CRLR/364/2019
2021 Latest Caselaw 1591 UK

                                                                          RESERVED

    IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                       Criminal Revision No. 364 of 2019

       Babu aged about 62 years (male)
       S/o Mohammad Hussain
       R/o Opposite Surendra Petrol Pump
       Behind Reliance Petrol Pump
       Nayee Basti, Indra Nagar,
       Kichha, District Udham Singh Nagar

                                                                  ......... Revisionist

                                             Vs.

       State of Uttarakhand
       Through its Secretary, Home
       Govt. of Uttarakhand, Dehradun

Present:
           Mr. D.N. Sharma, Advocate for the revisionist.
           Mr. Lalit Miglani, A.G.A. for the State.


                                      JUDGMENT

Per: Ravindra Maithani, J.

The instant revision is directed against the followings:-

(i) Judgment and order dated 04.10.2013 passed

in Criminal Case No. 42 of 2013, State v.

Babu passed by the Court of Civil Judge (Sr.

Division)/Judicial Magistrate, Rudrapur,

District Udham Singh Nagar (for short, "the

case"), by which the revisionist has been

convicted under Section 51 of the Wild Life

(Protection) Act, 1972 (for short, "the Act")

and sentenced thereunder; and

(ii) Judgment and order dated 09.05.2019 passed

in Criminal Appeal No. 234 of 2013, Babu v.

State of Uttarakhand, passed by the First

Additional Sessions Judge, Udham Singh

Nagar (for short, "the appeal), by which the

judgment and order dated 04.10.2013 passed

in the case has been confirmed.

2. Facts necessary for disposal of the instant revision, briefly

stated, are that on 23.06.2006, a police party was on the patrolling

duty, when they suspected the revisionist and apprehended him.

15 tortoises were recovered from his possession, which he had kept in

a bag. Based on it, an FIR was lodged and investigation carried out and

a challani report was submitted before the Court. Based on the challani

report, the cognizance was taken. After furnishing copies of the police

documents, on 17.08.2006 charge under Section 39 read with 51 of the

Act was framed against the revisionist, to which he denied and claimed

the trial.

3. The prosecution in all examined four witnesses, namely,

P.W. 1 Sub Inspector Abul Kalam, P.W. 2 Head Constable

Chandrapal Singh, P.W. 3 Head Constable Chani Ram and P.W. 4

Constable Nain Singh.

4. The revisionist was examined under Section 313 of the

Code of Criminal Procedure, 1973 ("the Code").

5. After hearing the parties, by the impugned judgment and

order dated 04.10.2013, the revisionist was convicted and sentenced,

as stated hereinbefore. The appeal preferred against it also stood

dismissed. Aggrieved by it, the instant revision.

6. Heard learned counsel for the parties and perused the

record.

7. Learned counsel for the revisionist would submit that in

the instant case compliance of Section 50(4) of the Act has not been

made, which vitiates the entire trial. It is also argued that the

complainant has not been examined; all the witnesses are police

personnels, which makes the case doubtful.

8. Learned counsel for the revisionist would also argue that

there is a violation of mandatory provision of the Act in the instant

case because the cognizance of the offence under the Act could have

been taken on a complaint as required under Section 55 of the Act, but

in the instant case, it is argued, that the cognizance has been taken on a

challani report, which is bad in the eyes of law and it vitiates the entire

trial. Therefore, the revisionist deserves to be acquitted on this ground

alone.

9. On behalf of the State, learned counsel would submit that

if an FIR is lodged under the provision of the Act, investigation may

be carried out and even if a complaint is not filed, it will not make any

difference.

10. This is a criminal revision. The scope of criminal revision

is much restricted to the scope of examining correctness, legality and

propriety of any finding, sentence or order, etc. In the case of Amit

Kapoor v. Ramesh Chander & another, (2012) 9 SCC 469, the Hon'ble

Supreme Court observed " revisional jurisdiction can be invoked

where the decisions under challenge are grossly erroneous, there is

no compliance with the provisions of law, the finding recorded is

based on no evidence, material evidence is ignored or judicial

discretion is exercised arbitrarily or perversely. These are not

exhaustive classes, but are merely indicative. Each case would

have to be determined on its own merits".

