1988 INSC 0603 State of Bihar Vs Murad Ali Khan and Others Criminal Appeals Nos. 551-553 of 1988 (M. N. Venkatachaliah, Ranganath Misra JJ) 10.10.1988 JUDGMENT VENKATACHALIAH, J.- 1. SLP No. 1879 of 1987 is by the State of Bihar for special leave under Article 136 of the Commission to appeal from the order dated February 13, 1987 of the High Court of Patna in Cri. Misc. No. 223 of 1987 quashing in exercise of powers under Section 482 of Code of Criminal Procedure, 1973, the order dated July 1, 1986 of the Judicial Magistrate, Chaibasa, taking cognizance of an offence under Section 9 (1) read with Section 51 of the Wild Life (Protection) Act, 1972 (Act) against respondent. Vikram Singh. 2. Special Leave Petition Nos. 1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar order both dated February 18, 1987 in Criminal Miscellaneous No. 258 of 1987 (R) and 259 of 1987 (R) of the High Court quashing the same common order of the said Magistrate dated July 1, 1986 against two other accused, namely, Murad Ali Khan and Faruq Salauddin who are respondents in these two special leave petitions. 3. 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. Chitale and Shri R. F. Nariman for the respondents. 4. The accusation against the three respondents is that on June 8, 1986 at 2 p.m. they along with two others named in the complin, shot and killed an elephant in compartment No. 13 of the Kundurugutu Range Forest and removed the ivory tusks of the elephant. On June 25, 1986 the Range Officer of forest of that range lodged a written complaint with the Judicial Magistrate, First Class, Chaibasa, in this behalf alleging offences against respondents under Section 51 of the Wild Life (Protection) Act 1972. The learned Magistrate took cognisance of this offence and ordered issue of process to the accused. 5. It would appear that at the Police State, Sonua, a case had been registered under Sections 447, 429 and 379 IPC read with Section 54 and 39 of the Wild Life (Protection) Act, 1972 and that the matter was under investigation by the police. The respondents, who were amongst the accused, moved the High Court under Section 482 CrPC for quashing of the order of the Magistrate taking cognisance of the alleged offence and issuing summons. The High Court was persuaded to the view that this was a case to which Section 210 (1) of the Code of Criminal Procedure, 1973 was attracted and that as an investigation by the police was in progress on relation to the same offence the learned Magistrate would be required to stay the proceedings on the complaint and call for a report in the matter form the police; and that the learned Magistrate acted without jurisdiction in taking cognizance of the offence and ordering issue of process against the accused. The High Court, accordingly, quashed the proceedings against the respondents. 6. From the orders under appeal it would appear that two grounds commended themselves for acceptance to the High Court. The first was that the learned Magistrate acted contrary to the provisions of Section 210. The High Court observed : The investigation is still continuing and pending insofar as the petitioner is concerned and the investigation shall continue. Obviously the Judicial Magistrate acted beyond jurisdiction in taking cognizance against he petitioner when for the same allegation the investigation was proceeding and pending. He acted contrary to the provisions of Section 210 of the Code of Criminal Procedure. The complaint was filed after long delay.... 7. The second ground was on the merits of the complaint. The High Court, inter alia, observed : On the face of the complaint petition of the first information report itself the facts alleged do not constitute the offence. The petitioner was never named in the first information report. The is not eye-witness in this case and there is no identification of the petitioner in any manner whatsoever to sustain the allegation even prima facie for the offence alleged. 8. On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High Court is in supportable. 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 been 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 to mankind that go with the deterioration of environment. The tragedy of the predicament of the civilised man is that "Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee". In his foreword to International Wild Life Law, H. R. H. Prince Philip, the Duke of Edinburgh said : Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that.... ... As usual with all legal system, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented. Regretfully progress in this direction is proving disastrously slow..... 9. There have been a series of international conventions for the preservation and protection of the environment. The United Nations General Assembly adopted on October 29, 1982 "The world charter for nature". The Charter declares the Awareness that : (a) Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. (b) Civilisation is rooted in nature, which has shaped human culture and influenced all artistic achievement, and living in harmony with nature gives man the best opportunities of the development of his creativity, and for rest and recreation. 10. In the third century B. C. King Asoka issued a decree that "has a particularly contemporary ring" in the matter of preservation of wild life and environment. Towards the end of his reign, he wrote : Twenty-six years after my coronation, I declared that the following animals were not to be killed : parrots, mynas, the aruna, ruddy geese, wild geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses.. and all quadrupeds which are not useful or edible... Forests must not be burned. Environmentalists' conception of the ecological balance in nature is based on the fundamental concept that nature is "a series of complex biotic communities of which a man is an interdependant part" and that it should not be given to a part to trespass 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. 