Karnataka High Court
Niren Jain vs Anita Arekal on 12 August, 2011
Author: N.Kumar
Bench: N Kumar
1
I.N THE HIGH COURT OF IRNATAKA AT BANGALORE
Da.ted this the I 2 day oi Au.€ust., 2011
I3EEORE
THE HONBLE MR. JUSTICE N KUMAR
Writ Petition No. 1.348 of 200EJQ
BETWEEN:
Mr. Niren Jam
Aged about. 30 years
S/o 77K. Join
No3. Raihna Anartnn.' Fits
han ri
ivlangalore 575 002 -
-- S 1lo \ '4
Aged about 33 years
•S/o RH Mahendra
No,5, Saukey Road
H igh Greunds
Bangalore
3. Sri Ruhit Rae::.
uSed 00001 35, veaiu
N ' "
ibarva. I\ocnai r.
i.it.h.t.i 110SF!
1
OCjci.1
(J5H.
iblarnrivre /
4. Sri M. Ham Mohan Rio
Aged about 65 years.
2
Sb Sri lvi. Sadash.iva Rao
Court 11111. Cross Road
i-5it ur 571 2.0 1 (ilvK.) Pet Clot ters
(By •Sri l3V. Aeharva. Senior A.dvoeate •for
71/s. I bun B hour, Acvocatesj
AND:
I Smt. An Ha Areical
Deputy Cousenator of Forest.
Kuclremui._h bdld Life Division
1'.
Aai amt 1
2, State of Karnataka
Repre serired Cv its
Prireipai Secretary
Forest, Ecology and Euviroumeut
Multistoried Buildiug Phase-Il
Dr. Ambedkar Veedhi
f3auga.lore 560 001
--
,Respoudeuts
(By Sri KM. Shivavoqisxvamv. i-1CCP fdr RB:
ki s;ervedj
This Wri.t Petition is filed under Articles 22.6 ar
d 227 of
1
the Consttutiou of India, o ravinq to quash me COfililmut dated
21-12-2004 i led by the I .si. respondent before the Court of the
Addition.al Civil Judge aud J.MFC, Karkala aud the order of t.he
I
HC (4 'c
J r
0 ct, 2 _. 2ui 4 ird', t/ 1k
1
,,1 3 U 1q43 1
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aud issu lug process (Anuexure-G and H).
This Writ Petition c InUric on for hcarh this riav iCe
Cou.rt made I/h following:
3
ORDER
The petitioners have challenged in this Writ Petition the complaint dated 24.12.2004 filed by the first respondent before the Court of Judicial Magistrate. 1 Class. Karkala and the order of the learned Magistrate in C.C. No. 2170/2004 dated 24.12.2004 takIng cognizance of the complaint and Issuing process.
2. The first respondent has filed a complaint before the jurisdictional Magistrate complaining that the petitioners have contravened Sections 3. 5. 15. 18 and 19 of the permit which reads as under: -
Condition Clause
No.
3 They should specify the number of representatives
if any Including themselves and obtain pennisslon :
of the concerned Deputy Conservator of Forests before_entering the_forest 5 A copy of the research finding should be madej available to the Forest Department/Wildlife Wing free of cost 15 They should enter Into an agreement with the 4 ecu icci n ci Dep nly Cvnservnoi oltoiestsor olhei olhcer authonst d bt him iS They must inibrm the Deputy Conservator of I iet thout i 'cr ' 0 1 (1 fl c_ a 1w r I ai lu5t neu C a O n ii I T lit I ..___ a(of)upan_ttiem_dur.ingnpir field zI.tits 19 Th,e must submit a copy of the'ir research/academic/Study Report work carDed out in Kudremukh Natienal Park._____ BACKGROUND OF THE CASE 3, Kudremuk,h National Park is the largest wildlife reserve of tropical wet everUreen lorests in the Western Chats which are recognized as one of the 25 biodiversity hotspots in the entire world, ]Sie Park is the source of three .major rivers (Bhad ra. lvi air. and Neth ravathii and harbors several speeies of endangered animals such as tiger, leopard, wild deg, gaur, lioat.aiied maeaoue horn.hilis and kitty eoora. Beerctme of its L'joiocaeai wekih and Invariance as a vater eatehmerit, (he area was notified a.s a t.at,ionai park excluding revenu.e villages, att:a lanDs, it tenne lands, itomal lands. vanc us ncints of war, etc. whirls are in ihe s 1 a-h Tue pet a.ioners have been eleseiv involved with. i.ts eonservat,lon park over the years. One majr 5 conservation initiative undertaken by the Government of Karnataka was the Karnataka Tiger Conservation Project.
