Karnataka High Court
Niren Jain vs Anita Arekal on 12 August, 2011
Author: N.Kumar
Bench: N Kumar
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IN THE HIGH COURT OF KARNATMCA AT BANGALORE
Dated t.his the 12° day of August... 2011
BFF ORE
THE HONBLE MR. JUSTICE N KUMAR
Petitioa
BETWEEN:
Mr. Niren Jam
S/o VK. Jtin
Aged about 30 years
No3, Rathua Apartmeuts
Kadri
Maugalore 575 002
-- Yetitiouer
(By Sri. BV. Aeharya, Seuior Advocate for
M/E 1-lolla & Hoila, Advocates)
AND:
1. Smt, Auita Arekal
Deputy Couservator of Forest
Kudremukh \Vild Lite Divisiou
Karkata
2.. Sri Mudlappa
Rauge Forest 0 leer
Kudremukh Wild Life Rauge
Ko.dremu.k.h
V
2
3. SrI S. S. Hegde
Range Forest Officer
Beithangady Wild Life Range
4. State of Karnataka
Represented by Its
Principal Secretaxy
Forest, Ecology and Environment
Multistorled Building Phase-TI
Dr. Ambedkar Veedhl
Bangalore 560 001
- ...Respondents
(By Sri K.M. Shivayoglswamy, HCGP)
This Writ Petition Is filed under ArtIcles 226 and 227 of
the Constitution of India, praying to quash the FIR No.33/04,
dated 12-5-2004 lodged by respondent-2 before the Court of
the Prl. Civil Judge (Jr.Dn.) & JMFC, Mudigere In FOC No.3/04
vide Annexure-H.
This Writ Petition coming on for hearing this day, the
Court made the following:
ORDER
The petitioner In this petition Is seeking quashing the complaint lodged by the respondent No.2 before the Court of Pri. Civil Judge (Jr.Dn.) & JMFC, Mudigere In FOC No.3/04 vide Annexure-il.
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2. Th.e. petitioner, Niren. Jam, is a practicing arehite.et in Mangalore and ba.s been involved in. con.sen'ation of Kndremnk.h Nationai Park: ihr the past several ears. Lie was working as a reseaich. assistan.t nnder Dr. Ullas .Karanth. fdr more than 2 years nn.der the Karnataka Tiger Conservation Project. He has been instrn.mental in the campaign to stop the mining activities to save Kndremnkh National Park, Working as a research as.sistant he aeqnired skills to seientifieaiiy monitor wildlife popnlation n.sing cam.era traps, line transect samphng and oth..er .seientihe methods. He has been awarded the Carl Zeise Roil of hononr award for h..is eontribntion to wildlife conservation in Kndremnkh, Karnataka. He has writ.ten several popniar articles on wildlife and iorest conservation and hails from a respected fanily i.n Pnttnr. He h.as also involved in. the inaplement.ation of th.e Commu.nity L•eadersh ip ibr Tiger Conservai.ion ('CLTC project') which primarily involves generating awareness abont. wild life conservation among th.e vi.liagers residing in th.c. rever.u.e cnciosnres bordering the. Kndremnkh Natior,ai Park. 4 4
3. On 19.4.2004 the first respondent issued summons to the petitioner and associates to appear before her on 27.4.2004 alleging trespass or abetment of trespass into Kudremukh National Park on their part as per Annexure-E. Even before that date she conducted a raid on the premises of the petitioner at No.3. Rathna Apartments. Kadri. Mangalore 575 002. She confined him for several hours illegally and seized his personal computer. CDs, digital diaries, architectural service bills. etc.. Thereafter, she has registered a case against the petitioner in FIR No. 33/2004 on 12.5.2004 as per Annexure-H filed by the second respondent. Aggrieved by the same, the petitioner has preferred this Writ Petition seeking quashing of the said FIR.
