Allahabad High Court
Dr. Vishakha Shukla vs State Of U.P. Thru. Prin. Chief Forest ... on 11 April, 2023
Bench: Rajan Roy, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- WRIT - C No. - 1267 of 2023 Petitioner :- Dr. Vishakha Shukla Respondent :- State Of U.P. Thru. Prin. Chief Forest Conservator And Wildlife Warden U.P. Lko. And Others Counsel for Petitioner :- Ankit Pande,Sunil Kumar Yadav Counsel for Respondent :- C.S.C.,Pranav Agarwal Hon'ble Rajan Roy,J.
Hon'ble Manish Kumar,J.
Heard Sri R.S. Pandey, learned Senior Advocate, assisted by Sri Ankit Pande, learned counsel for the petitioner and learned Standing Standing Counsel appearing on behalf of opposite party nos. 1 & 2 and Sri Pranav Agarwal, learned counsel for opposite party no. 3.
The impugned order dated 19.01.2022 has been passed in pursuance of an order dated 23.09.2022 passed in S.B. Criminal Misc (Pet.) No. 3723/2022 titled as Assistant Conservator of Forest, Department of Forest, Government of Rajasthan, District Dungarpur vs. State of Rajasthan and Ors. The elephant in question named Rupa was being taken by the Mahawat of Opposite party no. 3, as alleged, illegally, therefore, it was apprehended and criminal proceedings were initiated. Based on the aforesaid, criminal trial is pending before the C.J.M, Dungarpur, Rajasthan.
At this stage, it is submitted that a complaint case has been filed in this regard under the Wildlife Protection Act, 1972. While the complaint proceedings were pending, petition under Section 482 Cr.P.C. was filed by the Assistant Conservator of Forest, Department of Forest, Government of Rajasthan, Dungarpur challenging an order dated 10.12.2021 by which the trial court had granted custody of the elephant to opposite party no. 3. In these proceedings under Section 482 Cr.P.C., the Rajasthan High Court, Jodhpur Bench passed an order on 23.09.2022, on the following terms:-
"1. The matter comes up on board for consideration of the application filed by the petitioner-State for issuance of appropriate direction qua clause B of the prayer clause, in view of the order dated 24.06.2022, passed by coordinate Bench of this Court.
2. Without getting into the detail facts which are not germane for the present application, suffice it to mention that pursuant to letter dated 13.12.2021, the petitioner Assistant Conservator Of Forest, Department Of Forest, Goverment Of Rajasthan, Dungarpur intercepted an elephant which was with respondent No.2, who claims to have a duly executed power of attorney in his favour from one Billu Khan (owner of the elephant) and in whose favour an ownership certificate No.1849, dated 21.07.2005 was issued by the competent authority.
3. After interception and seizure, the elephant in question is lying with the petitioner since 21.11.2021.
4. The petitioner has moved the present application to handover the elephant to the Elephant Conservation Care Centre & Hospital, Mathura, Uttar Pradesh.
5. Mr Digvijay Singh Jasol, learned counsel for the petitioner submitted that for last 9 months, the elephant is lying in the custody the petitioner, who is finding it difficult to maintain it for want of requisite resources and expertise.
6. Mr. Khan learned counsel for the respondent No.2 on the other hand requested that the elephant be sent to Radhe Krishna Temple Elephant Welfare Trust Jamnagar.
7. Neither petitioner's counsel nor the counsel for the respondent No.2 is able to apprise the Court as to whether any proceeding has been initiated by the Chief Wildlife Warden, Lucknow, Uttar Pradesh (hereinafter referred to as "the authority") qua the elephant in question.
8. Considering that the welfare of the elephant is at peril, this Court deems it appropriate to direct respondent No.2 to file a representation before the authority at Uttar Pradesh within a period of one week from today along with all requisite documents and a copy of the order instant.
9. On receipt of the representation, the authority at Uttar Pradesh shall examine the representation and if needed shall visit the elephant at Dungarpur within a period of 15 days from the receipt of representation and inquire about the allegations levelled and facts mentioned in the letter dated 13.12.2021 written by the officer In-charge of the Forest Department, Hamirpur.
10. On the inquiry being conducted, if he finds that the elephant In question was being legally carried by the respondent No.2, he shall issue specific order permitting the respondent No.2 to take the elephant in accordance with law.
11. In case he finds that the elephant in question was not being carried by the respondent No.2 in accordance with law, he shall pass a reasoned order and send it to this Court while sending a copy of the same to the petitioner.
12. List this case on 04.11.2022, as prayed.
13. It will be required of Mr. Jasol to send a copy of this order to the authority at Uttar Pradesh."
In compliance of the aforesaid, the impugned order has been passed by the Forest Officials of Uttar Pradesh by which the custody of the said elephant (Rupa) has been ordered to be handed over either to Sri Radhe Krishna Temple Elephant Welfare Trust, Moti khavdi, Jamnagar, Gujarat or to Sri Azad, opposite party no. 3 herein.
Contention of the petitioner's counsel is that in fact, elephant (Rupa) had already died in the year 2010 itself and it had a microchip on its body bearing no. 0006592129. The said chip, as alleged by the petitioner has been taken out by the opposite party no. 3 and implanted in another elephant namely Dhanwati. It is said that earlier an enquiry was conducted by the Forest Department of U.P. and the aforesaid fact was detected and the trial court was also informed.
It is said that after passing of the order dated 10.12.2021, some reports have been filed before the C.J.M, according to which the elephant which was seized is not Rupa but another elephant.
It is informed by the petitioner's counsel that an intervention application has been filed by the petitioner under Section 482 Cr.P.C. proceedings pending before the Rajasthan High Court, Jodhpur Bench, as referred earlier.
Be that as it may, the impugned order has been passed in furtherance of the order passed by the Rajasthan High Court, Jodhpur Bench, as referred hereinabove. Whether the elephant in question is Rupa or Dhanwati and whether the microchip on its body is that of Rupa or some other microchip, are all questions of fact which will have to be seen by the concerned authorities or by the prosecution or for that matter, the trial court or the High Court of Rajasthan under Section 482 Cr.P.C. as far as it may be permissible in law. There is no way that this Court would intervene in the matter when proceedings are pending, as aforesaid before the trial court in Rajasthan or before the Rajasthan High Court, Jodhpur Bench.
All these facts may be apprised by the Forest Department of U.P. to the Rajasthan High Court, Jodhpur Bench in the aforesaid proceedings, if they are correct, that is, according to them, if the elephant is Dhanwati and not Rupa and the microchip on the body of Dhanwati is that of Rupa, who has already died or they may inform the trial court in this regard.
Petitioner is also at liberty to apprise the facts within its knowledge to the concerned authorities and to the trial court or the Rajasthan High Court in the aforesaid proceedings, as far as it may be permissible in law.
As prayed by the petitioner's counsel, he may approach the Principal Chief Conservator of Forest, U.P. also apprising him of the aforesaid fact with necessary proof, who may do the needful but only as per law.
The writ petition is disposed of, in the aforesaid terms.
Order Date :- 11.4.2023 Nitesh