Swamy @ Srinivasa vs The Range Forest Officer
2022 Latest Caselaw 8834 Kant

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JUNE, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         CRIMINAL PETITION No.3365 OF 2022

BETWEEN

1.    SWAMY @ SRINIVASA
      S/O LATE AJJAIAH
      AGED ABOUT 29 YEARS
      R/O GANDATURU VILLAGE
      ANTARASANTE HOBLI
      H D KOTE TALUK
      MYSORE DITRICT-571617.

2.    VENAKTESHA H D
      S/O DEVESEGOWDA
      AGED ABOUT 31 YEARS
      R/O MACHURU VILLAGE
      D B KUPPE POST
      H D KOTTE TALUK
      MYSORE DISTRICT-57617.
                                     ... PETITIONERS

[BY SRI. GIRISH B. BALADARE, ADV.]

AND

THE RANGE FOREST OFFICER
FOREST MOBILE SQUAD
MYSORE-571617
                               2



REPRESENTED BY
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560001.
                                         ... RESPONDENT

[BY SRI.K.S.ABHIJITH, HCGP]


      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE FIR FILED
AGAINST PETITIONER BY THE RESPONDENT POLICE I.E.,
RANGE FOREST OFFICER, CIVIL JUDGE AND JMFC AT
H.D. KOTTE IN FOC NO. 38/2021-22 FOR THE OFFENCE
PUNISHABLE U/S 2(31)(B), 2(36), 39, 40, 44, 48(A), 49(B),
50, 51 SCHEDULE 1 SL. NO. 39 OF WILDLIFE PROTECTION
ACT 1972, PENDING ON THE FILE OF ADDL.CIVIL JUDGE
AND JMFC AT H.D. KOTTE AS PER ANNEXURE A.


    THIS CRIMINAL PETITION COMING ON                FOR
ADMISSION THIS DAY, THE COURT MADE                  THE
FOLLOWING:


                        ORDER

Heard Sri. Girish B. Baladare, learned counsel

appearing for the petitioners and Sri.K.S.Abhijith, the

learned High Court Government Pleader appearing for

the respondent.

2. The petitioners are before this Court calling

in question the proceedings in F.O.C.No.38/2021-22,

registered for offences punishable under Sections 2(31)

(b), 2(36), 39, 40, 44, 48(a), 49(a), 50 and 51, Schedule

3. The issue in this petition stands covered by

the judgment rendered by the

Co-ordinate Bench of this Court in

Crl.P.No.11068/2013 and connected case, disposed

of on 07.02.2017, wherein this Court has held as

follows:

"3. The brief factual matrix of the case are that, on 18.02.2012 at about 15 hours, one Mr. Anand M. Vaghamode, the PSI of Aigali Police Station, Belgavi District, received a credible information that some persons are carrying the Tortoise illegally in an Indica Car bearing Registration No. KA-14/N-1525 for the purpose of selling them and for that purpose they were coming from a place called Jumbarwada proceedings towards Suttatti via Yallammawadi. On receiving such information, the said police officer along with his staff had

intercepted the said vehicle near Suttatti Cross at 16 hours and got confirmed that the accused Nos. 1 to 5 were transporting the Tortoise in a bucket containing water and as they have not given any explanation for the same, the police found that they committed offences under the Wild Life Protection Act, 1972 ( for short 'WLP Act,') and they seized the said Tortoise and also the vehicle, arrested the accused persons and with a private complaint, accused persons were produced before the Additional Civil JMFC, Aigali. On such production of the accused and the Tortoise with a private complaint by the jurisdictional police, the learned Magistrate has ordered to register a case dispensing with the statement of the complainant under Section 200 of Cr.P.C and thereafter remanded the accused persons to the custody. It appears subsequently, the accused persons have been released on bail.

