JUDGMENT

VENKATACHALIAH, J. : — SLP 1879 of 1987 is by the State of Bihar for special leave under Art. 136 of the Constitution to appeal from the order dated 13-2-1987 of the High Court of Patna in Crl. Misc. 223 of 1987 quashing, in exercise of powers under S. 482 of Code of Criminal Procedure 1973, the order dated 1-7-1986 of the Judicial Magistrate, Chaibasa, taking cognizance of an offence under S. 9(1) read with S. 51 of the Wild Life Protection Act, 1972 (Act) against respondent-Vikram Singh.

Special Leave Petitions Nos. 1877 of 1987. and 1878 of 1987 arise out of the subsequent two similar orders both dated 18-2-1987 in Criminal Misc. Nos. 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 8-6-86 at 2.00 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, 1st Class, Chaibasa, in this behalf alleging offences against respondents under S. 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, Sonua, a case had been registered under Ss. 447, 429 and 379, I.P.C. read with Ss. 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 S. 482, Cr. P.C. 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 S. 210(l) of Code of Criminal Procedure, 1973 was attracted and that as an investigation by the police was in progress in 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 from 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.

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 S. 210. The High Court observed :

"The investigation is still continuing and pending in so far as the petitioner is concerned and the investigation shall continue. Obviously the Judicial Magistrate acted beyond jurisdiction in taking cognisance against the petitioner when for the same allegation the investigation was proceeding and pending. He acted contrary to the provisions of S. 210 of the Code of Criminal Procedure. The complaint was filed after long delay ......."

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. There is no 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."

4. On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High Court