Karnataka High Court
Shekar Dattatri vs Anita Arekal on 12 August, 2011
Author: N.Kumar
Bench: N.Kumar
IN IHE HIGH 'OURI OF KARNAIAKA A BANGALORE
4 t}i. a t 20 I
I IITORL
THE HON BLE MR. JUSTICE N KUMAR
\\ nt iLoilio Lu. 4iIi I ol RUB I (CU \VLAJ
BE I\'t'ELL:
Rkai I) Jiti
S
4
r\4o about 4') Vt
St )
Plot No 40. Doo' \n
1 sISc
hiruvall1IJx ill
L4 oai tjUO n i
4 h-rji,oo Pr:a j
3
,o Jl€ [N ,fx\9r
o 'Ii
N 1' 4 \ )ci
I o
1 I
I Ii lt
I; '
01 't.
4) ' 0--olOL C
I V I IA
I I 4
)
fi3 13'. s 1iai--i. S tu'n t
sri .\
'''citit tb'
Y/ 1i4i S Ic k I •c 41
'Si t iI i-Ut
Dejnil' C. entniIur of Fnrr%l
KU 'till 'J 11 )' 1
Karkaia
2 Sn i{t-ddy
srun j%fl
fit.
Kerekaut' Wild Lile Range
(ceca c
C'hikrnagalt a Dish let
S Stait ul Kimatalw
s ntd1 Is
Print ipal Secret a'v
'crc 1 E g a I:; a e
i-c,
"1uIt t%i on--U flulduiu D1,t Ii
I
Di ns1k r Vc'cthi
i(sO flO I--
T1 '
,Ohi1
4 tIiIt
'i ng3n
n.c d' --c ',•
I
(a;
li_' jr.
'J 1 lI'IIL1 A'Ir at 2..6 'lii! 221 .l
Pt 'ii is'.
ti-c - I"-."'it Di oil d'a pr ,> at, ' i 'J C c 'P (stY ]0 '
el.'. 1 1 3 104)4 €1 3zi iat r c'•'
1 A it: _f%zititJ3 \'. )
1-' 'i. - • $,O' i -- : ti rc ik c I 1t 'I
i' \\ i I j-t tilla )i a c i I 1 t
I- f lIc 1' t - i
Cl
3
ORDER
The petitioners In W.V No. 39704/ 2004 are seeking to quash Annexure-C. the FIR lodged against them by the second respondent.
2. The first peutioner-Shekar Dattatri Is an Internationally acknowledged wIldlil è documentary film-maker founder-trustee ibr environment al education, Chennal, a non profit organisation active In spread ing conservation awareness.
He is a recipient of five national awards for films on Ecology.
Environment and Conservation.
3. In July 2002 the Government of Karnataka had appointed him 11w the filming and production of a 15 minute educational video film on the Kudre mukh National Park. The Government of Karnataka and the first petitioner entered into a memorandum of understanding dat ed 8.7.2002 In this regard.
a copy of which is produced at .An nexure-l) to the Writ Petition.
In terms of the MOC the first pet itioner was to complete the film on or before 31.1.2003.
For this purpose the first I 4 petitioner and his crew members were permitted to enter into the forest. The forest department was to provide accommodation to him and his crew members, provide him with a four wheel drive vehicle for accessing different areas of the forest and a forest guide. The petitioner and his crew members have entered the forest under the said MOU/permit issued by the forest department and have filmed the wildlife as per the MOU. The first petitioner could not complete the entire assignment during the assigned period and had sought an extension from the forest department till 31.3.2003. Annexure E is a copy of the letter written in this regard. The Principal Chief Conservator of Forests (Wildlife). Bangalore. by his letter dated 26.2.2003 has extended the time tifi 31.3.2003. A copy of the same is produced as Anncxure-F. Subsequently. the film was completed. After editing it was handed over to the forest department as per Annexure-G. The Central Empowered Committee constituted by the Hontle Supreme Court of India had commissioned the first petitioner to video document the ecological value and Impact of the mining operations in * 5 Kudremukh National Park and the site inspection of the CEC Member under the directions of the Supreme Court. Accordingly, the first petitioner had submitted an edited video CI) to the CEC. a copy of which is at Annexure-H.
