Kerala High Court
1. Shaju Paul vs 1. State Of Kerala Represented By Public ... on 22 February, 2022
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 22ND DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943
CRL.MC NO. 527 OF 2022
(AGAINST OR 3/19 OF SOCIAL FORESTRY RANGE ERNAKULAM NOW PENDING
AS C.C.85/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-III, PERUMBAVOOR)
PETITIONERS/ACCUSED:
1 SHAJU PAUL,
S/O PAULOSE, VADAKKUMCHERI HOUSE, MELOOR P O,
MOOZHIKKADAVU, CHALAKKUDI, PIN 680 307.,
2 ANEESH
AGED 31 YEARS,
S/O CHANDRAN, THACHAKKOORA VEEDU, VATTANATHARA P O,
THRISSUR 680 302.
3 VISHNUPRABHA K P,
AGED 24 YEARS,
S/O PRABHAKARAN, KIZHAKKOOT VEEDU, PARAPPOOKKARA,
PALLOM, THRISSUR- 679 532.
4 RATHEESH. P
AGED 38 YEARS,
S/O MURALEEDHARAN, PARANGODATH HOUSE, ALAKAPPANAGAR,
AMBALLOOR- 680 302.
BY ADVS.SRI.NIRMAL.S
SMT.VEENA HARI
SMT.RIA ELIZABETH JOSEPH
SMT.IRENE ELZA SOJI
SMT.K. REMIYA RAMACHANDRAN
CRL.MC NO. 527 OF 2022
2
RESPONDENTS/STATE:
1 STATE OF KERALA REPRESENTED BY PUBLIC
PROSECUTOR,
HIGH COURT OF KERALA- 682 031.
2 THE RANGE FOREST OFFICER,
SOCIAL FORESTRY RANGE ERNAKULAM, REPRESENTED
BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA - 682 031.
BY PUBLIC PROSECUTOR SRI SANAL P RAJ
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 22.02.2022, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 527 OF 2022
3
'CR'
ORDER
The petitioners are accused in O.R. No.3/2019 of Social Forestry Range, Ernakulam registered for offences punishable under Sections 9 and 51 of the Wild Life (Protection) Act 1972 (for short 'the Act') and Rule 9 of the Kerala Captive Elephant (Management & Maintenance) Rules 2012 (for short, 'the Rules') r/w Section 64 of the Act. Certified copy of the FIR laid in O.R.No.3/2019 is produced alongwith as Annexure A1. The final report laid in O.R.No.3/2019 is taken cognizance of by Judicial First Class Magistrate Court -III, Perumbavoor and C.C. No.85/2020 was registered on its file.
2. The driver of the vehicle used for transportation of the captive elephant, it's 1st and 2nd mahouts and the owner of the elephant were arrayed respectively as accused Nos. 1 to 4 in CC No.85/2020.
CRL.MC NO. 527 OF 2022 4
3. The allegation of the prosecution was that on 14.04.2019, after boarding a captive elephant in a lorry bearing Registration No. KL-08-C-7677, for transporting it to it's habitat, due to careless and negligent driving of the vehicle into the premises of a petrol pump situated at Tripunithura, the forehead of the elephant touched at the roof of the petrol pump and thereby it sustained injuries. In the context, the accused was alleged as committed the offences for which the crime stands registered against him and final report stands laid against him.
4. The vehicle was taken into custody from the property belonging to one Mr.Surendran at Amballoor, Thrissur. A scene mahazar was also prepared, certified copy of which is produced alongwith as Annexure A2. Accused 1 to 4 had given statements before the investigating officer and those given by them are produced alongwith respectively as Annexures A3 to A6. CRL.MC NO. 527 OF 2022 5
5. It was urged by Sri. Nirmal. S., the learned counsel that the offences for which the petitioners were arrayed as accused will not be attracted prima facie from the allegations. According to him, primarily, the offence alleged as committed by petitioners is one under Section 9 of the Act which provides that a person shall not hunt any wild animal specified in Schedules I, II, III and IV except as provided in Sections 11 and 12 or in other words, what is drawn from the provision was that hunting of a wild animal can only be in accordance with Section 11 and 12 of the Act. According to the learned counsel, the petitioners have not violated Section 48(A) of the Act or Rule 9 of the Rules. The petitioners have also complied with the duties and responsibilities under Rule 8 of the Rules. It was contended that the ingredients of the offences alleged against the petitioners are prima facie attracted from the allegations. It was canvassed by the learned counsel that the continuation of the prosecution against the petitioners on the basis of the final report (Annexure A1) would only be an abuse of the process of court. CRL.MC NO. 527 OF 2022 6
6. The learned Public Prosecutor was directed to obtain instructions from the Investigating Officer and to file a report in the matter. A report is found filed as directed. In the report it was stated that the statements of accused 1 to 4 and the description in scene mahazar, indicate that elephant was badly injured due to negligence of the lorry driver and the mahouts accompanying it. On the basis it was contended by the learned Public Prosecutor that proper precautions were not taken by the owner of the elephant, while transporting it in the vehicle.