11. We might now turn to certain provisions of the Act Section 9 (1) of the Act says that no person shall "hunt" any wild animal specified in Schedule I. Elephant is included in Schedule I. The expression "wild animal" is defined in Section 2 (36) to mean "any animal found wild in nature and includes any animal specified in Schedule I" etc. The expression "hunting" is defined in Section 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 birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles; 12. Section 51 of the Act provides for penalties. Violation of Section 9(1) is an offence under Section 51(1). Section 55 deals with cognizance of offences : 55. No court shall take cognizance of any offence against this Act except on the complain of the Chief Wild Life Warden or such other officer as the State Government may authorise in this behalf. 13. What emerge from a perusal of these provisions is that cognizance of an offence under the "Act" can be taken by a court only on the complain of the officer mentioned in Section 55. The person who lodged complaint dated June 23, 1986 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210 (1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognisance of the same offence more than once. But, where, as here, cognisance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognisance more than once and, accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is insupportable. 14. The second ground takes into consideration the merits of the matter. It cannot be said that the complaint does not spell out the ingredients of the offence alleged. A complaint only means any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person, whether known or unknown, has committed an offence. 15. It is trite that jurisdiction under Section 482 CrPC, which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Curt should not embark upon tan enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though 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 called upon the 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 i 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. 16. In Municipal Corporation of Delhi v. R. K. Rohtagi it is reiterated : [SCC p. 6 : SCC (Cri) p. 120, para 10] It is, therefore, manifestly clear that proceedings against tan 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 substracting anything if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. 17. In Municipal Corporation of Delhi v. P. D. Jhunjunwala it was further made clear : [SCC p. 10 : SCC (Cri) p. 124, para 5] As to what would be the evidence against the respondents is not a mater to be considered at this stage and would have to be proved at the trial. We have already held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further. 18. In the complaint No. 653 dated June 23, 1986 of the Range Officer, Forests, it is inter alia, alleged : I have to report than on June 8, 1986 at about 2 p.m. I learnt from Sri Aghnu Mahto, Forester, Jomatai Beat, that somebody has killed an elephant in compartment No. 13 of Kundurugutu Reserve Forest. The matter was serious and so I immediately reported it to officer-in-charge, Sonua Police Station to register a case and for investigation. It was further reported that Jiwan Mesi Longa, Coupe Overseer, Jomtal beat has (been) seen the accused persons entering into the forest during the nighttime and had returned on the same jeep No. BRX 9588 at about 8 or 9 a.m. He could identify only Shri Prabhu Sahay Bhengra in the jeep, who was the driver of Block Development Officer, Bandgaon. During my enquiry I visited the spot and dug out the body of the elephant and found that both of the tusks had been extracted out, fro the mouth of the elephant. It was also learned from the admission of the accused Prabhu Sahay Bhengra, who was interrogated by me during the course of enquiry, that the elephant was killed in the early morging of June 1, 1986 before dawn i.e. on June 1, 1986 by him and (1) Shri Abraham Bhengra (2) Shri Murad Ali Khan (3) Shri Vikram Singh (4) Shri Farukh Salauddin (5) Shri Babu Khan (name above) by two rifles and had used 6 round of bullets. On the spot two empty cartridges were found and I picked them up and produced them before the officer-in-charge, Sonua Police Station for needful. Shri Prabhu Sahay Bhengra had also admitted before me that he had kept one tusk with him and other tusk was taken away by Murad Ali Khan and his associates. Later one of the tusks was produced by Shri Prabhu Sahay Bhengra to the officer-in-charge, Sonua Police Station in my presence. On the basis of the information received from Bhengra I immediately proceeded to Jamshedpur with DSP, Chakardharpur and the DFO, Pornahat Division. Shri Murad Ali Khan and his Associates, Shri Babu Khan was interrogated who admitted that they brought one of the tusks and has sent it to Lucknow for disposal. They were brought to Chaibasa with jeep No. BRX 9588 and they were handed over in the custody of the SP Singhbhum, Chaibasa, for needful. Shri Murad Ali Khan promised to produce the tusk in a few days time but did not disclose the place where he had sent the tusk at Lucknow..... The complaint further proceeds to say that elephant is included in the Schedule I of the Wild Life (Protection) At, 1972, and that the complaint was authorised by the Bihar Government's notification No. SO-1022/418/73 to file complains under the Act. 19. It is difficult to agree with the High Court that the allegations in the complaint, taken at their face value, would not amount in law to any offence against the "Act". 20. 