4. Second petitioner-V. Krishna Prasad is not a professional photographer and in no way connected with shooting or production of ifims. He has been associated with the conservation movement since 1982. In 1998 Government of Karnataka appointed him as an Honorary Wildlife Warden under Section 4 of the Wild Life Protection Act as per the notification at Annexure-J. During the period 1998-2002 he was nominated as a member of the Steering Committee. Project Tiger. Ministry of Environment and Forests as per Annexure-K.
5. ThIrd petltioner-D.V.G Irish is also not a professional photographer. He Is a coffee planter hi Chlkmagalur. Owing to his active involvement In wild life conservation activities, the Karnataka Government has selected him as the Honorary V 4 6 Wildlife Warden of Chlkmagalur District twice between 1998 and 2004 as per Annexure-L. BACKGROUND OP THE CASE
6. Kudremukh National Park Is the largest wildlife reserve of tropical wet evergreen forests in the Western Ohats which are recognized as one of the 25 blodlversity hotspots In the entire world. The Park Is the source of three major rivers (Bhadra. Tunga and Nethravathi) and harbors several species of endangered animals such as tiger. leopard. wild dog, gaur. liontafled macaque, hornbllls and king cobra. Because of its biological wealth and importance as a water catchment. the area was notified as a national park excluding revenue villages, patta lands. revenue lands. gomal lands. various rights of way. etc., which are in the park. The petitioners have been closely involved with Its conservation park ovcr the years. One major conservation initiative undertaken by the Government of Karnataka was the Karnataka Tiger Conservation Project. Under this project the petitioners organisallon l)roded 15 four 'I 7 wheel drive jeeps. 2 high speed patrol boats. around 60 wireless sets. more than 1700 field kits and insurance policies for frontline protection staff and conducted a dozen training programs for field staff. The project was carried out in collaboration with the forest department and the petitioners moved around In the National Park to execute project actMtles and document these activities. Letters of appreciation from the Chief Wildlife Warden/DCF, Kudremukh are produced.
7. In the report submitted It was stated that Community Leadership for "flger Conservation primarily aimed at generating local community support for tiger conservation, promoting long-term habitat consolidation through voluntaq resettlement/land acquisitions and continued efforts at tiger conservation including activities In collaboration with the forest department with its goals would be implemented at Kudremukh and other sites. After completion of Tiger Conservation Project, another project titled Community Leadership for Tiger Conservation was initiated in Kudremukh 8 by Ktidreinukh Wildlife Foundation with guidance from petitIoner No.1. Because of this new project primarily Involved work with local communities outside the national park area and did not Involve "study or Investigation of wildlitè as its goal'. there was no need for a permission from the Chief Wildlife Warden under Section 28(2) of the Wildlife (Protection) Act, 1972 (for short hereinafter referred to as 'the Act'). However, some of the project activities cUd involve Interaction with forest department staff and/or entry into the park, such activities were carried out with specific permission obtained from local officials and often In association with them. For example. petitioner No.1 at the request of the then DCF traveled in the park and provided detailed suggestions for Improving the management of the park. Similarly, petitioners were invited by officials to participate in the training of forest staff In wildlife monitoring as well as training in protection duties and these activities were carried out with the involvement of local officials. The petitioners were also involved In providing uniforms and fIeld kits, ew., to staff under the V S 9 banner of the Cult project with official approvaL All these project activities were carried out with full knowledge of local officials and In association with them Is clearly show n by numerous photographs and correspondences Including Invitations and appreciation letters from officials. Under the CLTC Project, the petitioners also interacted with local people living inside the revenue enclosures located in the Kud remukh area, but were outside the boundaries of the natio nal park, using public rights of ways. Even these activities were well known to the forest staff ofilcials who sometim es even accompanied them In these Interactions. Further In the case of a few poor families who had encroached on forest land In Bhagavathy and Bolle, Interactions were carried out In the company of forest officials with their approval as show n by photographs.
