Karnataka High Court

Devaraj Hegade vs State Of Karnataka on 3 August, 2023

Bench: M.Nagaprasannapresided Bymnpj

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                                                      NC: 2023:KHC-D:8187
                                                      CRL.P No. 101073 of 2022




                                IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH

                             DATED THIS THE 3RD DAY OF AUGUST, 2023

                                             BEFORE

                            THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                           CRIMINAL PETITION NO. 101073 OF 2022 (482)


                      BETWEEN:

                      1.    DEVARAJ R HEGADE
                            S/O RAGHUPATI HEGADE,
                            AGE. 52 YEARS,
                            OCC. ASSISTANT EXECUTIVE ENGINEER,
                            CITY SUB DIVISION,
                            HESCOM, DHARWAD
                            R/O.NO.74, 4TH CROSS,
                            SHARADA COLONY,
                            VIDYAGIRI,
VISHAL                      DHARWAD-580001.
NINGAPPA
PATTIHAL              2.    PRANESH R MUGALIHAL
                            S/O RAMACHANDRA,
Digitally signed by
VISHAL NINGAPPA             AGE. 59 YEARS,
PATTIHAL                    OCC. SECTION OFFICER,
Date: 2023.08.08            HESCOM, DANDELI,
11:00:05 +0530
                            R/O. KEB COLONY,
                            HALIYAL ROAD, DANDELI,
                            DIST. UTTARA KANNADA
                            (KARWAR)-581301.

                      3.    JOSEPH K FERNANDES
                            S/O. KRISTO FERNADES,
                            AGE. 47 YEARS,
                            OCC. METER READER,
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                               NC: 2023:KHC-D:8187
                               CRL.P No. 101073 of 2022




   HESCOM, JOIDA,
   R/O. NEAR HESCOM, JOIDA,
   DIST. UTTARA KANNADA
   (KARWAR)-581301.
                                       ... PETITIONERS
(BY SRI. AVINASH M ANGADI, ADVOCATE)

AND:

   STATE OF KARNATAKA,
   THROUGH ASSISTANT CONSERVATOR
   OF FOREST, DANDELI SUB DIVISION,
   R/BY ITS STATE PUBLIC PROSECUTOR,
   HIGH COURT OF KARNATAKA,
   DHARWAD-581301.
                                    ... RESPONDENT
(BY SRI. V S KALASURMATH, HCGP)


    THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C. SEEKING TO ALLOW THIS PETITION AND QUASH
THE ORDER DATED 03.04.2021 IN CC NO.799/2012
PENDING ON THE FILE OF CIVIL JUDGE AND JMFC,
DANDELI   FOR   THE   OFFENCES    PUNISHABLE    UNDER
SECTION 9,   39, 51, 55, 56, 57, 58 OF THE WILDLIFE
PROTECTION ACT AND      SECTION 429 OF IPC AND ALL
FURTHER   PROCEEDINGS    PURSUANT    TO   THEREIN    IN
RESPECT OF THE PETITIONERS/ACCUSED NO.2 TO 4
HEREIN.


    THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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                                   CRL.P No. 101073 of 2022




                          ORDER

1. The petitioners are before this Court calling in

question the proceedings in C.C. No.799/2012, pending on

the file of the Civil Judge & JMFC, Dandeli registered for

the offences punishable under Sections 9, 39, 51, 55, 56,

57 & 58 of the Wildlife Protection Act and Section 429 of

IPC.

2. Heard the learned counsel appearing for the

parties.

3. The Facts in brief, germane are as follows:

The petitioners are arrayed as accused Nos.2 to 4.

