Karnataka High Court
State By Rural Police Chinthamani vs Ramakrishna Reddy S/O Ramareddy on 29 May, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED ThIS THE TH
29
DAY OF MAY 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRIMINAL APPEAL No.2313/2006
BETWEEN
STATE BY RURAL POLICE
CHINTHAMANI ... APPELLANT
(BY SRLRAJA SUBRAMANYA BHAT, HCGP.)
AND
1. RAMAKRISHNA REDDY Sf0 RAMAREDDY
AGED ABOUT 54 YEARS
KORAKONAPPALI
MURUGAMALLA HOBLI
CHINTHAMANI TALUK
2. RAMAPPA 5/0 VENKATAPPA
45 YEARS
BODAGUNDLAHALLI
CHINTHAMANI TALUK
3. NARASIMHAPPA
5/0 VENKATAPPA
40 YEARS
BODAGUN DLAHALLI
CHINTAMANI TALUK
4. RATHNAPPA 5/0 RAMAPPA
30 YEARS
BODAGUNDLA HALLI
CHINTHAMANI TAWK ... RESPONDENTS
(BY SRI. S SHANKARAPPA, ADV. FOR Ri;
M/S.APPI REDDY & ASSOCIATES, ADV. FOR
R2 TO R4 ABSENT)
CRLA. FILED U/S.378(i)&(3) CR.P.C BY THE STATE P.P.
FOR THE STATE PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT DL2S.3.06 PASSED BY THE PRL.CIVIL JUDGE
(JR.DN.) & JMFC., CHINTHAMANI, IN CRL.MISC.NO186/06 AND
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE
P/U/S.9, 39, 40, 44, 49(B)(C) OF WILD LIFE (PROTECTION ACT,
1972 AND U/S.379 OF IPC.
THIS CRL.A. COMING ON FOR DICTATING ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State is in appeal against acquittal of the respondents for offence punishable under Sections 9, 39, 40, 44, 49(b) and (c) of the Wild Life Protection Act, 1972 as also under Section 379 of the IPC.
2. Heard learned HCGP Sri.Raja Subramanya Bhat for the appellant/State and Sri.S.Shankarappa for the respondents/accused.
3. From what the learned counsel have adverted to and the records made available, it is seen that Dy.SP. Mohan Reddy received credible information that a person was transporting skin (hide) of deer and horns of animals in 3 contravention of the provisions of the Wild Ufe Protection Act, 1972. He directed PW1-Chlkkegowda, PSI deputed to the Forest Department in the wild life cell to investigate. Under such Instructions, PW1-Chlkkegowda (PSI) constituted a team of his supporting officials and rushed to Madanapally In Chlntamanl Taluk where the suspect was likely to be found. At around 4.00 p.m., they reached Lakshmldevi Temple and waited. At 5.00 p.m, they noticed a person (later identified as accused No.1- Ramakrlshnareddy) was moving In a suspicious circumstances carrying a plastic bag. He rushed with his team members and detained him. On questioning, the first respondent/accused failed to give any answer fortifying their suspicion that he had contraband. The bag was thus searched and he found two skin (hide) of deer and two pair of horns of endangered species. Two skin and two pair of horns were seized in the presence of witnesses PW6- Somashekhar, PW1 1 -Ramakrlshnappa, PW3-Na rayana Rao and PW5-S.Ibrahlm. Since the first respondent/accused had no license or permit to possess such material, he was 4 held responsible for Illegal possession and taken to the police station. He was produced before the SHO and arrest formalities were complied.
4. The SHO of Chintamani Police Station PW12- Mohd Raft took the first respondent/accused into custody and then recorded statement of Panch witnesses to testify to the fact that two skin (hide) of the deer and two pair of horns were found in the possession of the first respondent/accused. On the basis of recovery of the contraband from the possession of the first respondent and the incuipating statements given by PW3-Narayana Rao, PW5-S.Ibrahim, PW6-Somashekhar, PW7-Kumar, PW9- Ranganath and PW11-Ramakrishnappa, report was filed under SectIon 173 of the Cr.P.C. before the jurisdictional Magistrate arraigning the first respondent as also the respondents 2 to 4 for offences punishable under Sections 9, 39, 40, 44, 49 (b) and (c) of the Wild Ufe Protection Act, 1972.
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5. The respondents who were arrested were produced before the Magistrate who recorded their plea.
6. As the respondents pleaded not guilty, it necessitated In trial during which the prosecution examined twelve witnesses and produced five documents and two material objects.
7. The learned trial Judge analysing the evidence held It falls short of legal proof to convict them and by the Impugned Judgment granted them acquittal. Assailing It, the State Is In appeal.