8. In addition to Implementing CLTC project, purely out of their concern for wildlife conservation, petitioners have been fighting for the cause of wildlife conservation in Karn atalca, 5'--------
10associated with various other conservation advocacy groups. These groups have been squarely confronting vested interests and combating pressures that are Inimical to wildlife conservation. The NGO Wildlife First based at Bangalore with which petitioners are associated has been engaged in conservation battles against vested Interests and lobbies connected with activities such as timber exploitation and mining in protected areas.
9. WIldlife First filed an Interlocutory Application l.A. 670/2001 in WP 202/1995 before the Hon'ble Supreme Court of India praying for stoppage of iron ore mining In Kudremukh National Park. The petitioners presented crucial evidence before the Honble Supreme Court. This evidence included findings from a scientific study involving petitioners with permissions from the Water Resources Department Government of Karnataka. The study was carried out in the revenue enclosures of Bhagavathy. Bilegal. Malleswara. Nellibeedu, etc.. which are outside the National Park Area. The U study results highlighted the massive soil erosion, sedimentation and siltation problems caused in the Bhadra river system by the mining operations.
10. Petitioners were also involved in supporting the compilation of 10 minute long non-commercial educational video with archival that documented the deleterious impacts of iron ore mining on river ecology. biodiversity and rural livelthoods for the purpose of educating the public. The educational video titled "Mindless Mining" was fonnally presented before the Hon'ble Supreme Court. The State Forest Department and the Chief Wildlife Warden were fully aware of the study report and the educational video being made and presented as evidence before the Honble Supreme Court as far back as the year 2001.
11. The I-lonble Supreme Court in Its judgment In IA 670/2011 noted the ecological damage caused by the mining and ordered the winding up of the mining activities by 2005. 12 Thereafter, the petitioners have been persistently following up the matter with the forest department trying to ensure that a 37 square kilometer area affected by mining be Immediately notified as part of the national park as per the order of the Hotible Supreme Court. The then DCF, Kudremukh Wildli fe Division had also written to the Government In March 2003 urging It. to Include the above area In the national park.
12. DurIng February 2000, pile transporting Iron-ore slurry broke and severely damaged rain forests. At that time the then DC? had recovered a heavy fine of 10 lath rupe es from the mining company. However, after the first respo ndent took over as DCF In July 2003. when a similar Insta nce of ecological damage occurred during June 2003. the Incumbe nt DCF. did not take similar action as required under the Act.
She has totally failed to pursue the matter 1th nece ssary urgency. thus potentially endangering the park from the ravages of continued mining and indirectly benefittin g the mining activities.
13
13. Sect ion 59 of the Wild Life Protection Act provides that any person who is appointed under Chapter 11 (Section 4) of the Wild Life Protection Act is a public servant. SectIon 27 of the Act only prevents persons other than public servants or authorised persons from entering a national park without a permit.
14. It is in this background we have to look into the allegations in the FIR It is dated 17.5.2004. In column No.3 it is stated that the accused named in the said FIR entered the Kerekatte Wildlife Sanctuary in Kudremukh National Park without permission and photograph and, therefore, they have committed ofiènces under Section 27(1) (3), 28(g)(c). 35(6)(8). 51(A), 52 and 58. The mahazar appended to the FIR sets out that in the past it was noticed that the petitioners herein have entered the Kudremukh National Park, a reserve forest without permission as could be seen from the documents. After perusal of the documents available In the office it was found 14 that they entered without permission and, therefore, they have committed an offence under the provisions mentioned In the FIR It is obvious from the documents produced along with the Writ Petition it is only the first petitioner who entered the forest for the purpose of production of a documentary ifim on the basis of a memorandum of understanding entered into between him and the Government of Karnataka. After completing the assignment he has been paid the money. he has handed over the CD, obviously the authorities have not looked into these documents as is clear from the mahazar which is appended to the FIR In fact, petitioners 2 and 3 are not professional photographers at all. They are persons who are appointed bv the Government of Karnataka as Wild Life Warden who are deemed to be public servants by virtue of Section 59 of the Act.