7. Section 9 of the Act prohibits hunting. Therefore, it is relevant to have an idea of the definitions of hunting as found under Sub-section (16) of Section 2 of the Act.
"2(16)"hunting", with its grammatical variations and cognate expressions, includes,-- 16[(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;] CRL.MC NO. 527 OF 2022 7
(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;"
8. The offences alleged against the petitioners being one punishable under Section 9 read with Section 51 of the Act, it is apposite to extract Section 9 hereunder:
Section 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.] Thus under Section 9 hunting of all wild animals i.e. listed in Schedules I to IV except as permitted under Sections 11 and 12 are prohibited. Therefore, under Section 9 of the Act hunting for the purposes enumerated under Section 11 in accordance with the procedure under Section 12 of the Act, is permissible.
9. Sections 11 and 12 are also apposite extraction hereunder.
"11. Hunting of wild animals to be permitted in certain cases.--(1) Notwithstanding anything CRL.MC NO. 527 OF 2022 8 contained in any other law for the time being in force and subject to the provisions of Chapter IV
(a) the Chief Wild Life Warden may, if he is satisfied that any wild animal specified in Schedule I has become dangerous to human life or is so disabled or diseased as to be beyond recovery, by order in writing and stating the reasons therefor, permit any person to hunt such animal or cause such animal to be hunted:
[Provided that no wild animal shall be ordered to be killed unless the Chief Wild Life Warden is satisfied that such animal cannot be captured, transquilised or translocated:
Provided further that no such captured animal shall be kept in captivity unless the Chief Wild Life Warden is satisfied that such animal cannot be rehabilitated in the wild and the reasons for the same are recorded in writing.
Explanation.--For the purposes of clause (a), the process of capture or translocation, as the case may be, of such animal shall be made in such manner as to cause minimum trauma to the said animal];
(b) the Chief Wild Life Warden or the authorised officer may, if he is satisfied that any wild animal specified in Schedule II, Schedule III, or Schedule IV, has become dangerous to human life or to property (including standing crops on any land) or is so disabled or diseased as to be beyond recovery, by order in writing and stating the reasons therefor, permit any person to hunt [such animal or group of animals in a specified area or cause such animal or group of animals in that specified area to be hunted]. (2) The killing or wounding in good faith of any wild animal in defence of oneself or of any other person shall not be an offence:
Provided that nothing in this sub-section shall CRL.MC NO. 527 OF 2022 9 exonerate any person who, when such defence becomes necessary, was committing any act in contravention of any provision of this Act or any rule or order made thereunder.
(3) Any wild animal killed or wounded in defence of any person shall be Government property."
"12. Grant of permit for special purposes.-- Notwithstanding anything contained elsewhere in this Act, it shall be lawful for the Chief Wild Life Warden, to grant 48[***] a permit, by an order in writing stating the reasons therefor, to any person, on payment of such fee as may be prescribed, which shall entitle the holder of such permit to hunt subject to such conditions as may be specified therein, any wild animal specified in such permit, for the purpose of,
(a) education;
2[(b) scientific research;
(bb) scientific management. Explanation.--For the purposes of clause (bb), the expression, "Scientific Management" means--
(i) translocation of any wild animal to an alternative suitable habitat; or
(ii) population management of wild life without killing or poisoning or destroying any wild animals;] 3[(c) collection of specimens--
(i) for recognised zoos subject to the permission under section 38-I; or
(ii) for museums and similar institutions;
(d) derivation, collection or preparation of snake-
venom for the manufacture of life-saving drugs:] [Provided that no such permit shall be granted
(a) in respect of any wild animal specified in Schedule I, except with the previous permission of CRL.MC NO. 527 OF 2022 10 the Central Government, and
(b) in respect of any other wild animal, except with the previous permission of the State Government.]"
Section 51 of the Act provides for penalties for contravention of provisions or rules or orders made thereunder or breach of any of the conditions guaranteed under the Act.