BACKGROUND OP was CASE
4. Kudremukh National Park is the largest wildlife reserve of tropical wet evergreen forests in the Western Ghats which are recognized as one of the 25 biodiversity hotspots in the entire world. The Park is the source of three major rivers I 5 (Bhadra, Tunga and Nethravathl) and harbors several species of endangered animals such as tiger, leopard. wild dog. gaur. liontalled macaque, hornbffls 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 over the years. One major conservation Initiative undertaken by the Government of Karnataka was the Karnataka 'Uger Conservation Project. Under this project the petitioners organisatlon provided 15 four wheel drive jeeps. 2 high speed patrol boats, around 60 wireless sets. more than 1700 field kits and Insurance policies for frontllne protection staff and conducted a dozen training programs for field staff. The project was carried out in collaboration 1th the forest department and the petitioners moved around In the National Park to execute project activities and document these activities. Letters of apprcciatlon from the Chief Wildlifc Warden/DC?. Kudremukh are produced. a 6
5. In the report submitted ft 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 actMtles 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 by Kudreniukh 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 Varden under Section 28(2) of the Wildlife (Protection) Act, 1972 (for short hereinafter referred to as 'the Act'). However, some of the project activities did Involve interaction with forest department staff and/or entry Into the park, such 7 activities were carried out with specific permission obtained from local officials and often In association with them. For example, petitioner No. I 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. etc.. to staff under the banner of the CLTC project with official approval. All these •project activities were can-led out with full knowledge of local officials and in association with them Is clearly shown 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 Kudremukh area. but were outside the boundaries of the national park, using public rights of ways. Even these act iiUes were well '4 8 known to the forest staff officials who sometimes even accompanied tht'in 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 shown by photographs.
6. 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 Karnataka, associated 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 i'nlnlng In protected areas.
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7. Wildlife First filed an Interlocutory Application l.A. 670/2001 in \VP 202/1995 before the Honble Supreme Court of India praying for stoppage of iron ore mining in Kudremukh National Park. The petitioners presented crucial evidence before the Honbie Supreme Court. This evidence Included findings from a scientific study involving petitioners with pennissions 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 study results highlighted the massive soil erosion. sedimentation and siltation problems caused In the Bhadra river system by the mining operations.
8. 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 livelihoods for the purpose of educating the public. The 1--
10educational 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 Honbie Supreme Court as far back as the year 2001.
9. 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 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 Honble Supreme Court. The then DCF, Kudrenlukh Wildlife DMsion had also written to the Government In March 2003 urgIng it to include the above area In the national park. 11
10. During February 2000. rñle 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 required under the Act. She has totally failed to pursue the matter with necessaly urgency, thus potentially endangering the park from the ravages of continued mining and indirectly beneflttlng the mining activities.
11. A perusal of the FIR shows that. it bears No. 33/2004 dated 12.5.2004. However, the date of probable preparation of ihe FIR is shown as 27.4.2004. In the column nature of ofiènee, Sections 5. 24 and 62 of the Karnataka Forest Act. 1968 and Sections 5, 27. 28 and 39 of the Wife Life (Protection) Act. 1972 is mentioned. In the column meant for description and quantity of the property seized, where. when 12 and what arrangements made for Its safe custody it Is mentioned Computer. C.D Computer and files ill be produced before the authorized officer. In column 5 meant for name and address of the accused. if arrested. how he was disposed off. it was mentioned absconded, Nlran Jam, No.3, Ratna Apartments, Mangalore Kudremukh Wild Life Foundation. The name of the witness is shown as the first respondent and ft is prepared by Range Forest Officer, Wild Life Range, Kudremukh. In the search list which is enclosed to the same the articles which were seized from the premises of the petitioner Is clearly set out In the end it is mentioned all these articles were examined in the presence of the petitioner, accused in the case and as they were found to have been collected contrazy to the provisions of the Wild Life Protection Act. 1972 they are seized and for the purpose of security and protection the same is han&d over to the Deputy Forest Officer. Kudremukh Wild Life Sanctuary. Karkala.
