Hardev Steels Private Limited & vs State Of Odisha
2022 Latest Caselaw 4146 Ori

                         IN THE HIGH COURT OF ORISSA AT CUTTACK
                                       CRLMC No. 2272 of 2018

                 Hardev Steels Private Limited &            ....             Petitioners
                 Another
                                                          Mr. Jayadeep Pal, Advocate


                                               -Versus-


                 State of Odisha                            ....        Opposite Party
                                                             Mr. S.S.Mohapatra, ASC


                           CORAM:
                           MR. JUSTICE R.K. PATTANAIK

                                              ORDER

Order No.                                   24.08.2022

  08.       1.    Instant petition under Section 482 Cr.P.C. is pressed into service by

the petitioners for quashing of the impugned order (Annexure-4) in 2(b) CC Case No. 11 of 2013 passed by the learned S.D.J.M., Athgarh for having taken cognizance of the offences under Sections 9 and 39 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Act') on the grounds stated therein.

2. Heard learned counsel for the petitioners and learned counsel for the State.

3. Perused the P.R. as at Annexure-3 and other documents.

4. In the case at hand, a P.R. was filed by the Wild Life Warden-cum- Divisional Forest Officer, Athgarh Division alleging therein that on the date of occurrence, on a report being received from VAS, Gurudijhatia,

it was confirmed that a female elephant died due to electrocution and the petitioners to be involved for the same as there was gross negligence on their part which was even ascertained on physical verification during which it was found that there was no boundary wall and tearing wires were found near the spot not being insulated which was connected to a motor pump and that had not been dismantled. Accordingly, with the above allegation, on account of death of elephant, the P.R. was submitted against the petitioners for having contravened Sections 9 read with 39 of the Act punishable under Sections 51 read with Section 58 thereof.

5. The learned counsel for the petitioners submits that the prosecution is not maintainable, inasmuch as, no any provision of the Act can be said to have been contravened for being punishable under Section 51 of the Act as there was no hunting of the wild elephant which is essentially required for such a prosecution. While contending so, the contents of the P.R. have been read out and also a judgment of the Karnataka High Court in the case of Nooralachari Vrs. State (Criminal Appeal No.715 of 2011) disposed on 15th March 2022 is referred to in order to convince the Court that Section 9 of the Act does not apply as there was absence of mens rea on the part of the petitioners to hunt the elephant. On the other hand, the learned counsel for the State submits that there was gross negligence on the part of the petitioners since because the wild elephant was found dead inside the premises of the steel plant where live wires were found waylaid and exposed having been connected to a motor pump supplied with electricity unauthorizedly and therefore, rightly a P.R. was submitted on account of contravention of Sections 9 and 39 of the

Act and for having committed an offence punishable under Sections 51 read with Section 58 of the said Act and hence, this Court should not interfere with it in exercise of inherent jurisdiction.

6. The Court perused the P.R. and other materials. As it appears from the P.R. that the elephant had entered inside the premises of the plant, whereafter, the unfortunate incident happened. It is made to suggest that the wild animal was pregnant and accidentally it had come in contact with the electric wire which was connected to a motor put in place apparently to remove water from a pond. The question is, though the petitioners had been negligent and a motor pump was found near the spot supplied with electricity unauthorizedly as a result of which the elephant came in contact and died, whether, under such circumstances, the prosecution under Sections 9 and 39 of the Act punishable under Sections 51 and 58 thereof could be held as maintainable, when the essential ingredient should be hunting of a wild animal?

7. The relevant provisions of the Act which are to be taken cognizance of by the Court are as follows:

"9. Prohibition of hunting-No person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under section 11 and section 12"; and

"39. Wild animals, etc. to be Government property-(1) Every-

(a) wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or bred in captivity or hunted in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed by mistake; and (b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which

any offence against this Act or any rule or order made thereunder has been committed;(c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed; (d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act shall be the property of the State Government and where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government.

(2) Any person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining such possession, make a report as to the obtaining of such possession to the nearest police station or the authorized officer and shall, if so required, hand over such property to the officer-in-charge of such police station or such authorized officer, as the case may be.

(3) No person shall without the previous permission in writing of the Chief Wild Life Warden or the authorized officer (a) acquire or keep in his possession, custody or control, or (b) transfer to any person, whether by way of gift, sale or otherwise, or (c) destroy or damage, such Government property".

8. Section 2(16) is with regard to the definition of 'hunting' as appearing in the Act which shall have to be read with Section 9 thereof and the same is reproduced herein below:

"2(16) hunting, with its grammatical variations and cognate expressions, includes-

(a) killing or poisoning of any wild animal or captive animal and every attempt to do so;

(b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so;

(c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles."

9. The learned counsel for the State submits that Clause(c) of Section 2(16) of the Act may apply to the present case as because the wild elephant was electrocuted and as a result of such electrocution, she died. In response to the above contention, the learned counsel for the petitioners submits that the definition of 'hunting' as it appears from Section 2(16) of the Act shall have to be read in the context and the purpose with the requisite intention of hunting of a wild animal which must exist.

10. On a bare reading of Section 2(16) read with Section 9 of the Act, it suggests that the term 'hunting' has been defined with all grammatical variations and cognate expressions which is to include killing, capturing and injuring etc. of a wild animal. If read as a whole, the Court is of the view that there has to have hunting of the wild animal for initiating a criminal action under the provisions of the Act. It is further contended that an omission would constitute an actus reus and give rise to liability when the law imposes a duty to act and the person is in breach of that duty and in the present case, there is no allegation that the petitioners failed to perform any duty enjoined in law and hence, no criminal liability could have been fastened against them. According to the petitioners, there has been no violation under the Act to invite a prosecution more so when the plant does not come or fall within the area of any 'elephant corridor' notified by the Government nor it is located inside a 'reserve' or protected forest' or

'sanctuary'. The PR does not reveal anything to meet the above contention of the petitioners.

11. In the present case, on a sincere reading of the P.R. it does not appear to show either that the petitioners though were negligent but contravened any of the provisions of the Act. The dead elephant was not possessed by the petitioners. No denial to the fact that the carcass was found lying inside the premises of the plant and it would always be a subject of the Government in view of Section 39 of the Act. But then, the Court reiterates that there was no mens rea as such from the side of the petitioners to commit any crime much less hunting of a wild animal although such an unfortunate incident did happen which could have been avoided. Thus, having appreciated the contentions of the respective parties, the Court finally reaches at a logical decision that in the facts and circumstances of the case, where there has been an accidental death of the elephant, in absence of any culpable intention to hunt the animal, prosecution in contravention of Section 9 and 39 of the Act punishable under Sections 51 & 58 thereof vis-à-vis the petitioners cannot maintained. Such is the view which has been expressed by the Karnataka High Court in Nooralachari (supra) with regard to mens rea having the requisite intention to hunt and in furtherance thereof to cause death of a wild animal. So, the inevitable conclusion of the Court is that the petitioners cannot be criminally prosecuted under the provisions of the Act for the reasons discussed herein above.

12. Accordingly, it is ordered.

13. In the result, the petition filed under Section 482 Cr.P.C. stands allowed. As a necessary corollary, the criminal proceeding vis-à-vis the petitioners in connection with in 2(b) CC Case No. 11 of 2013 arising out of Offence Report Case No. 1K of 13/14 pending in the file of learned S.D.J.M., Athgarh is hereby quashed.

(R.K. Pattanaik) Judge

Kabita