On 03.12.2011, it is the case of the prosecution that in the

agricultural land bearing Sy.No.89, which belonged to

accused No.1, a male elephant aged about 35 years comes

in contact and dies due to electrocution, based upon the

said incident, a crime comes to be registered against

several accused, including these petitioners on

12.10.2012, alleging the offences punishable as afore

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quoted. The Police after investigation file a charge sheet as

well. The concerned Court takes cognizance of the offence

and issue summons to the accused including the

petitioners and registers C.C. No.799/2012. Registration of

the criminal case against the petitioners lead these

petitioners before the concerned Court, by filing an

application under Section 239 of the Cr.P.C. seeking their

discharge from the array of accused. This comes to be

allowed by the concerned Court in terms of its order dated

05.03.2015. Therefore, the petitioners were discharged.

4. During the conduct of the trial, it transpires that

the witnesses while tendering evidence indicates that the

petitioners are also responsible for the death of the

elephant. Immediately thereafter the prosecution files an

application under Section 319 of the Cr.P.C. bringing in

these petitioners back into the web of crime. It is this

action that is called in question by the petitioners, in the

case at hand.

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5. Learned counsel appearing for the petitioners

would contend with vehemence the petitioners were by a

reasoned order of discharged, by the concerned Court

once having been discharged, on a very frivolous

statement, Section 319 is misused to bring the petitioners

back into web of the crime. He would further contend that

the crime against accused No.1, upon whom all allegations

were made, dies during the pendency of the trial and the

proceedings have stood abated against him. He would

submit that the proceedings be quashed against the

petitioners.

6. Learned HCGP would submit that Section 319

permits inclusion of accused, who have been left of during

the filing of the charge sheet or even accused who are not

arrayed as accused in the Crime. He would submit that the

proceedings be continued and the petitioners come out

clean in the trial.

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7. I have given my anxious consideration to the

submissions made by the respective learned counsels and

have perused the material available on record.

8. The afore narrated facts are not in dispute. The

electrocution being the reason for the death of an elephant

is a matter of record. The electrocution happening in the

house of accused No.1 for him not maintaining the meter

board, is also a matter of record. The petitioners were

arrayed as accused at the time when the FIR was

registered. The Police conduct investigation and filed a

charge sheet in C.C. No.799/2012. It is then the

petitioners seek discharge from the array of accused

before the concerned Court. The concerned Court in terms

of its order dated 05.01.2015 discharges the accused

Nos.2 to 4 from the array of accused. The reasons

rendered for such discharge reads as follows:

"8. POINT No.1: The Assistant Conservator of Forest, Dandeli Sub-Division, Dandeli has filed chargesheet against accused No.1 to 4 alleging that they have committed the offences punishable under

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Section 51 of the Wild Life Protection Act and Section 429 of IPC. The allegation made against the accused persons are that on 03.12.2011, accused No.1 was caused the death of a male elephant aged about 35 years by electric shock from the Ibex fence laid around his landed property bearing survey No.89 of Hudasa village illegally connected to the electric meter board of the house of accused No.1. At the time of commission of the said offence by the accused No.1, accused No.2 was in charge Assistant Executive Engineer O & R of Rural Sub-Division, HESCOM, Dandeli, accused No.3 was the Section Officer of HESCOM and accused No.4 was the Section Officer of HESCOM. They have not taken any legal action against accused No.1under the provisions of the Karnataka Electricity Act. Therefore, indirectly, they are also indirectly liable for the death of the elephant. Fore the aforesaid reason, the Investigation Officer has filed the chargesheet upon enquiry.

9. Whether the elephant was died due to electric shock and the said electricity connection was given by accused No.1 directly from the electricity meter board of his house is a fact in issue to be decided in a full pledged trial. The Investigation Officer, during the course of investigation has recorded the witness statements of the prosecution witnesses and produced it alongwith his report under

