alleged offences against the accused persons and even the FIR has recorded by the police having jurisdiction to proceed in further that the investigating agency shall proceed to record the statement as contemplated under Section 161 of Cr.P.C. and so also follow the procedure as contemplated under Section 173(2) of Cr.P.C.

10. As per section 161 of Cr.P.C., any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

11. However, Section 170 of Cr.P.C., reads as under:

“cases to be sent to Magistrate when evidence is sufficient. If upon an investigation under this Chapter, it appears to the office in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

12. But in the instant case, based upon the complaint filed by the C.W.1, the case in Cr.No.39/2012 came to be registered by the 1st respondent police against the petitioners for the offences punishable under sections 39, 44, 48A, 49-A, B and C, 50 and 51 of Wile Life (Protection) Act, 1972 and Section 420 read with section 34 of IPC. However, the accused ought to have approached the trial Court by filing an application under Section 239 of Cr.P.C. at the first instance for seeking their discharge, even referring the report issued by the Government of India, Ministry of Environment and Forests dated 30.12.2011 and even it is termed as a letter/circular issued by the Government of India, Ministry of Environment and Forests dated 24.01.2012. But it is an offence under Section 420 of IPC that the offence which is lugged against the accused. Even under wild life protection Act, if the accused seeks for discharge, he has to file an application under Section 239 of Cr.P.C. instead of Section 482 of Cr.P.C. by referring the aforesaid documents and so also the substances of the charge sheet laid by the investigating officer. Instead of recourse of section 239 of Cr.P.C., the accused filed this petition under Section 482 of Cr.P.C., for quashment of charge-sheet. However, the Court must proceed with the presumption that the materials brought on record by the prosecution is true and on such materials find out whether they disclose the commission of offence. It is the duty cast upon the concerned Judicial Magistrate to look into the charge sheet laid against the accused for the aforesaid offences. Therefore in this petition, it is stated that there is no substance to exercise the power under section 482 of Cr.P.C. But under this proviso of Section 482 of Cr.P.C., the power has to be exercised judicially, judiciously, cautiously and sparingly.

13. But in the instance case, the petitioners/accused alleged to have been involved in the aforesaid offences which are lugged against them in the charge sheet for having possession of red coral (Corallium sp). Therefore, the same were seized and sent to the Zoological Survey of India, Marine Biology Regional Centre, Chennai for identification. After identifying the same, the Ministry of Environment and Forests has issued its report dated 24.01.2012 stating that the eight pieces of seized articles have been identified as polished pieces of red coral (Corallium sp). Hence the accused persons have to be recourse by fling an application under Section 239 of Cr.P.C., before the court as where the case in C.C.No.16522/2012 is pending. But he should not s

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eek for absolving from the offences which leveled against them in the charge sheet by filing the petition under Section 482 of Cr.P.C. 14. On all these grounds the petition by the petitioners seeking for quashing the criminal proceedings initiated against them in C.C.No.16522/2012 arose in Cr.No.39/2012 registered by the 1st respondent-Chickpet police for the offences punishable under sections 39, 44, 48A, 49-A, B and C, 50 and 51 of Wild Life (Protection) Act, 1972 and Section 420 read with section 34 of IPC is dismissed but reserving liberty to the petitioners to file an application under section 239 of Cr.P.C. seeking for their discharge before the concerned trial Court. If such application is filed, the Asst. Public Prosecutor or Public Prosecutor is at liberty to file objection to the same and trial court is directed to dispose of the said application on merits in accordance with law. 15. It is made clear that whatever the observations made in the order; the same shall not influence the mind of Court below for disposal of the application to be filed under section 239 of Cr.P.C. by the accused persons but it shall be disposed of on merits. Ordered accordingly. All contentions shall be kept open for the prosecution and the defence counsel.
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