Under this project the petitioners organisation provided 15 four wheel drive jeeps. 2 high speed patrol boats. around 60 wireless sets. more than 1700 field kits and insurance policies for frontline l)rotedUoI stair 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 activities and document these activities. Letters of appreciation from the Chief Wildlife Warden/DCF, Kudremukh are produced.
4. In the report submitted It was stated that Community Leadership for Tiger Conservation primarily aimed at generating local community support for tiger conservation, promoting long-term habitat consolidation through voluntary resettlement/land acquisitions and continued efforts at tiger conservation including activities in collaboration with the Ibrest deparl ment with Us goals would be implemented at 6 Kudremukh and other sites. After completion of Tiger Conservation Project, another project titled Community Leadership for Tiger Conservation was Initiated in Kudremukh by Kudremukh 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 wildlife 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 actMties did 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 dot ic S nod these actvitics WC PC carrlcli 001 \vittI the iiwoivcmeot 01 local odicial s. The oct il.ioocrs wcrc also tnvotven in proaadcrig uniforms and Held kits, ctc., to staff under the banner of t.he CLTC projee.t v.rith official approval. All these project activi.ties were carried out xx ith full knowledge of local officials and in association with them is clearly shown by numerous photographs and correspondences including invitahons and appreciation letters from officials, Under the CL•TC Project, the also interacted with local people living' inside the revenue enclosures locate d. h the Kudremukh area, hut. were outside the boundaries of the national park, cisirig pubhc rights of ways. I these cwtlvltjec were well known to thc ibres.t statf c'ihcials who somctimcs; even acconmariicd thcm ir tIxese Interactions. Further irc thc case of a lcw [flJ" tarn ilics wno [cad encroached on torcst iancl in C Ut1' c ( r r ,T , I c,' I
1)111)1 ui.Yr0 W,c 1 8
5. in addition to implementing CLTC project. purely out of their concern for wildlife conservation, petitioners have been lighting for the cause of wildlife conservation In Karnataka, associated with various other conservation advocacy groups. These groups have been squarely confronting vested interests and combating pressures that are inimical to wildlife consenratlon. The NGO Wildlife First' based at Bangalore with which petitioners are associated has been engaged In consenration battles against vested interests and lobbies connected with activities such as timber exploitation and mining in protected areas.
6. 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 Hon'ble Supreme Court. This evidence included findings from a scientific study involving petitioners with permissions from the Water Resources Department 4--..
9Government 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 study results highlighted the massive soil erosion, sedimentation and siltation problems caused In the Bhadra river system by the mining operations.
7. 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, blodiversity and rural livelihoods for the purpose of educating the public. The educational video titled "Mindless Mining" was formally 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 Hon'ble Supreme Court as far back as the year 2001. hz 10
8. The Hon'ble 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. Thereafter, the petitioners have been persistently following up the matter with the forest .epartment 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 Honbie Supreme Court. The then DCF, Kudremukh Wildlife DMsion had also written to the Government in March 2003 urging it to include the above area In the national park.
9. DurIng February 2000. pile transporting iron-ore slurry broke and severely damaged rain forests. At that time the then DCF had recovered a heavy fine of 10 lakh rupees from the mining company. However, after the first respondent took over as DCF in July 2003. when a similar instance of ecological damage occurred during June 2003. the Incumbent DCF. did not take similar action as rcquired under the Act. She has totally failed to pursue the matter with necessary 11 urgency, thus potentially endangering the park from the ravages of continued mining and Indirectly benefitting the mining activities.
10. A perusal of the said complaint discloses that the first petitioner was granted permit on 19.7.2002 for the period from 20.7.2002 to 19.7.2003. A copy of the said permit is at Annexure-K. During the said period the first respondent was no where near the park. She took charge as Deputy Conservator of Forests In July 2003. The complaint is ed on 21.12.2004. All the violations pointed out are for the period prior to taking charge. The person in charge of the park during the said period dId not take any action for non-compliance of the said conditions. A perusal of the aforesaid conditions show that the first petitioner did not specify the number of representatives to accompany him Inside the forest. They should Inform the Deputy Conservator of Forests about the day to day programme so that arrangement may be made for someone during their field visits. The photographs produced in '-V '4.