11. In so far as non-examination of public witnesses are

concerned, this may not be a ground in the instant revision to make any

interference. Even if the complainant is not examined, it will have less

bearing. In the instant case, after recovery an FIR was lodged and after

investigation challani report was filed. The words "challani report" are

not as such used in the Criminal Procedure Code, 1973. It uses the

words "police report", which is submitted after investigation. After

investigation, any report that is submitted would definitely fall under

the category of police report.

12. Now, there are two legal questions which have been

raised on behalf of the revisionist. They are : (i) non compliance of

Section 50(4) of the Act; and (ii) non-compliance of Section 55 of

the Act.

13. Section 50(4) of the Act is as hereunder:-

"50. Power of entry, search, arrest and detention. - (1)....

(2)....

(3)....

(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard."

14. In the instant case, the recovery memo is exhibit A-1,

which makes a reference that the case shall be disposed of after

discussing the matter with the forest officers. The recovery in the

instant case was made by SI Abdul Kalam. In his statement as PW 1,

states that the information of recovery was given to the forest officer.

But, there is no record to it; nothing has been proved. It has not been

shown by the prosecution as to who from the Forest Department was

informed; how the information was sent. Mere oral statement does not

prove that the compliance of Section 50(4) of the Act was made. But,

is it such a non-compliance which vitiates the entire trial? It will be

examined.

15. The another objection is with regard to non-compliance of

Section 55 of the Act, which is as hereunder.

"55. Cognizance of offense. - No court shall take cognizance of any offence against this Act on the complaint of any person other than -

(a) The Director of Wile 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; or (bb) the officer-in-charge of the zoo in respect of violation of provision of Section 38-J; 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."

16. Section 55 of the Act categorically provides that the

cognizance under the Act shall be taken on a complaint of a person,

who has been specified in the section itself. It is admitted on behalf of

the revisionist as well as the prosecution that Sub-Inspector, Police

has also been authorized to file a complaint in such matter pursuant to

a Government Order of 30.04.1976.

17. The question to be answered is : if cognizance is not taken

on a complaint or is taken on a challani report, does it also vitiate the

entire trial? Will it have the effect of reversing the finding of

conviction and recording a finding of either acquittal or remanding the

matter for de novo trial. Irregularities, which are committed during the

course of trial and its effects have been provided under the Code.

Chapter XXXV of the Code deals with it. A reference may be made to

Section 460(e) and 461(k) which are as under:

"460. Irregularities which do not vitiate proceedings. - If any Magistrate not empowered by law to do any of the following things, namely:-

(a)...

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190. ........................................................................ erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered."

* * * "461. Irregularities which vitiate proceedings. - If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-

(a)...

(k) takes cognizance of an offence under clause (c) of sub- section (1) of Section 190.

......................................................................... his proceedings shall be void."

18. A mere distinction between these two clauses would

reveal that even if a Magistrate not empowered to take cognizance,

takes cognizance under clause (a) or clause (b) of sub-section (1) of

Section 190 of the Code, the proceeding shall not be set aside merely

on that ground alone. It means, if there is a complaint or a police report

and cognizance is taken on it by a Magistrate not empowered, this

solely does not vitiate the trial. But, if the Magistrate is not empowered

and he suo motu takes cognizance, then in view of Section 461(k) of

the Code, the proceedings shall be void. This is just a distinction

between cognizance taken on police report or complaint and

cognizance taken suo motu by a Magistrate not empowered to do so.

19. Section 462 of the Code makes provision with regard to

the proceedings in wrong place. Section 464 has the relevance when

there is an omission to frame charge or absence or error in charge.

Section 465 of the Code is quite relevant for the instant purpose which

provides the circumstances when finding or sentence are reversible by

reason of error, omission or irregularity. Section 465 of the Code is as

hereunder:-

"465. Finding or sentence when reversible by reason of error, omission or irregularity. - (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby."

(emphasis supplied)

20. The phrase "failure of justice" is, in fact, very important

in determining the effect of error. If the effect of error results in a

"failure of justice", the finding, sentence of order may be reversed or

altered. But, if error does not entail in a "failure of justice", it will have

no effect.

21. What is "failure of justice"? What if a mandatory

provision of law is violated during investigation or at the trial? Does it

automatically result in a "failure of justice"?

