Jagdish Krishnaswamy, Ashoka Trust for Research in Ecology and Environment and Others Vs. Deputy Conservator of Forest Kudremukh Wild Life Division, Udupi District and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/953280
CourtKarnataka High Court
Decided OnApr-04-2013
Case NumberCriminal Petition No. 3199 of 2006 c/w Criminal Petition No. 3198 & 3197 of 2006 in CRL.P. No. 3199 of 2006
Judge ANAND BYRAREDDY
AppellantJagdish Krishnaswamy, Ashoka Trust for Research in Ecology and Environment and Others
RespondentDeputy Conservator of Forest Kudremukh Wild Life Division, Udupi District and Another
Excerpt:
(prayer: this criminal petition is filed under section 482 code of criminal procedure, 1973, praying to set aside the order dated 8.5.2006 in crl.r.p.no.84/2004 on the file of the presiding officer, fast track court-i, chikmagalur and the order dated 15.6.2004 passed by the principal civil judge, (jr.dn.) and judicial magistrate first class, mudigere, taking cognizance of offence in c.c.no.574/2004 and issuing process to the petitioners and quash the charge-sheet dated 11.6.2004 filed by the second respondent before the judicial magistrate first class, mudigere, in foc 4/2004-2005.) this criminal petition is filed under section 482 code of criminal procedure, 1973, praying to set aside the order dated 8.5.2006 in crl.r.p.no.83/2004 on the file of the presiding officer, fast track court-i, chikmagalur and the order dated 24.6.2004 passed by the principal civil judge, (jr.dn.) and judicial magistrate first class, mudigere, taking cognizance of offence in c.c.no.590/2004 and issuing process to the petitioners and quash the charge-sheet dated 16.6.2004 filed by the second respondent before the judicial magistrate first class, mudigere, in foc 6/2004-2005.) this criminal petition is filed under section 482 code of criminal procedure, 1973, praying to set aside the order dated 8.5.2006 in crl.r.p.no.82/2004 on the file of the presiding officer, fast track court-i, chikmagalur and the order dated 18.6.2004 passed by the principal civil judge, (jr.dn.) and judicial magistrate first class, mudigere, taking cognizance of offence in c.c.no.585/2004 and issuing process to the petitioners and quash the charge-sheet dated 12.6.2004 filed by the second respondent before the judicial magistrate first class, mudigere, in foc 5/2004-2005.) 1. these petitions are heard and disposed of together by this common order as the allegations are similar against the petitioners. 2. the petitioners claim to be wild life biologists, architects, lawyers, coffee planters and businessmen. one of the petitioners is also a retired range forest officer with an impeccable record and who is a recipient of the chief minister's medal for outstanding service. they are avid nature lovers, who have been carrying on forest and wildlife conservation for over four decades and have campaigned extensively for the protection of forests in the kudremukh area. kudremukh forest was declared as a national park in the year 1987, wherein ecological studies and sustained campaigns were undertaken by dr.ullas karanth, who has highlighted the need to protect the bio-diversity of the area. it is stated that the sustained campaign and initiation of the petitioners and others resulted in the supreme court of india imposing a total ban on mining and all ancillary activities in the kudremukh region with effect from 31.12.2005. following the closure of the mining operations, the former deputy conservator of forests, kudremukh has filed a series of complaints against the petitioners and others in the courts of the magistrate at sringeri, belthangady, mudigere and karkala, alleging offences of surreptitiously venturing into the reserve forest area in the guise of compiling video footage depicting the extent of environmental damage caused by the unrestricted mining operations in the national park; preparation of a scientific report depicting the sedimentation in bhadra river caused by mining activities. in this regard, the allegation is that in order to carry out these activities, the petitioners had entered the kudremukh national park area, without any authority and thereby had committed offences punishable under the provisions of the wild life protection act, 1972 (hereinafter referred to as the 'wlp act', for brevity) as well as offences punishable under the provisions of the karnataka forest act, 1963 (hereinafter referred to as the 'kf act', for brevity) . the petitioners had initially questioned the initiation of proceedings before the competent district and sessions court, chikmagalur, which has considered their petition and has dismissed the same holding that the petitioners would have to stand trial in respect of the allegations. it is in this background that the petitioners are before this court. 