4. Sri. V.M. Sheelavant, learned counsel for the petitioners has projected his argument on two points before this court that:

The complaint itself is not maintainable as it has not been filed by the competent authority as per the WLP Act, 1972. Due to the private

vengeance the PSI has filed a private complaint against the petitioners. The petitioners have also filed a complaint against the said PSI, Aigali, as he demanded a sum of Rs.10.00 lakhs bribe and the same has been reduced to Rs.5.00 Lakhs later, and as they could not pay that amount, in order to fix them in a criminal case, he has invented this method of fixing them in this case. Therefore, he secured the presence of the petitioners to Aigali Police Guest House and there he demanded money and thereafter, as the amount was not paid, at 8.30 p.m., he prepared a private complaint and lodged the same before the court. Of course, some materials are placed before the court to show that one Mr. Aruna Nayak, Police Inspector, Crime Division, Regional Office, Belgavi, who has conducted enquiry against the PSI, the said Police Inspector gave his finding that the said demand by the police is tentatively established. However, at this stage, the court cannot exclusively rely upon the said report as a conclusive proof. No material is placed before the court to show that the Disciplinary Authority has passed any order in respect of the said inquiry conducted by the Police Inspector.

5. Be that as it may. The first and foremost ground that has been urged before this court has no legs to stand. It is seen from the provision under Section 55 of the WLP Act, 1972 that, under what circumstances, the court can take cognizance of the offence under the Act. Section 55 of WLP Act, 1972 reads as under:

55. Cognizance of offences.- No court shall take cognizance of any offence against this Act except 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;

(bb) the officer-in-charge of the zoo in respect of violation of provisions of Section 38; 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.]

On meticulous reading and understanding of the above said provision, it gives empowerment to certain officers to lodge a complaint before the jurisdictional Magistrate. There is absolutely no power that has been given to the police to lodge any private complaint otherwise than the Officers, who are attached to Forest, Zoo etc. Of course Section 55 (c) of the WLP, 1972 Act gives empowerment to some other person, that means any person who has given notice of not less than 60 days in the manner prescribed for the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the Officers authorised as aforesaid, such person also can make a complaint. But, there is no such factual averments made in the complaint filed by the PSI that he is the person who has given notice to the accused persons or the petitioners herein with regard to the alleged offences and of his intention to make a complaint to the Central

Government or to the State Government or the Officers authorised as aforesaid, that means the Officers who are coming under Section 55(a) to (bb). In the absence of such averments, the complainant has to show that either he is authorised by the Act to lodge a complaint or he is specially authorised to do so under any notification by the Competent Government/Authority.

6. Though the learned HCGP has brought to the notice of this court a decision reported in ILR 2008 KAR 1892 between S. Bylaiah Vs. State by Bannerghatta Police, wherein at Para-6, the Court has referred to a Notification in No.AFD 104 FWL 73 dated 16.10.1973, wherein the Government had authorised the following persons to take note of various offences can only file a complaint in the court of law, they are,-

i) All the Forest Officers of and above the rank of a Forester.

ii) All the officers of and above the rank of Sub Inspector of Police, and

iii) All the Revenue Officers and above the rank of a Revenue Inspector.

7. Even considering the said notification issued by the Government, it only empowers the Police Officers who are above the ranks of PSI can lodge the complaint and Sub-Inspects of Police are not authorised either under the said Act or under this notification. No other notification is brought to the knowledge of this court to show the empowerment of the Police Sub-Inspector to lodge a complaint under the WLP Act.

8. Under the above said circumstances, in this case taking of cognizance itself is bad in law, as such all further proceedings are also vitiated by serious procedural irregularity, which in my opinion, amounts to illegality. In the above facts and circumstances of the case, I am of the opinion that the petitioners have made-out a good case for quashing of the proceedings initiated against them."

4. In the light of the order passed by the

Co-ordinate Bench of this Court (supra) and for the

reasons aforementioned, the Criminal Petition is

disposed. The proceedings in F.O.C.No.38/2021-22

pending on the file of the Civil Judge and J.M.F.C., H.D.

Kote stand quashed.

Sd/-

JUDGE

KG