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12. In the entire FIR which is submitted to the jurisdictional Magistrate there is no reference to the commission of any offence. In fact in the proceedings initiated by the petitioner for release of the seized articles when the learned Magistrate refused to release the articles seized petitioner preferred a revision petition before the Sessions Court. Before the Sessions Court a submission was made that no offence is committed under the Forest Act and the offences alleged are only under the Wild Life Protection Act. 1972. Under the said Act they have mentioned four sections. Sections 5. 27. 28 and 39. Section 5 deals with power to delegate. Similarly Section 28 deals with grant of permit and Section 39 deals with properties which are seized under the aforesaid provisions shall be the property of the State Government In other words It does not deal with any offence. So these three Sections invoked by the respondents do not pertain to any offence at all. The only provision which deals with an offence is Section 27. It deals with restrictions on entry in sanctuary. The said Section provides that. no person 1--
14shall enter or reside in the sanctuary except under and in accordance with the conditions of a pennit granted under Section 28. In other words entering a sanctuary without permit is an offence under the Act. In the show cause notice issued to the petitioner. in so far as Kudremukh Wild Life Range of Kudremukh National Park is concerned, the accusation is violation for the period between July 2001 to June 2002 and July 2002 to June 2003 and July 2003 till date. In fact In the revision petition before the Sessions Court It Is the specific case of the respondent that the seized articles show that the petitioner entered the sanctuary and committed the act of trespass between the period from 26.1.2003 and 4.3.2003. Annexure-J produced along with the Writ Petition is the permission granted to the petitioner under Section 28 of the Forest Act to enter Kudremukh National Park for Wildlife Foundation. Kadri. Mangalore. is hereby permitted to enter Into the Kudremukh National Park for Wildliiè Conservation activities lbr a period of onc year from 20.7.2002 to 19.7.2003 subjcct to the conditions enclosed to this order. Therefore, it Is 4 15 clear that, on the day the petitioner alleged to have trespassed into the sanctuary, I.e., during the period 26.1.2003 and 4.3.2003 the petitioner possessed a valid permit granted under Section 28 of the Act. In fact In the FIR It Is not mentioned when the petitioner entered the sanctuary and what Is the nature of offence said to have been committed by the petitioner. Therefore, the FIR do not disclose the commission of an offence which Is a condition precedent for the authorities to register a case and take up investigation. It Is clear form the FIR that, prior to the preparation of FIR and registering the FIR the seizure has been conducted, I.e., on 22.4.2004. Admittedly, no warrant was obtained from the jurisdictional Magistrate to conduct the seizure. The offence alleged against the petitioner Is trespassing into the sanctuary without a permission and the seizure Is of computer, files In the possession of the petitioner In his office. Sub-section (4) of Section 50 of the Act mandates that, any seizure under the aforesaid Section shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life warden or the officer 16 authorised by him In this regard. The articles were seized on 22.4.2004. The FIR Is forwarded to the jurisdictional Magistrate on 12.5.2004. Even on that date the seized articles were not produced before the Magistrate to be dealt with according to the law. In fact In the FIR accused is shown to have been absconding. In the search list which Is enclosed to the FIR. It Is stated that all the articles were seized In the presence of the petitioner.
13. 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 these petitioners are member. 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 Conscn'ation Project being executed as collaboration In Bhadra Wildlife Sanctuary by 17 Bhadra V1ldIllè Conservation Trust. The third project. community leadership iór Tiger Conservation Project being executed as a collaboration in Nagarhole (Rajiv Gandhi National Park) through Living Inspiration ftr 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) referred 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 hi rest of India or any activities abroad. The petitloner-organisatlon is not conducting the aforesaid three projects. The said three projects are conducted by three independent organisations. Therefore, on the face of It the violation complained of Is incorrect.
14. 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 18 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 constituted 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 Honble Supreme Court on coining to 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 51A (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 file complaint in the competent Court after givIng 60 days notice to the Central or the State Government. A similar provision 19 already exists In the Environment (Protection) Act. 1986. Besides. the notification dated 17.9.2002 by which the CEC was constituted, sub pam (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, it has to be ensured that the provisions of the Acts are not used to harass the people involved in genuine conservation efforts. The CEC was constrained to observe that the concerned senior officers of the State of Karnatnka 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 forest and wildlife. Thereafter. they recommended to the State of •17- n K.arnataka •to en.qn.ire into t..h.e propriety, legality a.nd. t.he circn.mstanices lead.in.g t.o initht..ion. ot the crinrin.al proceedings a.gainst th.e applicants an.d othe.rs and ti.ie an enqniry report within one month, it. also directed the State ot Karnataka to in 'hate appropriate action again.st Deputy Conservator ot Forests, Kndremn.kh. Wildlite Divi..sion, for willful violat.ion ot th.e CFC 's order dated 28,4,2004 and tor making derogatory comments against the CEC and its members.