22. In the case of H.N. Risbud and another v. State of Delhi,

AIR 1955 SC 196, a police officer below the rank of Deputy

Superintendent of Police investigated an offence punishable under

Section 5 of the Prevention of Corruption Act, 1947 without order of

the Magistrate and when almost the investigation was completed such

permission was obtained, which was mandatory in view of Section

5(4) of that Act. Under such facts and circumstances, the Hon'ble

Supreme Court, inter alia, held as under:

"9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr.P.C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., sections 193 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537, Cr.P.C., which is in the following terms is attracted:

"Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice".

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in - Prabhu v. Emperor1' and - 'Lumbhardar Zutshi v. The King2' These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."

(emphasis supplied)

23. In the case of Willie (William) Slaney v. State of Madhya

Pradesh, AIR 1956 SC 116, an accused was charged for offence under

Section 302 read with 34, but he was convicted under Section 302 IPC.

An argument was raised that as the accused was not charged with

having murdered the man personally, he cannot be convicted under

Section 302 IPC. If there is any procedural lapse, what would be

principles that may guide in such a situation? What is the concept of

full and fair trial and what are those errors and omissions, which may

1. AIR 1944 Privy Council 73

2. AIR 1950 Privy Council 26

vitiate a trial, this has been discussed by the Hon'ble Supreme Court in

para 5, which is as under:

"5. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well- established and well-understood lines that accord with our notions of natural justice.

If he does, if he is tries by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based."

24. In para 16, the test has been laid. The test is : whether

disregard of a particular provision amounts to substantial denial of a

trial? The Hon'ble Supreme Court observed as hereunder :

"15. We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to 'substantial' denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice".

It will be observed that disregard of an express prohibition was regarded as curable in "Zahiruddin v.

' Emperor3 so the question whether a particular provision is stated in positive or in negative terms is not the true criterion.

25. In the case of Shamnsaheb M. Multtani v. State of

Karnataka, (2001) 2 SCC 577, an accused was convicted for the

3. AIR 1947 Privy Council 75

offence under Section 302 and 498-A IPC but convicted under Section

304-B IPC. The question raised was : whether an accused who was

charged under Section 302 IPC could be convicted alternatively under

Section 304 B IPC, without the said offence specifically being put in

the trial. The Hon'ble Supreme Court in that case discussed the

provision of Section 464 of the Code, which deals with effect or

omission to frame charge, etc. and discussed the phrase "failure to

justice" in para 21, 22 and 23 of the judgment, which are as hereunder:

"21. The crux of the matter is this :Would be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

"464. (1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby"

22. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the same is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of Environment4). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."

4. (1977) 1 All ER 813: 1978 AC 359: (1977) 2 WLR 450 (HL)

26. In the case of Shanmsaheb M. Multtani (supra), the

Hon'ble Supreme Court finally observed that the accused in that case

was deprived of the opportunity to disprove the burden cast on him by

law and provided him an opportunity to disprove the presumption.

27. In the case of State of M.P. v. Bhooraji and others, (2001)

7 SCC 679, cognizance was taken by the court of Sessions, without the

case having been committed to it and after trial, conviction was

recorded. The High Court ordered de novo trial. The Hon'ble Supreme

Court discussed the provision of Section 465 of the Code and also

discussed the phrase "failure of justice" and observed that de novo trial

should not be ordered in routine. The Hon'ble Supreme Court

observed in para 8 as hereunder:

"8. The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert a "failure of justice". Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has plenary powers for re- evaluating or reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles to reach the court and deposed their versions in

the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation."

28. The principles of law as laid down in the case of Bhooraji

(supra) were further followed in various cases. In the case of Girish

Kumar Suneja v. Central Bureau of Investigation, (2017) 14 SCC 809,

the Hon'ble Supreme Court referred to the principles of law laid down

on this issue and also noted the Advisory Opinion of the International

Court of Justice on "failure of justice" term and observed in para 77 as

hereunder:

"77. An allegation of "failure of justice" is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of justice or a violation of law or an irregularity in procedure - it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjournment wrongly declined, etc. To conclude, therefore, Section 19(3)(c) of the PC Act must be given a very restricted interpretation and we cannot accept the overbroad interpretation canvassed by the learned counsel for the appellants."

29. In the case of Kamil v. State of Uttar Pradesh, (2019) 12

SCC 600 the phrase "failure of justice" was further discussed and the

Hon'ble Supreme Court observed "in order to judge whether a

failure of justice has been occasioned, it is relevant to examine

whether the accused was aware of the basic ingredients of the

offence for which he is being convicted and whether they were

explained to him and whether he got a fair chance to defend".