12
this case show that the persons who enter the forest along with the ilrst petitioner and further it shows that the ofikials accompanied them. If the same is not reduced into writing a person who look charge cannot have any grievance nearly after one year after the expity of the permit period. What is to be furnished to the department is the research finding and not the expenses incurred in the said research which was rejected by the first petitioner rightly. Clause 15 provides ibr an agreement being entered into between the Deputy Conservator of Forests and the permit holder. In fact the permit which is produced at Annexure-K contains all the terms and conditions which form part of the venj contract and during that period no separate contract was entered into between the parties. By the time a circular was issued for entering into park, the time of the permit was over and, therefore, the first petitioner did not enter into any such contract. The first respondent has submitted the report showing the research conducted by them and. therefore. it is contended none of the terms of the permit were In effect contravened. Therefore, the complaint filed lacks 13 bona licks and is filed 'nih 1 mala fide Intention ts t Ileg d Ii the XViii Petition.
ii. A peru'al of the charge sheet filed dearly demonstrates that. tinder the gui'c of accusing these petItloner of violating the aforcsId clause what has been illepcd Is vicla I n ci Idi t provi'lons tad cede 'b these o ganzat ons of lnch these pctltiontrs ate member.
The Director. Community Leaderslup for Tiger Conservation Project being executed as collaboration In Kudremukh Nati onal Park by Kudremukh Wildlife Fou idatlon Scc rnd project Is 'cnmt iy fldrhp Ir fige Ccieat n Projet being aa Ci t ttsimbcuauon lii z3nadia vncLifv Sanctuary oy Bhadra Vildlife Con,ervatlon rrust The hrd ptject, communIty leadership for Tiger ronn'atwn Pro' ec t being executed as cli loritot ii ktg*rlole (Rap CidIr I ra uk a ' a At c,l splaicnfccThl il., (liFt) and NE ctaistl 1e ll.lhfc Con'enation Id ication Proje'.I (NAWT' CIA):. lht-rek re. It 1% Ic ar ibat it ese 'me projet Is ae' 'a 14 undertakun by three ndcpeiidera orainzatton. Clause 6) referred to supra casts an obligation n the petitioner to i tform he tinder gned if t is condu ting/ tending to cc ndu an other act wtie n Kirnat ika or anx a i ities ni rest of India or any aeti nnes hi ad The petiti ncr org tnisat n is not ondueting he tic esaid threc pr jeet The said th e projects are conducted by three independent organisahons, Therefore. on the face of it the violation complained of is incorrect, I 2. in fa )it the applicatic n 1 ttic tiers iled by these pe t efore the mr it e constitnte 1 cx Court n n (for n ra theA I n na powe an be 28 4 2004 at tht Dcp rx'itor of F made disparaging remarks ott the body constituted hx the 4prx ( oitrt. vtoiated the or rs passed bx such authorilt. t d mntLa c ihc'e legal proececting against the pci ii loners in rein IP %itC of atm ordt r t stat being granted itt tan he proeccdtras s'umdjmt 15 to be initiated by her against the members of the committe was quashed by the Hon'ble Supreme Court on coming to know of the same. In fact they have observed in the said order that, the role of NGUs in protecUon of forest and wildlife has been recognised in Chapter WA as one of the fundamental duties in the Constitution of India. Article 5lA (g) specifically states that it shall be the duty of every citizen to protect and improve the natural environment including forests, 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 tUe 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 para (ii) of para 2 provides that any person can approach the CEC in case any of the orders passed by the Hon'ble supreme Court in the iórest matter are perceived to have been violated. Suffice to say that the NGOs I. d I i C CS)! I t )I1 r 1-
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Shit itur nlsir a iqu d Ithi
cltmcdb al ictnd 13 Id lic 'IC Os a e twa. ci
it C tic p bI i i t ci id 1ea on ,)i
i ttc nd stolcC ur I xatt c. ' ci' cf It
cU, re uec hi's he )e)11 r lcd r qet re
)I elm hcC C Cf ft ccb C
C I t S I iaak
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Cc I
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17
CECs order dated 28.4.2004 and
for making derogatory
comments against the CEC and its mem
bers.