15. Theretore, irv snbstance the complaint is these petitioners have contravened clause (6) of the order under Section 28 of the Act. C lan.se 6 reads as under:
"6. The applicant oryanisation has to infomr the u.adersiyned. if it is coad,ucting/ intend.ing t:o con,dnct Lii any other actici:ties in .Karnataka (IL) any acticdies in rest of 16dm any actictties abroad 21 This information Is intended to ensure that st4JTcienc time and focus is given to this prqject by the applicant orgartisatlon.
16. From the aforesaid facts it Is clear ex -- fade there Is no substance in the allegations made in the complaint The material on record clearly demonstrates these petitioners are as much interested as the respondent-officials in protecting the environment, forest, the ecology and the tribal people who are living in the forest. In fact, they have spent their entire life in carrying on these activities. They have been instrumental in placing relevant material before the Apex Court which has resulted in stoppage of mining activities in this region pennanently. The facts set out above clearly demonstrates that probably the respondent is unable to realise the importance of the senrices rendered by these petitioners. She appears to have mistake notion about what thcy are trying 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 22 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 prepared to appreciate the effort of others. That appears to be the real reason ibr these proceedings. The respondent young in age has tasted power and wanted to show these petitioners what she can do and that Is how she has shown special interest In search. seizure and in preparing mahazar. collecting information and filing a series of criminal cases, on almost all the provisloos under the fret to hrioq home the point that she is also eoti.tied respeet. from t..h.e pet.it.ioners it is eiea.r from tl material on. reeord that these. proeeedi.ngs are not initiated bona fidu to: prevent any oflenees under the fret or to pnnsh the offen.d.ers who have volate.d th.e law. Probably it is motivated by vindietivene.ss. For that, proe.e.s.s of hnv is ahnsed. The Apex Court in the ease of STATE OF HARYANA AND OTHERS vs BHAJAN LAL AND OTHERS [1992 SUPP (1) o into the question io what SCC 335] had an oeeasion to p 1 eatecte;ries of eases hr way of illustration whereii' power under Article 482 of fhe Cr:PC eonld be exercised either t.o prevent i4iise of the proeess of any Court or otherwise to secure the ends ol atsnee. I honqh it roar not he ossihie to lax: doxrn any precise, clearly defined and snffieiently ehannelised and
-- o C rn at 9 5 t list of a tyriad kinds oi oaaes xvi.-teretn. such power snouio lie exercised. Farther, they have gsiven th.e following ihn.stration.s:
II 24
1) Vhere the allegations made In the first Infomiatlon 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 cognlzable 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.
4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognlzable offence, no Investigation is permitted by a 25 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 fide 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. 26
17. 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 rellabiltiy or genuineness or othenvise 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.
18. In my view the present case falls under 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 cicarly 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 27 rcponder s In b.c for st depastrnt 1 under vano as progranlme%. The) have spent their mont y In the priwecs. They have made documentatlons. they have written articles lhcy ha ban ecognnd 1hcy have b en th h nour I Thcy are assisting he Apex Court ly furnishing the relevant material In protecting the forest In passing appropriate orders from tlmc time They are also assistmg the mmitie onstituted z tin egard Ihey an also a tnely nvolved z emancipation of the persons living within the forest or Inside the forest. Certainly the provisions of the Act are not meant to )rCa cut tcrs ticy Ofi' 1 ci ' 'ffnc der€ of he prcvsions ci the Ac Act lear fr m the egatic 1 made against them they are sc. absurd and Inherently I obab ii th sls o hich prud pen can cv r a cci loll tic s n a nd proceedinc! aRaint the rwcused the co called evidence collected u' 'lipport of the ailegations. in suppoit of FIR do nor it in of ial' a ag ii' I ('Li WCl Ii' c dir 1% liciot 28 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 weU 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 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 folloIring order:
a CD fle ot fl I L