30. The above principles of law as laid down by the Hon'ble

Supreme Court in various cases, clearly settle the law that any

procedural irregularity may not automatically vitiate any trial. In fact,

this is what Section 465 of the Code provides. "failure of justice" has

to be shown. "failure of justice" is something more than a mere

procedural irregularity. If in a case, principles of natural justice have

not been followed; accused was not heard or he was not provided an

opportunity to defend himself; or he was not told of the charges which

he was to face in the trial; or he was not given opportunity to rebut the

presumption that could have been taken against him in the trial, it may

perhaps be argued that it has occasioned in a "failure of justice".

31. In the instant case, during trial at no point of time the

revisionist raised the plea that the cognizance was not taken on a

complaint and it is violation of Section 55 of the Act. The revisionist

also did not take the plea that in the instant case compliance of Section

50(4) of the Act has not been done. Not only in the trial, but in the

appeal also, these grounds were not taken. In fact, in the revision, the

ground under Section 55 of the Act has not been taken. The only

ground pertaining to Section 50(4) of the Act has been taken in the

revision.

32. An irregularity has, in fact, been committed in the trial of

the case. It should have been based on a complaint, but it proceeded on

a chargesheet. The procedure for trial for a complaint case is different

than the procedure for trial of the cases based on a police report. But,

both the trials, either on a police report or on a complaint, gives

sufficient opportunity to an accused to defend his case. In the instant

case, after filing of challani report, the cognizance was taken and the

revisionist was given copies, as required under Section 207 of the

Code. He was given all the material that was collected during the

investigation, including the challani report. Thereafter, charges were

framed against him. He was categorically told that on 23.06.2006 at

08:30, tortoises were recovered from his custody, to which he denied.

All the witnesses were cross-examined by the revisionist. The

revisionist was given an opportunity to explain the circumstances

appearing against him in the evidence by recording his statement under

Section 313 of the Code. The revisionist did not choose to adduce

evidence in his defence. Therefore, this Court is of the view that mere

non-compliance of Section 50(4) and 55 of the Act does not vitiate the

trial in the instant case.

33. In view of the foregoing discussion, this Court is of the

view that there is no reason to make any interference in the conviction

recorded in the case, as confirmed in the appeal.

34. The above analysis leads to the dismissal of the revision,

but this Court has also looked into the quantum of sentence.

35. The revisionist has been sentenced to three years rigorous

imprisonment, with fine. He was found with 15 tortoises, which were

very small. There are photographs of tortoises, which were recovered

from the revisionist. The total weight of the tortoises was about 10 to

15 kgs., as told by P.W. 1 S.I. Abul Kalam.

36. No argument has been raised on the quantum of sentence.

37. The revisionist was examined under Section 313 of the

Code on 18.12.2013. On that day, his age is recorded as 60 years. It

means, as of now, the revisionist is a 67 years old man. He is a

labourer, as recorded in his statement under Section 313 of the Code.

He was arrested on 23.06.2006 and his bail bonds were accepted on

06.09.2006. In appeal, his conviction was recorded on 09.05.2019 and

since then he is in jail i.e. for more than two years he is in custody.

38. Having considered these factors, including the nature of

offence, the age and social positioning of the revisionist, etc., this

Court is of the view that it is a case, which warrants interference in so

far as the quantum of sentence is concerned.

39. Having considered all the attending factors, this Court is

of the view that if the sentence is restricted to the period already

undergone by the revisionist in the instant case, it would serve the ends

of justice. Fine need not be imposed upon the revisionist. Accordingly,

the revision may be partly allowed.

40. In view of the above, revision is partly allowed. The

conviction of the revisionist under Section 51 of the Wild Life

(Protection) Act, 1972 is upheld. The revisionist is sentenced to the

period of imprisonment, which he has already undergone in this case.

To that extent, the impugned judgment and orders are modified.

41. Let the revisionist be set free forthwith, unless he is

wanted in any other case.

42. Let a copy of this judgment be sent to the concerned trial

court as well as to the concerned Superintendent of Jail for onwards

compliance.

(Ravindra Maithani, J.) 04.05.2021

Avneet/