15. A perusal of the complaint filed clearly demonstrates that, under the guise of accusing these petitioners of violating the aforesaid clause what has been alleged is. violation of statutory provisions and orders by these organizations of which 15 these petitioners are members. The Director. Community Leadership for 'Tiger Conservation Project being executed as collaboration in Kudremukh National Park by Kudremukh Wildlife Foundation. Second project is. community leadership for Tiger Conservation Project being executed as collaboration in I3hadra Wildlife Sanctuary by Bhadra Wildlife Conservation Trust. The third project, community leadership for Tiger Conservation Project being executed as a collaboration in Nagarhole (Rajiv Gandhi National Park) through Living Inspiration for Tribals (LIFE) and Nagarahole Wildlife Conservation Education Project (NAWICOED). Therefore, It is clear that these three projects are undertaken by three independent organizations. Clause (6) refentd to supra casts an obligation on the petitioner to inform the undersigned if it is conducting/Intending to conduct any other activities in Karnataka or any activities in rest of India or any activitIes abroad. The pet itioner-organisation is not conducting the aforesaid three projects. The said three projects are conducted 17- 16 by three independent. organisatlons. Therefore, on the face of it the violation complained of is incorrect.
16. In fact on the application filed by these petitioners before the Committee constituted by the Apex Court to monitor the forest and wealth of the wild life which is called Central Empowered Committee, an order came to be passed on 28.4.2004 holding that the Deputy Conservator of Forests has made disparaging remarks on the body constitu ted by the Apex Court, violated the orders passed by such authority, initiated these legal proceedings against the petitioners herein In spite of an order of stay being granted. In fact the proceedings sought to be Initiated by her against the members of the committe was quashed by the Hon'ble Supreme Court on coming t.o know of the same. In fact they have observed in the said order that, the role of NGO's in protection of forest and wildlife has been recognised in Chapter WA as one of the fundamental duties in the Constitution of India. Article 5 lA (g) specifically states that it shall be the duty of every citizen to protect and improve the 17 natural environment Including Ibrests, lakes, rivers and wildlife and to have compassion for all living creatures. But this duty Is without any doubt, subject o statutory permissions wherever required. SectIon 55(c) of the Act empowers any person to file complaint In the competent Court after givIng 60 days notice to the Central or the State Government. A similar provision already exists in the Environment (Protection) Act. 1986. Besides, the notification dated 17.9.2002 by which the CEC was constituted, sub pan (ii) of pan 2 provides that any person can approach the CEC in case any of the orders passed by the Hon'ble supreme Court In the forest matter are perceived to have been violated. Suffice to say that the NGO's and public spirited persons have a critical role to play In the protection of the forest, wildlife and the environment in general. Wherever statutory permissions are required they have to be obtained by all concerned. Besides. the NGO's are expected not to make irresponsible statements or wild allegations.
On the other hand. ii has to be ensured that the provisions of the Acts are not used to harass the people involved in genuin e 18 conservation efforts. The CEC was constrained to observe that the concerned senior officers of the State of Karnataka have preferred to remain as mute spectators to the entire happening Instead of intervening to prevent the matter from sliding downhill Ignoring the larger interest of conservation of fores t and wildlife. Thereafter, they recommended to the State of Karnataka to enquire Into the propriety, legality and the circumstances leading to Initiation of the criminal proceedin gs against the applicants and others and file an enquiry report within one month. it also directed the State of Karnataka to Initiate appropriate action against Deputy Conservator of Forests, Kudremukh WildlIfe Division, for willful violation of the CEC's order dated 28.4.2004 and for making derogato ry comments against the CEC and its members.