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 Section 482, CrPC. 21. It was, however, suggested for the respondent that the offence envisaged by Section 9 (1) read with Section 2 (16) and Section 50 (1) of the Act, in its ingredients and content, is the same or substantially the same as Section 429. IPC and that after due investigation the police had filed a final report that no offence was made out and that initiation of any fresh proceedings against respondents would be impermissible. Section 429. IPC, which occurs in the chapter "Of mischief" provides : 429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees. - Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. 22. The offence of hunting any wild animal as defined in Section 9 (1) read with Section 2 (16) of the Act is much wider. 23. Section 56 of the 'Act' provides : 56. Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for any act or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act : Provided that no person shall be punished twice for the same offence. 24. We are unable to accept the contention of Shri R. F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429, IPC on the one hand and Section 9 (1) read with Section 50 (1) of the Act on the other and therefore constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression "any act or omission which constitutes any offence under this "Act" in Section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. 25. The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutary principles that permeate penology and reflected in analogous provisions of Section 26 of General Clauses Act, 1897; Section 71 IPC; Section 300 of the CrPC 1973, and constitutionally guaranteed under Article 20 (2) of the Constitution. Section 26 of the General Clauses Act, 1897 provides : 26. Provision as to offences punishable under 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 fro the same offence. 26. 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 Article 20 (2). But difficulties arise 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 behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if "each provision requires proof of an additional fact which the other does not" (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States). 27. The expression "the same offence", "substantially the same offence" "in effect the same offence" or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of "same offence". Friedland in Double Jeopardy (Oxford 1969) says at page 108 : The trouble with this approach is that is is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impression of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are 'substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible... 28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said : (SCR p. 827) The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. 29. In State of Madhya Pradesh v. Veereshwar Rao Agnihotry the accused was tried by the Special Judge for offences under Section 409 IPC, and Section 5 (2) of the Prevention of Corruption Act, 1947. While convicting him under Section 409, IPC, the Special Judge held that the accused not be tried under Section 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 Section 409 IPC, applying the doctrine of autrefois acquit holding that the Special Judge's finding on the charge under Section 5 (2) amounted to an acquittal and that punishment as a charge under Section 409, would be impermissible. This Court following the pronouncement in Om Prakash Gupta v. State of U. P. held that the two offences were distinct and separate offences. 30. In State of Bombay v. S. L. Apte, the question that fell for consideration was that in view of earlier conviction and sentence under Section 409, IPC a subsequent prosecution for an offence under Section 105 of Insurance Act, 1935, was barred by Section 26 of the General Clauses Act and Article 20 (2) of the Constitution. The Court observed : (SCR pp. 114 and 118) To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence". The crucial requirement therefore for attracting the article is that the offences are the same, i. e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out...... ..... Though Section 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments". the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. 31. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law. The observations of this Court made in the context of Section 2 (3) of Contempt of Court Act might usefully be recalled. In Bathina Ramakrishna Reddy v. State of Madras this Court examined the contention that the publication of an article attributing corruption to a judicial officer was not cognizable in contempt jurisdiction by virtue of Section 2 (3) of the Contempts of Courts Act, 1953, which provided that : No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. 32. The contention before this Court was that the allegations made in the article constituted an offence under Section 499 of IPC and, that therefore, cognizance of such offence under the Contempts of Courts Act was barred. Repelling the contention, Mukherjea, J. said : (SCR p. 429) In our opinion, the sub-section referred to above excludes the jurisdiction of High Court 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 "where the act alleged to constitute such contempt is an offence". 33. 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 Section 429, IPC even assuming that the two offences are substantially "the same offence". Suffice it to notice, prima facie, that the ingredients of an offence under Section 9 (1) read with Section 50 (1) of the Act require for its establishment certain ingredients which are not part of the offence under Section 429 and vice versa. 34. In the result, these appeals are allowed, the orders of the High Court in Cri. Misc. No. 223 of 1987 dated February 13, 1987 and the two orders in Cri. Misc. No. 258 of 1987 (R) and Cri. Misc. No. 259 of 1987 (R) dated February 18, 1987 are set aside and the order dated July 1, 1987 of the learned Magistrate taking cognizance of the offence and ordering issue of summons to the respondents is restored. The criminal case initiated on the complaint will now be proceeded with in accordance with law.