10. From a conjoint reading of all provisions extracted above it has come out that injuring a wild animal is inclusive under the word 'hunting' and Section 9 speaks about prohibitions on hunting. It says that a person shall hunt a wild animal only in accordance with Sections 11 and 12 of the Act. Section 11 provides that if a wild animal specified in Schedule I has become dangerous to human life or is disabled or deceased beyond recovery, Chief Wild Life Warden may, on being satisfied, shall permit a person to hunt such animal or cause such animal to be hunted.
CRL.MC NO. 527 OF 2022 11
11. For killing a wild life animal, the Chief Wild Life Warden shall be satisfied that the animal cannot be captured, transquilised or translocated and such animal shall be kept in captivity only on a certificate being issued by the Chief Wild Life Warden that it cannot be rehabilitated in the wild, and on recording reasons in writing for doing so. Section 12 speaks about grant of permit for hunting a wild animal on payment of fees as may be prescribed by the Chief Wild Life Warden for the purposes of education, scientific research and scientific management.
12. It is contemplated under Section 9 of the Act that hunting of a wild animal can only be in accordance with Sections 11 and 12 of the Act. Under sub-section (16) of Section 2 of the Act hunting will take within its purview injuring a wild animal also.
13. The word hunting defined under Sub Section (16) of Section 2 of the Act is inclusive of killing or poisoning any wild animal or captive animal, capturing, coursing, snaring, trapping, CRL.MC NO. 527 OF 2022 12 driving or baiting any wild or captive animal, injuring or destroying or taking any part of the body of any such animal and every attempt to do as above. All the inclusive terms under Sub Section (16) of Section 2 of the Act can be taken to have an element of intention behind it's commission. For the acts enumerated above to amount to a penal action, mens rea is an essential element. Therefore, if something of the nature included under the term "hunting" has been done by a person without mens rea, the punishment cannot be imposed under Section 51 of the Act.
14. Rule 9 of the Rules provides norms for transporting wild or captive animals. Twenty seven safe guards have been provided under Rule 9 of the Rules while transporting wild or captive animal. The prosecution in the case on hand has not raised a case that any of the above norms are violated by the petitioners while being engaged in the transportation of elephant to it's habitat. Therefore, it can be inferred that the petitioners had taken all measures to safeguard CRL.MC NO. 527 OF 2022 13 proper transport of the animal to its destination.
15. The allegation of the prosecution was that the petitioners by inflicting injury on the forehead of the elephant has committed an act of hunting. For coming within the definition of hunting, the act of causing injury must be an intentional and willful one. In the case on hand, as per the allegations itself, it is clear that when the vehicle boarding the elephant was moved in reverse direction the forehead of the elephant hit on the roof of a petrol pump and thereby an injury was caused on the forehead of the elephant. Immediately the service of an Assistant Forest Veterinary Officer was availed by the petitioners and it is reported in the certificate issued after examination of the elephant that a piercing would of 2 cm depth was caused on its forehead. As part of treatment, a tetanus injection was advised and provided. Therefore, the incident whereby the elephant had sustained a minor injury can only be said to be an accidental and involuntary one. In view of the discussion, neither the offence CRL.MC NO. 527 OF 2022 14 under Section 9 of the Act nor offences under various other provisions of the Act can be said to have been attracted against the petitioners in the context on hand.
In the result, the petition on hand is allowed. C.C. No. 85/2020 pending on the files of Judicial First Class Magistrate Court-III, Perumbavoor and all proceedings initiated pursuant to that are quashed.
Sd/-
MARY JOSEPH JUDGE al/-.
CRL.MC NO. 527 OF 2022 15 APPENDIX OF CRL.MC 527/2022 PETITIONER'S ANNEXURES: ANNEXURE A1 CERTIFIED COPY OF THE FOREST OFFENCE CHARGE SHEET IN O.R.3/2019, SOCIAL FORESTRY RANGE, ERNAKULAM ANNEXURE A2 CERTIFIED COPY OF THE SCENE MAHAZAR DATED 17/04/2019 ANNEXURE A3 TRUE COPY OF THE STATEMENT OF THE 1ST PETITIONER/1ST ACCUSED ANNEXURE A4 TRUE COPY OF THE STATEMENT OF THE 2ND PETITIONER/2ND ACCUSED ANNEXURE A5 TRUE COPY OF THE STATEMENT OF THE 3RD PETITIONER/3RD ACCUSED ANNEXURE A6 TRUE COPY OF THE STATEMENT OF THE 4TH PETITIONER/ 4TH ACCUSED RESPONDENTS' ANNEXURES: NIL TRUE COPY PS TO JUDGE