17. Therefore. in substance the complaint is these petitioners have contravened clause (6) of the order unde r SectIon 28 of the Act. Clause 6 reads as tinder: - 4
l9 a The applicant organisation has to lqforrn the undersigned ff It Ls conducting/Intending to conduct (V any other activities in Karnataka (II) any activities In rest qf India (111) any activities abroad This irformation is Intended to ensure that sufficient time and focus is given to this project by the applicant organisalion.
18. From the aforesaid facts It is clear ex -- fade there Is no substance In the allegations made In the complain t. The material on record clearly demonstrates these petitioners are as much interested as the respondent-officials In prote cting the environment, forest, the ecology and the tribal people who are living In the forest. In fact, they have spent their entir e life in carrying on these actMtles. They have been instrume ntal In placing relevant material before the Apex Court whic h has resulted In stoppage of mining activities In this region permanently. The facts set out above clearly demonstrates that 20 probably the respondent is unable to realise the importance of the services rendered by these petitioners. She appears to have mistake notion about what they are tying to do. May be she is hurt by the orders of the Apex Court. as well as the committee constituted, who have not shown her actions in the way she executed or wanted. Therefore, she has a grievance against the petitioners as they are behind these adverse orders passed against her. May be these petitioners who have all completely dedicated themselves in these activities belong to a different generation as that of the respondent. They seem to have not given sufficient importance to the respondent. She may be under the impression that because she is a lady, she has not been shown respect that is due to her in spite of her holding a high official position. In fact. the first respondent appeared in person and defended her action. As could be seen from the conduct of the parties. the material on record. I am satisfied it is a case of clash of egos. Both are interested in protecting the environment, forest and the wild life but they are not prep ared to appreciate the effort of others. That appears to be the real 91 reason for these procc-echngs. Fhc responoent young in ag e has 1 t asteo lOxvcr and wanted to show me so pei.nmne rs waat.
she (an do and that is how she has shown special interes t. in seanti, scizu re arid in preparing rn.ahazar, coilcchng information and filing a. seri.es of crhnina.l cases, on almo st alt the provisions nnder the Act to firing home the point that sh.e t also entitled respect from the petItioners. It is clear trorn the material on record that t.hese proceedings a.re not.
init.iated bona fide to prevent any oftbnces nnder the Act or to pnnish fhe offenders who have violated the law, Probabi. it. is motlvate d by vindicthe.ncss. For that. process of law is abused. The Apex Conit in the case of STATE OF HARYANA AND OTHERS vs BHAJAN LAL AND OTHERS [1992 SUPP (1) 5CC 335) h.ad. an occasion. to go in.t.o the ones non in what cafehorics of ca..scs by way oi i Unstration wherein. potvett.itidcr A.rti.cic 48t. of dir. CaPC conld be cxcrci ed ci.tbcr to prevent.
a.bnse oi t.he process ci ao.v Court or othcrv.lsc to s.ccore 1•.hc npd of instcc. thomh ii niay not be pc.ss:i btc to lay 00100 atis p r€.cse, ci earls do ortc s• Plot tinily :tiia mr,1 22 Inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. Further. they have given the following Illustrations:
1) Where the allegations made In the first information report or the complaint, even if they are taken at their face value and accepted In their entirety do not prima fade constitute any offence or make out a case against the accused.
2) Where the allegations In the first information report and other materials. If any, accompanying the FIR do not disclose a cognizable offence, Justifying an investigation by police officers under SectIon 156(1) of the Code except under an order of a Magistrate within the purview of SectIon 155(2) of the Code.
3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected In support of the same do not disclose the commission of any offence and make out a case against the accused. 23
4) Where. the allegations in the FIR do not constitute a cognizabie offence bitt constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under SectIon 155(2) of the Code.