8. Though much has been urged by the learned appellant's counsel referring to the evidence on record agaInst the Impugned order, at thIs stage, an Issue would arise as to whether the InvestIgation Initiated based on the report of PW1 to PW12 was legally permissible and as to whether the trial conducted is lawful or is vitiated In the absence of Magistrate takIng cognizance of the offence In the manner provided by Section 55 of the Act. Therefore, reference has to be made to Section 55 whIch reads thus:
Pr 6 Section 55: CognIzance of offences:- No Court shall take cognizance of any offence against this Act except on the complaint of any person other than -
a) the Director of Wild life Preservation or any other officer authorised In this behalf by the Central Government; or aa) the member-Secreta,y, Central Zoo Authority in matters relating to violation of the provisions of Chapter WA; or ab) Member-Secretary, Tiger Conservation Authority; 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 provisions of Section 38; 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.
9. From the language of SectIon 55, it Is clear a bar is created statutorily upon the courts from taking cognizance of the offence punishable under the provisions of Act except as provided by Section 55 of the Wild Life Protection Act. The provision spells out No court shall take cognizance of offence against this Act except on the complaint of any person other than the category of persons mentioned In sub Section (1.) of dause (a), (aa), Cab), (b) (bb), and (c). Therefore, for the Court to take cognizance of the offence under the Act, It should be only on the basis of the complaint of any of the officers or authority named in that Section. Therefore, first test is to see whether PW1-Chlkkegowda was competent to submit the complaint for taking cognizance of an offence under the Act. The learned HCGP Srl.Raja Subramanya Bhat for the appellant has produced the notification dated 16.10.1973 which reads as follows:
(I) all the Forest Officers of and above the rank of a forester;
all the Officers of and above the rank of a Sub-Inspector of PolIce; and all the Revenue Officers of and above the rank of a Revenue Inspector.
10. The notificatIon sets at rest this controversy as In exercise of powers conferred by SectIon 55 of the Wild Life (Preservation) Act, 1972, the Government of Karnataka, has authorlsed amongst others, all the officers of and above the rank of a Sub-Inspector of Police to present such complaints. Therefore, the complaint submitted by PW1- Chikkegowda who is undoubtedly Sub-Inspector of Police comes within the category of persons referred to under Section 55. Hence, he was competent to submit a complaint for taldng cognizance of offence punishabie against the Act which was iawfuily acceptable by the Magistrate. This shall be the answer to the first point raised.
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11. However, the second question is whether PW12 Mohd Rafi, SHO of Chintamani Rural Police Station had competence to receive the complaint from PW2- Chikkegowda (PSI) to investigate the offence committed against the Act. The answer is obviously in the negative for the reason, the word employed in Section 55 of the Act is "complaint" and not a police report. The complaint referred to under Section 55 shall have the same meaning as assigned to it under Section 2(d) of the CrPC., which reads thus:
'CompIaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report"
11. Therefore, it is seen to initiate action or for the purpose of investigation, complaint has to be submitted to the Magistrate by anyone of the category of persons referred to in Section 55 and upon receipt of such a to t C ompiaint", the Magistrate shall take cognizance following the procedure prescribed by SectIon 200 of the Cr.P.C. There shall be no doubt on this poInt it excludes police report or report of the investigation by the police suo moto or on the basis of report submitted to it under Section 154 of the Cr.P.C. In other words, the SHO of the jurisdictional Police shall have no power to investigate commission of offence under the Act except on the basis of the complaint submitted to the Magistrate and referred to him for Investigation.
12. Section 55 clarifies that court shah not take cognizance except on the basis of the complaint submitted by any one of the officers named in Section 55 it excludes final report submitted by the police officials under Section 173 of the Cr.P.C.
13. In the instant case, PW1-Chikkegowda has not submitted a complaint to the Magistrate for action against the respondents but has submitted complaint Ex.P1 to PW12, Mohd Rafi, the SHO of Chintamani Rural Police I, Station. PW12 Mohd Raft without realizing he had no competence has embarked on the investigation and filed final report in C.C.No.25/2004 before the jurisdictional Magistrate. The learned jurisdictional Magistrate has also failed to examine whether he was comptenet to take cognizance on the basis of report to the police submitted to him under Section 173 In contravention of the man date of SectIon 55 of the Act. In this view, the entire proc ess of investigation and the trial Is vitiated. Even on meri t, I find there Is no material evidence to establish the char ge. In the result, the acquIttal of the respondent is justified.
Hence, the appeal fails and Is accordingly dismissed .
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