Bhola @ Bola Mondal @ Bholanath ... vs The State Of West Bengal
2023 Latest Caselaw 1442 Cal

 D/L 6                             C.R.A.(SB)152 of 2022
27.02.2023

Bpg.

Bhola @ Bola Mondal @ Bholanath Mondal @ Bhola Mondal Versus The State of West Bengal

Mr. Arnab Chatterjee ...for the appellant.

Mr. Subrata Roy, Ms. Sonail Das.

...for the State.

The subject matter of the present appeal relates to the

judgment and order of conviction and sentence passed by the

learned Additional Sessions Judge, 2nd Court, Bongaon, North 24

Parganas in Sessions Case No.308 of 2019 wherein the appellant

was convicted under Sections 379/411 of the Indian Penal Code

and sentenced to suffer rigorous imprisonment for three years and

to pay fine of Rs.5,000/- in default to suffer rigorous imprisonment

for another three months under Section 379 of the Indian Penal

Code and also to undergo rigorous imprisonment for three years

and to pay fine of Rs.5,000/- in default to suffer rigorous

imprisonment another three months under Section 411 of the

Indian Penal Code.

The genesis of the case was on the basis of a complaint

lodged by Inspector Arun Kumar Mondal of BSF. The substance in

the allegations were to the effect that on 28th June, 2014 on

information received an Indian National namely, Bhola Mondal was

apprehended and eight numbers of wild parrots near B.P. No.17/7s

were recovered from him. His movement was found to be

suspicious and was trying to cross from Bangladesh to India. The

charge in this case was framed under the provisions of Sections

413/414 of the Indian Penal Code and Section 11 of the Prevention

of Cruelty to Animal Act.

Having considered the nature of the offence complained

of, which is reflected in schedule IV serial no.50 refers in respect of

the birds which have been seized. The charge-sheet was submitted

under Sections 413/414 of the Indian Penal Code, Section 51 of the

Wild Life Protection Act and Section 11 of the Prevention of Cruelty

to Animal Act, 1960.

Section 51 (1--A) of the Wild Life Protection Act provides

as follows:

"[(1-A) Any person who contravenes any provisions

of Chapter V-A, shall be punishable with imprisonment

for a term which shall not be less than [three years] but

which may extend to seven years and also with fine

which shall not be less than [ten] thousand rupees]."

So far as the substantive offence is concerned, 49-B (iv)

prima facie do make out an offence under the Wild Life Protection

Act, 1972 in respect of the factual circumstances of the case as

allegedly projected by the prosecution.

Having regard to the purpose for which the present Act

has been brought into force with necessary amendments, I am of

the view that the learned trial court while refusing to frame charges

under Section 51 of the Wild Life Protection Act should have

assigned reasons. The overall issues so canvassed in respect of the

evidence do not inspire confidence of this Court as to why the

charges were not framed. As such, this Court do not feel it fit and

proper to appreciate the merits on the basis of evidence which has

been adduced before the learned trial court and the finding which

has been arrived at.

Learned trial court will freshly consider the aspect of the

applicability of Wild Life Protection Act, see the possibility whether

the charges can be framed under the said Act and if required

adduce additional evidence along with the evidence which is already

available on record, give sufficient opportunity to the appellant to

rebut the prosecution case and then arrive at a fresh finding.

In view of the aforesaid observations, the judgment and

order dated 23.09.2022 convicting the appellant under Sections

379/411 of the Indian Penal Code is hereby set aside. The case

being Sessions Trial Case No.11(02) of 2020 is remanded back to

the learned trial court. Learned trial court will cross-check the

applicability of the Wild Life Protection Act and thereafter arrive at a

fresh finding in the mode and manner as directed above.

With the aforesaid observations, CRA (SB) 152 of 2022 is

disposed of.

Pending application, if any, is consequently disposed of.

The appellant is directed to apply before the learned trial

court for furnishing a fresh bond, if required.

Department is directed to send back the lower court

records immediately.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance of all requisite

formalities.

(Tirthankar Ghosh, J.)