Sri Satyabrata Majhi v. State Of Orissa

1. The petitioner has come up with this petition Under Section 482, Cr.P.C. to quash the proceeding of 2(b) C.C. No. 1 of 1999 of the Court of JMFC (Paradeep), Kujanga and the order (Annexure-5) passed in the said proceeding on 11.2.1999 refusing to release the trawler of the petitioner seized in the aforesaid case for an offence Under Section 51 of the Wild Life (Protection) Act, 1972.

2. The petitioner is the owner of the trawler named as 'Mahapurusa' bearing registration No. OCM (T) 207 with Ashok Leyland Engine No. A.L. 11799. He has also been granted with the licence by the A.D.F., Marine, Kujanga under the Orissa Marine Fishing Regulation Act, 1982 for operating the trawler as a fishing vessel. According to the petitioner, while his trawler was engaged in fishing beyond the prohibited area as notified in Schedules-A and B of the notification dated 27.9.1997 (Annexure-1) issued by the State Government in Forest and Environment Department, the Forest Range Officer, Kujanga directed the crewmen to pull out the net from the water and finding that two Olive Ridley Turtles were in the not along with the fishes, seized the trawler and net etc. and arrested the crew members and got some papers signed by them forcibly.

3. A complaint was lodged before the learned JMFC. Kujanga on 28.1.1999 alleging that while patrolling in the mouth of Mahanadi near Nehru Bungalow in the Bay of Bengal, they saw a trawler engaged in fishing operation in the area close to the shore. As the inspecting staff apprehended that the petitioner's men were engaged in netting of sea turtle, they asked the crew men to pull out the net and found two Olive ridley turtles were caught in the net along with the fishes. One of the turtles was dead. So they seized the trawler and the nets etc. for violation of Section 9 of the Wild Life (Protection) Act, 1972 and prepared the seizure list. They kept the seized articles in zima of one forest guard and prayed the Court to proceed against the accused persons Under Section 51 of the Wild Life (Protection) Act. A report was also submitted to the D.F.O. (Mangrove) wherein they alleged that the accused persons were found engaged in fishing 2 K.Ms, away from the shore. The accused persons were latter on released on bail by the learned JMFC, Kujanga. The petitioner filed a petition Under Section 457, Cr.P.C. before the learned JMFC to release the trawler to the custody of the petitioner which has been rejected by the impugned order dated 11.2.1999. The petitioner, therefore, has come up with this petition invoking the inherent jurisdiction of this Court to quash the proceeding and to release the seized trawler.

4. In this case the prayer of the petitioner is to quash the proceeding as well as the impugned order, wherein the learned JMFC has refused to release the seized trawler in favour of the petitioner. Before adverting to record the finding, it is considered expedient to state the laws as laid down by the apex Court relating to the exercise of inherent power Under Section 482, Cr.P.C. or exercise of extraordinary power under Articles 226 of the Constitution, by the High Court.

(a) In R.P Kapur v. State Of Punjab. : AIR I960 Supreme Court 866, the appellant moved the High Court of Punjab Under Section 561A of the Code of Criminal Procedure, 1898 for quashing the proceeding initiated by the first information report in question. During the pendency of that petition before the High Court, police submitted report Under Section 173 of the Code. Subsequently after hearing the parties, the petition was dismissed with the observation that no case has been made out for quashing the proceeding Under Section 561-A. Being aggrieved by the said Court, considering the law laid down in the earlier cases, held as follows :

"............ It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to law down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under the category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction Under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court Under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point........"

In State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. reported in AIR 1992 Supreme Court 604, the apex Court observed as follows :

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Articles 226 or the inherent powers Under section 482 of the code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie 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 cognizable 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 nto 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-cognizable offence, no investigation is permitted by a 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 malaciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

In Rashmi Kumar (Smt) v. Mahesh Kumar Bhada. : (1997) 2 Supreme Court Cases 397 while considering power of High Court to quash the proceeding at initial stage, it has been held :

"The High Court should sparingly and cautiously exercise the power Under section 482 of the code to prevent miscarriage of justice. The High Court would be loath and circumspect to exercise its extraordinary power Under section 482 of the code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court."