3. the learned senior advocate shri udaya holla, appearing for the counsel for the petitioners, would submit that atleast ten petitions before this court have been allowed in respect of the very same charges brought against the petitioners and others, and these petitions and three more are in the series, sought to be foisted against the petitioners on false and exaggerated charges of unauthorized entry into the forest and commission of other offences punishable under the provisions of the aforesaid legislation. the learned senior advocate would straight away point out that notwithstanding the reasoning given by the court below as to the maintainability of the proceedings against the petitioners, there are two glaring aspects, which have been overlooked by the courts below, which ought to have dismissed the complaint in the first instance. it is pointed out that in the first information report, the officer has not indicated the date and time of the alleged offences committed by the petitioners. this is also not forthcoming in the charge-sheet that followed. therefore, the very basis of the complaint is eroded on account of the necessary particulars not being stated and it is impossible to frame a charge, which the petitioners can meet, without reference to the time and date of the incident. secondly, it is pointed out that all the offences alleged would attract a maximum punishment of imprisonment of three years, in which event, under section 468 of the code of criminal procedure, 1973 (hereinafter referred to as the "cr.pc', for brevity), the court could not have taken cognizance of the offences beyond the period prescribed within which cognizance could be taken in respect of the offences, which attract the punishment of imprisonment, for a period less than three years. therefore, it is pointed out that the allegations of the petitioners having violated the law in having entered the forest without necessary authorization, is with reference to video footage that was exhibited before the apex court in proceedings before that court, which was of the year 2001. therefore, the proceedings that are initiated in the year 2004 was certainly beyond the period of three years from the alleged date of cause of action. in any event, the video footage which was exhibited before the supreme court though was during the year 2001, it was apparently even before that period, that the footage had been captured. therefore, the proceedings were clearly barred by time with reference to section 468 of the cr.p.c. the learned senior advocate would submit that apart from these glaring infirmities, the other circumstance, which could be demonstrated, to hold that the proceedings against the petitioners were prompted by mala fides, is the lone war, as it were, which is sought to be carried on by the deputy conservator of forests, smt. anitha s arekal, who was made a party to the present petitions, but was subsequently deleted by virtue of a direction of this court and in fact, some of the petitions filed earlier had been allowed, while holding that there were apparent mala fides on the part of the said officer in having instituted proceedings against the petitioners. therefore, the learned senior advocate would submit that it would be sufficient for the petitions to be allowed on the above two grounds, without reference to any other ground. 4. while the learned additional state public prosecutor would seek to justify the orders of the court below and would submit that it is not fatal to the case that the date and time of the alleged incident is not mentioned either in the first information report or the charge sheet and it could be supplemented by the evidence that would be tendered at the trial. 5. this statement cannot be accepted. it is essential in a report, on which criminal prosecution is launched, to contain the particulars of the time and date of the incident, as is spelt out under section 212 of the cr.p.c and in the absence of this necessary detail, the further proceedings would be futile. it is unfortunate that there is this lapse when the author of the report was a police officer, who ought to have known the need for this basic requirement of the date and time of the incident, which if not stated, the accused would not be in a position to meet the case at all or to claim their defences in respect of what would only be vague allegations. since it is not disputed by the petitioners that they have indeed entered the forest on several occasions, but on each such occasion, it was with due authorization and they were even accompanied by the competent forest officials on each such venture and therefore, if they are not informed of the date and time of the incident, it would not be possible for them to defend their case at all and therefore, they would be seriously prejudiced. secondly, as rightly pointed out by the learned senior advocate, the allegation against the petitioners arose from the fact that they had displayed the video footage of the kudremukh forest, which they could not have captured without entering the forest. it is the case of the prosecution that they had done so, without the permission of the authorities. hence, if the video footage was of a period before 2001, it would necessarily follow that the proceedings, which were initiated in the year 2004, was well beyond three years from the date of such filing. in which event, the bar under section 468 of the cr.pc would clearly apply. hence, it cannot be said that the complaint was maintainable or any further proceedings could be taken on that foundation. accordingly, the petitions are allowed. the impugned proceedings in the respective petitions stand quashed.
Judgment:

