Cognizance must not be taken mechanically; the court must verify allegations against valid legal provisions to avoid wrongful prosecution.

ORDER :

P. V. KUNHIKRISHNAN, J.

Petitioners are accused in O.R.No.8/2014 of Olavakode Forest Range. Annexure-A1 is the charge sheet in Form-II submitted by the Range Forest Officer, Olavakode against the petitioners. The offences alleged in Annexure-A1 are under “A(17)” of the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 (for short, ‘the Rules 2012’) and under Sections 51 and 52 of the Wildlife Protection Act, 1972 (for short, the Act 1972).

2. The allegation against the petitioners is that, they have conducted ‘Gaja Sangamom’ by engaging several elephants without obtaining sanction from the authorities. According to the petitioners, even if the entire allegations are accepted, no offence is attracted.

3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.

4. While taking cognizance based on a complaint or charge sheet, the Court has to apply its mind. It is not a mechanical process. What is stated in the final report or complaint cannot be blindly accepted by the Court. While taking cognizance, the offences alleged are to be verified by the Court and whether taking cognizance for the offences alleged as per law is permissible is also to be decided at that stage.

5. In this case, in Annexure-A1, the offences alleged are under “A(17)” of the Rules 2012 and under Sections 51 and 52 of the Act 1972. This Court perused the entire Rules 2012 to find out the provision “A(17)” in it. There is no such provision in the Rules 2012. The learned Magistrate who took cognizance based on Annexure-A1 also recorded that the case is taken on file for the offences under “A(17)” of the Rules 2012 and Sections 52 and 51 of the Act 1972.

6. The order taking cognizance by the learned Magistrate would show that the learned Magistrate mechanically recorded the provisions contained in Annexure-A1 even without verifying the Rules 2012. Such a mechanical process from a court of law is to be deprecated. A court of law has to proceed in accordance with the law even if wrong Sections are noted in the final report, complaint, etc. Taking cognizance based on a final report or complaint is solemn function because a person is directed to be summoned to a court of law. The mechanical process of adopting the final report will lead to serious consequences. This is a best example in which the learned Magistrate took cognizance of the offence in a mechanical manner under “A(17)” of the Rules 2012 when there is no such provision in the Rules 2012. For that simple reason itself, the order taking cognizance is to be set aside. The court taking cognizance is not a rubber stamp of the investigating agency or the complainant. While taking cognizance the court should apply its mind and find out whether facts constitute the offence. A court of law replicating the provisions mentioned in the final report, complaint etc while taking cognizance will lead to serious consequences. Therefore the Registrar (District Judiciary) shall forward a copy of this order to all Principal District Judges in the state who will circulate this to all courts concerned.

7. Coming back to the facts of this case, the other offences alleged in Annexure A1 are under Sections 51 and 52 of the Act 1972. Sections 51 and 52 are the Sections quoted in Annexure-A1 and in the order taking cognizance. Section 51 says about the penalties for the violation of the Act, Rules, licence, or permit granted as per the Act 1972. Section 52 of Act 1972 says about the attempts and abetment. It is stated that whoever attempts to contravene, or abets the contravention of, any of the provisions