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Section 173 of Cr.P.C. The Investigation Officer has also received a letter from accused No.2 to the effect that no licence has been given to connect the electricity power directly to Ibex fence from the electric meter of the house of accused No.1. He has also given the statement to the effect that the cause of death of the elephant was due to the electric shock caused from the Ibex fence, which was directly connected to the electricity connection illegally. The Investigation Officer has also recorded the statements of accused No.3 and 4 wherein they have also stated the very same facts. The documents collected by the Investigation Officer during the course of investigation reveals that accused No.2 to 4 have not taken any legal action against accused No.1 for such illegal electric connection to the Ibex fence. As could be seen from the inquiry report filed by the Investigation Officer alongwith final report in Form No.23, it is the only allegation made against accused No.2 to 4 that since they have not taken any action against accused No.1 under the provisions of Karnataka Electricity Act, he has come to the conclusion that indirectly the accused No.2 to 4 are also parties to the cause of the death of an elephant. If accused No.2 to 4 have failed to take any action against accused No.1 for his commission of any offence constitutes under the provisions of the Karnataka Electricity Act, they may be proceeded

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with departmental disciplinary action for their omission to do in discharging their publication. For the only purpose that accused No.2 to 4 have not taken any action against accused No.1 under the provisions of Karnataka Electricity Act it cannot say that they have also indirectly liable for the death of an elephant. The said allegation of the Investigation Officer will not attract any ingredients of the offences punishable under Section 51 of the Wild Life Protection Act and Section 429 of IPC. Under these circumstances, upon considering the police report and the documents sent with it under Section 173 of Cr.P.C., the charges against accused No.2 to 4 to be ground less and therefore, they are liable to be discharge. In view of the same, the remaining ground urged by accused No.2 to 4 with regard to the non-compliance of Section 197 of Cr.P.C. does not survive for consideration. Hence, I answer the above point in the affirmative"

9. The reasons so rendered by the concerned

Court to discharge the petitioners clearly indicates that it

was accused No.1 who was directly responsible for the

death of an elephant, as it is in his house the electricity

meter board was nor appropriately kept. On the basis of

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the evidence that was already before the Court discharged

the petitioner.

10. The trial goes on against the accused No.1 - the

Range Forest Officer tenders his evidence on 26.02.2021,

the evidence so tendered reads as follows:

"5. The said death of the elephant has happened on account of the negligence of both the land owner in adopting the fencing and the HESCOM for not properly maintaining their wires. The witness identifies the accused present in the court as the owner of the said land. The witness identifies the elephant through Ex.P.7 to Ex.P.10.

6. Thereafter we sent the body of the deceased elephant to the veterinary doctor Joida. The said veterinary doctor gave the post-mortem report and we cut the tusks of the elephant. The witness identifies the tusks at Ex.P.11 and Ex.P.12."

11. It is the afore quoted evidence that drives back

the petitioners into the web of crime, as immediately

thereafter the prosecution files an application under

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Section 319 to bring in the petitioners back into C.C.

No.799/2012, if the order of discharge and the evidence

that are taken into of, it would become a clear case were

Section 319 is misused by the prosecution to bring in the

petitioners back into the web of crime, as it runs counter

to what the Apex Court has held in the case of Sukhpal

Singh Khaira Vs. State of Punjab reported in (2023)1

SCC 289, wherein the Apex Court has held as follows:

41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC?

41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.

41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed

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before proceeding further with the trial in the main case.

41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with.

41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.

41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the

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involvement of the additional accused to be summoned in the split-up (bifurcated) trial.

41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for re-hearing.

41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.

41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.

41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier:

(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.

(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.

42. Having answered the questions referred, in the above manner, we direct the Registry to obtain

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orders from the Hon'ble the Chief Justice and place before the appropriate Bench to take a decision on the factual aspects arising in the case in the background of the legal position and contentions on merits."

12. The Apex Court has laid down the guidelines for

exercise of power under Section 319 of the Cr.P.C. The

Apex Court directs that it should be cautiously used and

not loosely, as it is an extreme power to bring in the

accused, who have been let of. If the facts obtaining supra

are considered on the bed rock of law laid down by the

Apex Court in the case of Sukhpal Singh Khaira Vs.

State of Punjab (SUPRA), the proceedings against the

petitioners in the second stint becomes unsustainable.

13. The other circumstance is that, the death of

accused No.1 during the pendency of the proceedings and

those proceedings having been abated, against the