The case of the petitioner is considered keeping in view the law laid down by the apex Court and it is found that the case of the petitioner does not come under any of the categories enumerated by the apex Court in Ch. Bhajan Lal case (supra) warranting interference by the High Court in exercise of its inherent power Under Section 482, Cr.P.C. The petitioner's case that the trawler was engaged in fishing operation beyond the prohibited area and that he was holding a licence for operating the trawler cannot be of any help to the petitioner at this stage, as hunting of wild animal specified in Schedules I, II, III and IV, except as provided Under Sections 11 and 12, is prohibited Under Section 9 of the Wild Life Protection Act, 1972 (hereinafter referred to as 'the Act') irrespective of the fact whether it is hunted within or beyond the prohibited area.

The learned counsel for the petitioner submits that Olive Ridley Turtles are not covered under serials 11, 12 and 13 of Schedule-II of the Act, and as such, hunting thereof may not amount to violation of Section 9 of the Act bringing criminal liability. It is noticed that in serial 13 of Schedule-II the species covered is "Olive Back Logger Head Turtle (Lapidechalys olivacea)" which is commonly known as Olive Ridley Turtles". "Lepidochalys olivacea" is the scientific name of the Olive Ridley Turtle. So, the contention that the Olive Ridley Turtle is not covered under the Schedule-II of the Act is not acceptable.

Now coming to the question, whether the impugned order refusing to release the seized trawler to the custody of the petitioner who is the registered owner of the same, can be interfered with. The learned counsel for the petitioner submitted that there is no bar to release the vessel/ trawler to the custody of the owner during the pendency of the case. The learned Addl. Standing Counsel, on the other hand, submitted that in view of the provisions of Section 39 of the Act, the seized trawler cannot be released in favour of the petitioner, as the same became the State's property as soon as the same is seized.

Section 39 of the Act runs as follows :

(1) Every - (a) wild animal, other than vermin, which is hunted Under Section 11 or Sub-section (1) of Section 29 or Sub-section (6) of Sectin 35 or kept or (bred in captivity or hunted) in contravention of any provision of this Act or any rule or order made thereunder are found dead, or killed by mistake: and

(b) animal articles, trophy or uncured trophy or meat derived from any wild animal referred to in Cl. (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed;

(c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder had been committed;

(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act;

shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal, shall be property of the Central Government.

(2) Any person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining such possession to the nearest police station or the authorised officer and shall, if so required, hand over such property to the officer-in-charge of such police station or such authorised officer, as the case may be.

(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer -

(a) acquire or keep in his possession, custody or control, or

(b) transfer to any person, whether by way of gift, sale or otherwise, or

(c) destroy or damage, such Government property.

In the original Act, Clauses (c) and (d) were not there and the same were incorporated by way of amendment with effect from 2nd October, 1991, Clause (d) of Section 39 lays down that any vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act shall be the property of the Government. The amendment referred to above, clearly lays down that the vessel, that has been used for committing any offence and has been seized under the provisions of the Act, shall be the property of the State. As a consequence of the amendment introduced to Section 39 by incorporating Clauses (c) and (d). Section 50 of the original Act has also been amended taking away the power to return the vehicle, vessels etc. involved in the commission of the offence and seized by the officers. By the amending Act, Sub-section (2) of Section 50 has been omitted. The learned counsel for the petitioner argued that the power Under Section 39 can be exercised only when an order of forfeiture is passed Under Section 51(2) of the Act while convicting the accused, but not otherwise. Acceptance of the above submission, it appears, will defeat the very purpose of carrying out the amendment making the seized vessel the property of the State. The power of releasing the seized vehicle etc. has been expressly removed by omitting Sub-section (2) of Section 50 to ensure that the vehicle which has been seized, should not be returned to the accused. In the above circumstances, no fault can be found with the impugned order refusing to release the vessel/trawler to the custody of the petitioner.

The learned Addl. Standing Counsel also questioned the maintainability of this case. According to him, an order passed Under Section 457, Cr.P.C. is revisable and as such, no petition Under Section 482, Cr.P.C, is maintainable. In order to get over this difficulty, the petitioner has filed a petition to convert the Criminal Misc. Case into Criminal Revision. In view of the petition filed, the objection raised has lost its force.

Accordingly, the Criminal Misc. Case is dismissed.