(Prayer: This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to set aside the order dated 8.5.2006 in Crl.R.P.No.84/2004 on the file of the Presiding Officer, Fast Track Court-I, Chikmagalur and the order dated 15.6.2004 passed by the Principal Civil Judge, (Jr.Dn.) and Judicial Magistrate First Class, Mudigere, taking cognizance of offence in C.C.No.574/2004 and issuing process to the petitioners and quash the charge-sheet dated 11.6.2004 filed by the second respondent before the Judicial Magistrate First Class, Mudigere, in FOC 4/2004-2005.)

This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to set aside the order dated 8.5.2006 in Crl.R.P.No.83/2004 on the file of the Presiding Officer, Fast Track Court-I, Chikmagalur and the order dated 24.6.2004 passed by the Principal Civil Judge, (Jr.Dn.) and Judicial Magistrate First Class, Mudigere, taking cognizance of offence in C.C.No.590/2004 and issuing process to the petitioners and quash the charge-sheet dated 16.6.2004 filed by the second respondent before the Judicial Magistrate First Class, Mudigere, in FOC 6/2004-2005.)

This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to set aside the order dated 8.5.2006 in Crl.R.P.No.82/2004 on the file of the Presiding Officer, Fast Track Court-I, Chikmagalur and the order dated 18.6.2004 passed by the Principal Civil Judge, (Jr.Dn.) and Judicial Magistrate First Class, Mudigere, taking cognizance of offence in C.C.No.585/2004 and issuing process to the petitioners and quash the charge-sheet dated 12.6.2004 filed by the second respondent before the Judicial Magistrate First Class, Mudigere, in FOC 5/2004-2005.)

1. These petitions are heard and disposed of together by this common order as the allegations are similar against the petitioners.

2. The petitioners claim to be wild life biologists, architects, lawyers, coffee planters and businessmen. One of the petitioners is also a retired Range Forest Officer with an impeccable record and who is a recipient of the Chief Minister's Medal for outstanding service. They are avid nature lovers, who have been carrying on forest and wildlife conservation for over four decades and have campaigned extensively for the protection of forests in the Kudremukh area.

Kudremukh forest was declared as a National Park in the year 1987, wherein ecological studies and sustained campaigns were undertaken by Dr.Ullas Karanth, who has highlighted the need to protect the bio-diversity of the area.

It is stated that the sustained campaign and initiation of the petitioners and others resulted in the Supreme Court of India imposing a total ban on mining and all ancillary activities in the Kudremukh region with effect from 31.12.2005. Following the closure of the mining operations, the former Deputy Conservator of Forests, Kudremukh has filed a series of complaints against the petitioners and others in the courts of the Magistrate at Sringeri, Belthangady, Mudigere and Karkala, alleging offences of surreptitiously venturing into the reserve forest area in the guise of compiling video footage depicting the extent of environmental damage caused by the unrestricted mining operations in the National Park; preparation of a scientific report depicting the sedimentation in Bhadra river caused by mining activities. In this regard, the allegation is that in order to carry out these activities, the petitioners had entered the Kudremukh National Park area, without any authority and thereby had committed offences punishable under the provisions of the Wild life Protection Act, 1972 (Hereinafter referred to as the 'WLP Act', for brevity) as well as offences punishable under the provisions of the Karnataka Forest Act, 1963 (Hereinafter referred to as the 'KF Act', for brevity) . The petitioners had initially questioned the initiation of proceedings before the competent District and Sessions Court, Chikmagalur, which has considered their petition and has dismissed the same holding that the petitioners would have to stand trial in respect of the allegations. It is in this background that the petitioners are before this court.

3. The learned Senior Advocate Shri Udaya Holla, appearing for the Counsel for the petitioners, would submit that atleast ten petitions before this court have been allowed in respect of the very same charges brought against the petitioners and others, and these petitions and three more are in the series, sought to be foisted against the petitioners on false and exaggerated charges of unauthorized entry into the forest and commission of other offences punishable under the provisions of the aforesaid legislation.

