1 apeal272.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 272 OF 2016
State of Maharashtra,
through Range Forest Officer,
Warora, District Chandrapur. .... APPELLANT
VERSUS
1) Mansingh Bicchu Banot,
Aged Major, Occ. - Private,
R/o Tanda, Tahsil - Bhadrawati,
District Chandrapur.
2) Tejrao Ramu Bhukya (Absent), - (Appeal abated as
Aged Major, Occ. - Private, per order dt. 29-3-17)
R/o Tanda, Tahsil - Bhadrawati,
District Chandrapur.
3) Chiman Chandu Jadhav (absent),
Aged Major, Occ. - Private,
R/o Tanda, Tahsil - Bhadrawati,
District Chandrapur. .... RESPONDENTS
______________________________________________________________
Shri A.S. Palshikar, Addl.P.P. for the appellant,
None for the respondents.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 15 NOVEMBER, 2017.
th ORAL JUDGMENT :
Challenge is to the judgment and order dated 02-1-2016 in ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:05 ::: 2 apeal272.16 Regular Criminal Case 49/2002 delivered by the learned Judicial Magistrate First Class, Bhadrawati, by and under which respondent 1 Mansingh Banot is acquitted of offence punishable under Section 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as the "Act") and accused Tejrao Bhukya and accused Chiman Jadhav are discharged.
2. Heard Shri A.S. Palshikar, learned Additional Public Prosecutor for the appellant.
3. The learned Additional Public Prosecutor Shri A.S. Palshikar states that accused Tejrao Bhukya is dead. The appeal stands abated against accused Tejrao Bhukya.
4. The genesis of the prosecution lies in a complaint instituted by Range Forest Officer, Warora, the gist of which was that the accused killed one blue bull (fuyxk;) with the help of electric current. Electric wire was planted at various spots is the assertion in the complaint.
5. Accused 2 and 3 remained absent/could not be traced and ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:05 ::: 3 apeal272.16 vide order below Exhibit 33 the learned Magistrate separated the trial of accused 1 from accused 2 and 3.
6. The learned Magistrate framed charge vide Exhibit 46. The sole accused abjured guilt and claimed to be tried. The defence of the accused, as is discernible from the statement recorded under Section 313 of the Criminal Procedure Code is of false implication.
7. The learned Magistrate has recorded a finding that the complaint is not competently filed. Section 55 of the Act, to which the learned Magistrate has made a reference, reads thus :
"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 IVA; 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; 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 ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:05 ::: 4 apeal272.16 or the State Government or the officer authorised as aforesaid."
8. The learned Magistrate has recorded a finding that there is no compliance with Section 55(c) and axiomatically the complaint instituted by the Range Forest Officer is incompetent in law.
9. The learned Magistrate has further noted that even otherwise the complainant did not step into the witness box, P.W.3 Haribhau refused/failed to identify the accused and rather stated that he was not aware of any incident as is asserted in the complaint.
10. The panch witnesses have not taken the case of the prosecution any further. Illustratively, Sumitra (P.W.5) admits that she has signed on the panchanama at the instance of forester Upase.
11. The learned Magistrate has also noted non-compliance with Section 50(8) of the Act and the relevant discussion is found in paragraphs 14 and 15 of the judgment impugned.
12. On a holistic appreciation of the material on record and ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:05 ::: 5 apeal272.16 the statutory provisions, the learned Magistrate has recorded that no offence is made out against the accused Mansingh Banot. I do not see any perversity in the judgment of acquittal.
13. The appeal is sans merit as regard the acquittal of accused 1 Mansingh Banot is concerned and is dismissed.
14. In so far as accused 2 Tejrao Bhukya and accused 3 Chiman Jadhav whose trial came to be separated, the learned Magistrate has recorded that they are discharged. It is doubtful whether accused 2 and accused 3 could have been discharged. Be that as it may, the complainant is at liberty to take recourse to said remedy as is available, if the complainant so deems fit, to prosecute accused 3 as and when he is apprehended.
The appeal is disposed in the above terms.
JUDGE adgokar ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:05 :::