13. Therefore, in substance the complai nt is these petitioners have contravened clause (6) of the order under Section 28 of the Act. Clause 6 reads as under: -
6. The applicant organIsatlon has to Info rm the unders(gned It Is conducting/intending to conduct (I) any other activities In Karnataka (IV any activities In rest of India (lii) any activities abroad This Information Is intended to ensure that sufficient lime and focus Is given to this project by the applicant organisatlon.
14. From the aforesaid facts it is clea r ex -- fade there is no substance in the allegations mad e in the complaint. The material on record clearly demonstrates these petitioners are as much interested as the respondent-offi cials in protecting the 'V 18 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 activities. 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 probably the respondent Is unable to realise the Importanc e of the services rendered by these petitioners. She appears to have mistake notIon about what they are trying to do. May be she Is hurt by the orders of the Apex Court as well as the com mittee constituted, who have not shown her actions in the way she executed or wanted. Therefore, she has a grievance again st the petitioners as they are behind these adverse orders passed against her. May be these petitioners who have all com pletely 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 hold ing a 19 riulholneial j)OSitlOil. in tact. the 11551 resnoid cia appeared in person and del.endcci. her ac.'tiorì As Could be seen from the condnet of. t.he parhes, th.e material on ree.ord. I am •sahsiled it is a ease of elasfl of emlos. Both are interested in protecnng I he •wiro nment. threst and. t.h.e wild life bnt th.ev are not prepared to appreeiat.e the effort of et.hers. •That appears to he the remd reason br rhese proceedinus. The respondent voun9 in age has tasted power and wanted to show these petitioners what she ca.n. do and that is has s.hown special in.terest in search, seizure and in prepaninm rnahazar. cohecljnmt informa..tion and filing a series of criminal eases. on almost all t.he. provtsiorts under the Act to h nun •homc t.hc noint that she is aso caChed rcsncct from the netitoriers it is clear from I he material on record that these proceedings are not initiated hona ilde. to pre'crit. ann ollcuecs 110dm the Act or to pnoz.is.h 1-.
1 I-..--.-,- I..-... F) ,-i---.
t ' motivated By vindi.ctiven.es:s, For th.at, process of law is abused The Acm Court in the case of STATE OF IbRYAiA
AND OTHERS n's BBAJAN LAB AND OTHERS [1992 SUPP (1) 20 SC 3351 had an occasion to go into the question in what categories of cases by way of illustration wherein power under Article 482 of the Cr.PC could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and 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:
I) 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 facie 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, Justifing an investigation by police omcers under Section 156(1) of the Code except 21 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.
4) Where, the allegations In the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no Investigation is pennitted 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 I he 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 22 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 tide and/or where the proceeding Is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
15. The Apex Court also has also given a note of caution to the effect that the power of quashing 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 upon an enquiry as to the rellablltiy or genuineness or otherwise of the allegations made In the FIR or the complaint and that the extraordinary or Inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 23
16. In my view the present case falls tinder more than one type of illustration. The petitioners against whom these complaints and proceedings before the Magistrate Court are Initiated are not forest offenders. The material on record clearly shows as already stated they are as much interested in protecting 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 under various programmes. They have spent their money In the process. They have made documentations, 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 tkne to time. They arc 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 tinder any 24 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 ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The so called evidence collected In support of the allegations. In support of FIR. do not show any commission of offence and make out a case against the accused. However, the proceedings Is maliciously instituted with the ulterior motive of wrecking vengeance on the accused with a view to spite them. Under these circumstances, It Is In the interest of protecting forest. environment, water bodies. wild life and the mineral wealth found In the said national park. It Is necessary to have active cooperation and assistance from these petitioners. They should be free from these malicious prosecution. The department would be well advised to have their cooperation so that their job would become easier. At the same time, the petitioners should also realise these officials hold a position. They have all respectability and they also are entitled to respect 1- 25 for the post they hold. I am sure both sides will see these aspects In a right perspective, cooperate with each other and protect the national wealth, instead of wasting their time and energy In fighting this frivolous litigation. In that view of the matter. in the facts of the case, a case for quashing of the complaint as well as the proceedings of the Magistrate is made out. Hence, I pass the following order:
(a) Writ Petittnn Is allowed.
(b) The complaint and the proceedings before the learned Magistrate are hereby quashed.
Parties to bear their own costs.
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