5) Where the allegations made in the FIR or complaint are so absurd and inherently Improbable on the basis of which no prudent person can ever reach a Just conclusion that there is sufficient ground for proceeding against the accused.
6) Where there Is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision In the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7) Where a criminal proceeding Is manifestly attended with mala Me and/or where the proceeding is maliciou sly 24 instituted with an ulterior motive for wreaking veng eance on the accused and with a view to spite him due to
- private and personal grudge.
19. The Apex Court also has also given a note of caution to the effect that the power of qua shing a criminal proceeding should be exercised very sparingly and with circumspection and that too In the rarest of rare cases. That the Court will not be Justified In embarking upo n an enquiry as to the reliablltly or genuineness or otherwise of the allegations made In the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary Juris diction on the Court to act according to its whim or caprice.
20. In my view the present case falls under more than one type of illustration. The petitioners again st whom these complaints and proceedings belbrc the Magistra te Court are Initiated are not forest offenders. The mate rial on record clearly shows as already stated they arc as muc h interested in --
25protecting the forest, environment, wild life, mineral wealth In the forest as much as the respondents who are entrusted with the same responsibility. They are actively involved with the respondents In the forest department tinder various programmes. They have spent their money in the process. They have made documentatlons, they have written articles. They have been recognized. They have been the honoured. They are assisting the Apex Court by furnishing the relevant material in protecting the forest In passing appropriate orders from time to time. They are also assisting the committee constituted in this regard. They are also actively involved in emancipation of the persons living within the forest or inside the forest. Certainly the provisions of the Act are not meant to prosecute them as they have committed no offence under any of the provisions of the Act. As is clear from the allegations made against them they are so absurd and inherently improbable on the basis of which no prudent person can cver reach a Just conclusion that there is sufficient ground for proceeding against the accused. The so called evidence fr 2t.
coHn I tin i
t
'u ppo ol t'i - tilt wrl in-- n sig o I FIR. do nut
Ii )fl a a flhifli%%Slfl I .'flt ftc' tilt. nicc u' I a tist' 14 l'.ISt
'lie i ci sat. 'i'nvr' r'. I'ie proet cln.ç-- i' at 1K iously
iiiituiteul W Lb Li
I '- ti fl '• I 'i.\ kIiL, e'igcaw
" 'r
tht J( ustd with a utw In 1
s
n lc ilu-in. tnck.i Ihesc
4.1 -cIlnlstLnee I' is In the interest i I' prc let lint' lo r-t
(ifl ironn cn
ual t i I nche. ild tile
and the niuw'ral wc alth
lound in the scud nailo'ia
l park. it is flCL 3
esar o Iru e ac tin
eonpcr lioji atict cL%S1Stdfl
.t I in the't
PC Itioncrs 1ht
'thouid lx fr.'e lrocn Ihe'.e 'nalkioizs prc'.tci. ii in Ihe
d ' in_n i ' Vt 'hi '.,e w1l tdtls I , 1 e the r pcratk ii so
iliat their jc h trn.ld i m
t
cccc •'asw i Al ihe ' 'in (at t . ilk
pci) ion is lu't'ld tSv rt.disv
'let ci' iIJ, 1 'k , Mitt a
Tlv_ I' i ik r sj ut ' ii ii hn 1. .
ar £ ntil ed t nsi 'L
I tia p' Lhe" tick .a•' %,"
r sl 'd s xvii ,
.i
4
,l '1'
' c •i.i.tj
ii
) ii i 'iii t ii ..( ,s,t •,tJ ,,, ':1
._
:i'I'. $ i ilL ii. iii. . nd
i '..,\ I I "r.t '
•" •
' i ' I 1' .1
.
Pit
r t tj . .
•, il...i •'f
27
complaint as well as the proceedings of the Magistrate Is made out. Hence. I pass the following order:
(a) Writ Petition Is allowed.
Ib) The complaint and the proceedings before the learned Magistrate are hereby quashed.
Parties to bear their own costs.
Sd!-
JUDGE cld/uJk