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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 ..... cused, 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 lodged a written complaint with the Judicial Magistrate, Ist 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. It would appear that at the Police Station. Souna, a case had been registered under sections 447, 429 and 379 IPC read with sec 54 and 39 of the Wild Life Protection Act, 1972 and that the matter was under investigation by the police. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 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 foreward 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 matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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: Sec. 51 of the Act provides for penalties. Violation of sec. 9(1) is an offence under sec. 51(1). Sec. 55 deals with cognizance of offences: "55. No court shall take cognizance of any offence against this Act except on the complaint of the Chief wild Life Warden or such other officer as the State Government may authorise in this behalf." What emerges from a perusal of these provisions is that cognizance of an offence against the "Act" can be taken by a Court only on the complaint of the officer metioned in Sec.55. The person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in exercise of its powers under Section 482 of the present Code." In Municipal Corporation of Delhi v. P.D. Jhunjunwala, [1983] 1 SCR 895 at 897 it was further made clear: " . . . As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further." In the complaint No. 653 dated 23.6.1986 of the Range Officer, F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 any fresh proceedings against respondents would be impermissible. Sec. 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultiple 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 requires proof of an additional fact which the other does not" Blockburger v. United States, 284 U.S. 299, 304 1932 Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes. The offenses must be Joined in one indictment and tried together unless the defendant requests that they be tried separately. Jeffers v. United States, 432 U.S. 137 1977." [See "Double Jeoparady" in the Encyclopedia of Crime and Justice vol. ', p. 630 1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. This Court observed: "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 same7 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 ..... 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