Point of Law : If something of the nature included under the term “hunting” has been done by a person without mens rea, the punishment cannot be imposed under Section 51 of the Act.

ORDER :

The petitioners are accused in O.R. No.3/2019 of Social Forestry Range, Ernakulam registered for offences punishable under Sections 9 and 51 of the Wild Life (Protection) Act 1972 (for short ‘the Act’) and Rule 9 of the Kerala Captive Elephant (Management & Maintenance) Rules 2012 (for short, ‘the Rules’) r/w Section 64 of the Act. Certified copy of the FIR laid in O.R.No.3/2019 is produced alongwith as Annexure A1. The final report laid in O.R.No.3/2019 is taken cognizance of by Judicial First Class Magistrate Court -III, Perumbavoor and C.C. No.85/2020 was registered on its file.

2. The driver of the vehicle used for transportation of the captive elephant, it’s 1st and 2nd mahouts and the owner of the elephant were arrayed respectively as accused Nos. 1 to 4 in CC No.85/2020.

3. The allegation of the prosecution was that on 14.04.2019, after boarding a captive elephant in a lorry bearing Registration No. KL-08-C-7677, for transporting it to it’s habitat, due to careless and negligent driving of the vehicle into the premises of a petrol pump situated at Tripunithura, the forehead of the elephant touched at the roof of the petrol pump and thereby it sustained injuries. In the context, the accused was alleged as committed the offences for which the crime stands registered against him and final report stands laid against him.

4. The vehicle was taken into custody from the property belonging to one Mr. Surendran at Amballoor, Thrissur. A scene mahazar was also prepared, certified copy of which is produced alongwith as Annexure A2. Accused 1 to 4 had given statements before the investigating officer and those given by them are produced alongwith respectively as Annexures A3 to A6.

5. It was urged by Sri. Nirmal. S., the learned counsel that the offences for which the petitioners were arrayed as accused will not be attracted prima facie from the allegations. According to him, primarily, the offence alleged as committed by petitioners is one under Section 9 of the Act which provides that a person shall not hunt any wild animal specified in Schedules I, II, III and IV except as provided in Sections 11 and 12 or in other words, what is drawn from the provision was that hunting of a wild animal can only be in accordance with Section 11 and 12 of the Act. According to the learned counsel, the petitioners have not violated Section 48(A) of the Act or Rule 9 of the Rules. The petitioners have also complied with the duties and responsibilities under Rule 8 of the Rules. It was contended that the ingredients of the offences alleged against the petitioners are prima facie attracted from the allegations. It was canvassed by the learned counsel that the continuation of the prosecution against the petitioners on the basis of the final report (Annexure A1) would only be an abuse of the process of court.

6. The learned Public Prosecutor was directed to obtain instructions from the Investigating Officer and to file a report in the matter. A report is found filed as directed. In the report it was stated that the statements of accused 1 to 4 and the description in scene mahazar, indicate that elephant was badly injured due to negligence of the lorry driver and the mahouts accompanying it. On the basis it was contended by the learned Public Prosecutor that proper precautions were not taken by the owner of the elephant, while transporting it in the vehicle.

7. Section 9 of the Act prohibits hunting. Therefore, it is relevant to have an idea of the definitions of hunting as found under Sub-section (16) of Section 2 of the Act.

“2(16)“hunting”, with its grammatical variations and cognate expressions, includes,— 16[(a) killing or poisoning of any wild animal or captive animal and every attempt to do so;

(b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so;]

(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