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TMI Blog1988 (10) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... code of Crl. Procedure 1973, the order dated 1.7.1986 of the Judicial Magistrate Chaibasa, ,taking cognizance of an offence under Section 9(1) read with sec. 51 of the Wild Life Protection Act. 1972 against respondent-Vikram Singh. Special Leave Petition Nos. 1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar orders both dated 18.2.1987 in Criminal Misc . No . 258/ 1987(R) and 259/ 1987(R) of the High Court quashing the same common order of the said Magistrate dated 1.7.1986 against two other accused, namely, Murad Ali Khan and faruq Salauddin who are respondents in these two Special Leave petitions. 2. Special leave was granted and the three appeals were taken up for final hearing, heard and disposed of by this common-judgment. We have heard Shri M.P. Jha, learned counsel for the State of Bihar and Dr. Chitaley and Shri Nariman for the respondents. 3. The accusation against the three respondents is that on 8.6.1986 at 2.0() P.M. they along with two others named in the complaint, shot and killed an elephant in compartment No. 13 of Kundurugutu Range Forest and removed the ivory tusks of the elephant. On 25.6.1986 the Range Officer of Forest of that Range l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie for the offence alleged." 4. On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High court is unsupportable In regard to the first ground, presumably, certain provisions of the "Act" in regard to cognizability and investigation of offences against the act, relevant to the matter, had not placed before the High Court. The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological-imbalances introduced by the depradations inflicted on nature by man. The State to which the ecological-imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate has been a great and urgent necessity for the survival of humanity and these laws reflect a last-ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks m m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tresspass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the civilized man" operating directly through. excessive commercial hunting or. more disastrously. indirectly through invading or destroying natural habitats. 5. We might now turn to certain provisions of the Act. Sec. 9(1) of the Act says that no person shall "hunt" any wild animal Specified in Schedule T. Elephant is included in schedule I. The expression wild animal" is defined in see. 2 (36) to mean any 'animal found wild in nature and includes any animal specified in schedule 1" etc. 'The expression "hunting" is defined in see. 2 (16) in a comprehensive manner: "2(16) 'hunting' with its grammatical variations and cognate expressions, includes. (a) capturing. killing. poisoning. snaring and trapping of any wild animal and every. attempt to do so (b) driving any wild animal for any of the purposes specified in sub-clause(a). (c) injuring or destroying or taking any part of the body of any such animal or. in the case of wild brids or reptiles, damaging the eggs of such birds or reptiles or, disturbing the eggs or nests of such birds or reptiles: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the function of the Trial Magistrate when the evidence comes before his. Through it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is could upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet do not in law constitute or spell-out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not. In Municipal Corporation of Delhi v. R.K. Rohtagi, [1983] SCR 1 884 at 890 it is reiterated: "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haibasa with jeep No BRX 9588 and they were handed over in the custody of the S.P. Singhbhum. Chaibasa, for needful. Mr. Murad Ali Khan promised na produce the tusk in a few days time but did not disclosed the place where he had sent the tusk at Lucknow ....' The complaint further proceeds to say that elephant is included in the Schedule-1 of the Wild Life (Protection) Act. 1972 and that the complainant was authorised by the Bihar Government's notification No SO-1022/418/73 to file complaints under Act. It is difficult to agree with the High Court that the allegations in the complaint taken on their face-value would not amount in law to any offence against the "Act". The second ground on which the High Court came to quash the proceedings of the Magistrate, on the facts of this case, is impermissible as an exercise under Sec. 482, Cr.P.C. 7. It was however, suggested for the respondents that the offence envisaged by sec. 9(1) read with sec. 2(16) and sec. 50(1) of the Act, in its ingredients and content, is the same or substantially the same as Sec. 429, IPC and that after due investigation and police had filed a final report that no offence was made out and that initiation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r two or more enactments: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.'' Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re- prosecution after acquittal, a protection against re- prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Art. 20(2). But difficulties are in the application of the principle in the context of what is meant by ' same offence". The principle in American law is stated thus: "...The proliferation of technically different offences encompassed in a single instance of crime behavior has increased the importance of defining the scope of the offense that controls for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if each provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 the accused was tried by the special judge for offences under sec. 409 IPC, and sec. 5(2) of the Prevention of Corruption Act, 1947. While convicting him under sec. 409, IPC, the Special Judge held that the accused could not be tried under sec. 5(2) of the Prevention of Corruption Act, 1947, as there was a breach of the requirement of law that the investigation be by a police officer not below a particular rank. In appeal, the High Court set aside even the conviction under Sec. 409 IPC, applying the doctrine of autrefois acquit holding that the Special Judge's finding on the charge under Sec. 5(2) amounted to an acquittal and that punishment as a charge under Sec. 409, would be impermissible. This court following the pronouncement in Omprakash Gupta v. Slate of UP, [1957] SCR 423 held that the two offences were distinct and separate offences. In The State of Bombay v. S.L. Apte Anr., 11961] 3 SCR 107, the question that fell for consideration was that in view of earlier conviction and sentence under sec. 409, IPC a subsequent prosecution for an offence under sec. 105 of Insurance Act. 1935, was barred by sec. 26 of the General Clauses Act and Art. 20(2) of the Constitution. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the sub-section which uses the words "where such contempt is an offence" and does not say 'There the act alleged to constitute such contempt is an offence'......." It is. however, unnecessary to explore the possibilities of this contention as indeed there has been admittedly no prior conviction and sentence for an offence under s. 429, IPC e- en assuming that the two offence are substantially "the same offence'. Suffice it to notice, prima facie that the ingredients of an offence under sec. 9(1) read with sec. 50(1) of the Act require for its establishment certain ingredients which are not part of the offence under sec. 429 and vice-versa. In the result, these appeals are allowed, the orders of the High Court in Crl. Misc. 223 of 87 dated 13.2.1987 and the two orders in Crl. Misc. No. 258 of 1987(R) and Crl. Misc. No. 259/1987(R) 18.2.198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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