The learned Senior Advocate would straight away point out that notwithstanding the reasoning given by the Court below as to the maintainability of the proceedings against the petitioners, there are two glaring aspects, which have been overlooked by the courts below, which ought to have dismissed the complaint in the first instance. It is pointed out that in the first information report, the officer has not indicated the date and time of the alleged offences committed by the petitioners. This is also not forthcoming in the charge-sheet that followed. Therefore, the very basis of the complaint is eroded on account of the necessary particulars not being stated and it is impossible to frame a charge, which the petitioners can meet, without reference to the time and date of the incident.

Secondly, it is pointed out that all the offences alleged would attract a maximum punishment of imprisonment of three years, in which event, under Section 468 of the Code of Criminal procedure, 1973 (Hereinafter referred to as the "Cr.PC', for brevity), the court could not have taken cognizance of the offences beyond the period prescribed within which cognizance could be taken in respect of the offences, which attract the punishment of imprisonment, for a period less than three years. Therefore, it is pointed out that the allegations of the petitioners having violated the law in having entered the forest without necessary authorization, is with reference to video footage that was exhibited before the apex court in proceedings before that court, which was of the year 2001. Therefore, the proceedings that are initiated in the year 2004 was certainly beyond the period of three years from the alleged date of cause of action. In any event, the video footage which was exhibited before the Supreme Court though was during the year 2001, it was apparently even before that period, that the footage had been captured. Therefore, the proceedings were clearly barred by time with reference to Section 468 of the Cr.P.C.

The learned Senior Advocate would submit that apart from these glaring infirmities, the other circumstance, which could be demonstrated, to hold that the proceedings against the petitioners were prompted by mala fides, is the lone war, as it were, which is sought to be carried on by the Deputy Conservator of Forests, Smt. Anitha S Arekal, who was made a party to the present petitions, but was subsequently deleted by virtue of a direction of this court and in fact, some of the petitions filed earlier had been allowed, while holding that there were apparent mala fides on the part of the said officer in having instituted proceedings against the petitioners. Therefore, the learned Senior Advocate would submit that it would be sufficient for the petitions to be allowed on the above two grounds, without reference to any other ground.

4. While the learned Additional State Public Prosecutor would seek to justify the orders of the court below and would submit that it is not fatal to the case that the date and time of the alleged incident is not mentioned either in the first information report or the charge sheet and it could be supplemented by the evidence that would be tendered at the trial.

5. This statement cannot be accepted. It is essential in a report, on which criminal prosecution is launched, to contain the particulars of the time and date of the incident, as is spelt out under Section 212 of the Cr.P.C and in the absence of this necessary detail, the further proceedings would be futile. It is unfortunate that there is this lapse when the author of the report was a Police Officer, who ought to have known the need for this basic requirement of the date and time of the incident, which if not stated, the accused would not be in a position to meet the case at all or to claim their defences in respect of what would only be vague allegations.

Since it is not disputed by the petitioners that they have indeed entered the forest on several occasions, but on each such occasion, it was with due authorization and they were even accompanied by the competent forest officials on each such venture and therefore, if they are not informed of the date and time of the incident, it would not be possible for them to defend their case at all and therefore, they would be seriously prejudiced. Secondly, as rightly pointed out by the learned Senior Advocate, the allegation against the petitioners arose from the fact that they had displayed the video footage of the Kudremukh Forest, which they could not have captured without entering the forest. It is the case of the prosecution that they had done so, without the permission of the authorities. Hence, if the video footage was of a period before 2001, it would necessarily follow that the proceedings, which were initiated in the year 2004, was well beyond three years from the date of such filing. In which event, the bar under Section 468 of the Cr.PC would clearly apply. Hence, it cannot be said that the complaint was maintainable or any further proceedings could be taken on that foundation.

Accordingly, the petitions are allowed. The impugned proceedings in the respective petitions stand quashed.