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SUPREME COURT OF INDIA
Ranganath Misra and
M.N. Venkatachaliah, JJ.
State of Bihar - Appellant
versus
Murad Ali Khan, Farukh Salauddin
and Vikram Singh - Respondents
Criminal Appeal Nos. 551-553 of 1988,
(Arising out of Special Leave Petition
Nos. 1877, 1878 and 1879 of 1987)
Decided on 10-10-1988
Held, 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 cognizance 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 cognizance more than once and, accordingly, section 210 has no role to play. (Para 5)
(ii) Constitution of India-Article 20(2) Indian Penal Code, 1860-Section 429-Wild Life Protection Act, 1972-Section 9(1) r/w s. 50(1)-Same Offence - Meaning of the expression-Ingredients of an offence u/s. 9(1) r/w s. 50(1) of the Act require for its establishment certain ingredients which are not part of the offence u/s429 and vice-versa. (Para 8)
(iii) Criminal Procedure Code, 1973-Section 482 - "Inherent powers of High Court Jurisdiction 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 -Should be exercised sparingly and with circumspection - When the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence-Rules to regulate that jurisdiction. (Para 6)
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 u/s. 482 of Code of Crl. Procedure 1973, the order dated 1.7.1986 of the Judicial Magistrate, Chaibasa, taking cognizance of an offence under Section 9(1) read with sec. 51 of the Wild Life Protection Act, 1972 (Act) against respondent-Vikram Singh.
Special Leave Petition Nos. 1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar orders both dated 18.2.1987 in Criminal Misc No. 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 Farukh Salauddin who are respondents in these two Special Leave Petitions.
2. Social leave was granted an9 the three appeals were taken up for final hearing, beard and disposed of by this common judgment. We have heard Shri M.P. Jila, 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 86.1986 at 200 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 alleges offences against respondents under Section 51 of the Wild Life Protection Act, 1972. The learned Magistrate took cognizance 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 sections 447,429 arid 379 IPC read with sec. 54 and 39 of the Wild Life Protection Act, 1972 and that the mater was under investigation by the police. The respondents, who were amongst the accused, moved the High Court under sec. 482 Cr. PC for quashing of order of the Magistrate taking cognizance 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 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 case for a report in the matter from the police: and that the learned Magistrate acted without jurisdiction he taking cognizance of the offence and ordering issue of processing 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 sec. 210. The High Court observed:
"The investigation is still continuing and pending in 50 far as the petitioner is concerned and the investigation shall continue. Obviously the Judicial Magistrate acted beyond jurisdiction in taking cognizance against the 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."
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 what never 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
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