Supreme Court of India
TITTY ALIAS GEORGE KURIAN versus THE DEPUTY RANGE FOREST OFFICER REVIEW PETITION (CRIMINAL) NO. 593 OF 2018 IN on 9 December 2020
[2020] 13 S.C.R.
TITTY ALIAS GEORGE KURIAN
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v.
THE DEPUTY RANGE FOREST OFFICERReview Petition (Criminal) No. 593 of 2018
In
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(Criminal Appeal No. 758 of 2018)
DECEMBER 09, 2020
[ASHOK BHUSHAN AND INDU MALHOTRA, JJ]
CWild Life (Protection) Act, 1972 – ss.2, 9, 11, 12, 39A, 49A,51; Part II of Schedule I – Turtle seized from respondent – Criminalproceedings quashed by High Court – Held: Judgment dtd.16.05.18recalled – s.9 prohibits hunting of any wild animal under ScheduleI, II, III and IV except as provided u/ss.11 and 12 – On facts, Turtleseized is not included in Part II, Schedule I and it was already freedDon the second day of its seizure thus, the High Court committed noerror in quashing the criminal proceedings – Code of CriminalProcedure, 1973 – s.482.
Allowing the review petition and dismissing the appeal, theCourtE
HELD: Section 9 of the Wild Life (Protection) Act, 1972prohibits hunting of any wild animal under Schedule I, II, III andIV except as provided under Sections 11 and 12. In case a personhunts any of the wild animals which are included in Schedule I toIV, it becomes an offence inviting the penalty under Section 51 ofFthe Act, 1972. A perusal of the letter given by the VeterinarySurgeon indicates that Veterinary Surgeon has identified theTurtle as ‘Indian Flap Shell (Lissemy’s Punctata)’ whereas theTurtle which is included in Part II of Schedule I of the Act, 1972is “Indian Soft-shelled Turtle (Lissemys punctata punctata).”GLissemys punctata is a species of which Lissemys punctata isinfraspecies. Although Lissemys punctata is included in Part IIof Schedule I of the Act, however, the Turtle which has beenseized is not that which is included in Part II of Schedule I. In thefacts of the present case, on the face of it, the Turtle seized is notincluded in Schedule I Part II and the Turtle having already beenH
freed on the second day of its seizure, the High Court did notcommit any error in quashing the criminal proceedings registeredfor Wild Life offences. No good ground found to interfere withthe order of the High Court. [Paras 12-14][1233-H; 1234-A-D]
CRIMINAL APPELLATE JURISDICTION: Review Petition(Criminal) No. 593 of 2018 in Criminal Appeal No. 758 of 2018.
From the Judgment and Order dated 16.05.2018 of the SupremeCourt of India in Criminal Appeal No. 758 of 2018.
Abhilash M.R., Mohammed Sadique T.A., Nishe Rajen Shonker,Advs. for the appearing parties.
The Judgment of the Court was delivered by ASHOK BHUSHAN, J.
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1. We have heard Shri Abhilash M.R., learned counsel appearingfor the petitioner and Shri Nishe Rajen Shonker, learned counsel for therespondent.
2. We find sufficient ground to review the judgment dated16.05.2018. The order of this Court dated 16.05.2018 is recalled. Thereview petition is allowed.
This appeal has been filed against the judgment dated 16.11.2017of the Kerala High Court by which the High Court has allowed CriminalM.C. No.2720 of 2017 filed by the respondent by quashing proceedingsin C.C. No.706 of 2016. The Deputy Range Forest Officer aggrieved byjudgment of the High Court has come up in this appeal.
4. The facts of the case briefly are:
On 25.07.2016 from the respondent, Titty alias George Kurian aTurtle was seized by Rani Forest Flying Squared Range Staff atKarumbanakulam. The offence under Section 2, 9, 39A, 49A and 51 ofthe Wild Life (Protection) Act, 1972 was registered. A charge-sheetwas submitted by the Forest Officer. After seizure of the Turtle, thesame was sent for identification to Veterinary Surgeon who by its letterdated 26.07.2016 identified the Turtle on inspection as “Indian Flap Shell”,the scientific name is “Lissemys Punctata”. The Court on 27.07.2016directed the Turtle to be freed.
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A5. The respondent-accused filed an application before the HighCourt for quashing the criminal proceedings. It was submitted beforethe High Court that Indian Flap Shell Turtle which was seized was notfound included in Schedule I of Part II of the Wild Life (Protection)Act, 1972, hence, such possession of the Turtle of that species will notinvite the offences alleged against the accused. The High Court beingBsatisfied that Turtle seized was not that species of Turtle which is includedin Part II of Schedule I of the Act, 1972, allowed the application andquashed the criminal proceedings. Aggrieved by the judgment of theHigh Court this appeal has been filed by the Deputy Range Forest Officer.
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6. Learned counsel for the appellant contends that whether IndianCSoft-shelled Turtle (Lissemys punctata punctata) and Indian Flap ShellTurtle (Lissemys puntata) are two different species or part of singlespecies or a subspecies of the latter are matters of expert evidence andought to have been decided only under trial and the High Court committederror in allowing the application under Section 482 Cr.P.C.D7. Learned counsel for the respondent supporting the order of theHigh Court contends that when the Turtle seized does not find mentionin the Schedule of the Wild Life (Protection) Act, 1972, there is nooccasion for registering any offence, and the registration of offenceshas rightly been quashed by the High Court with which no interferenceEis called for. He further submits that Turtle was seized on 25.07.2016and was freed on 27.07.2016 and being not available for furtherexamination the report of the Veterinary Surgeon is only material tolook into and scientific name which was given by the Veterinary Surgeondoes not find place in the Schedule of the Act, 1972.
8. We have considered the submissions of the learned counsel forFthe parties and have perused the records.
9. The following reasons have been given by the High Court forallowing the Criminal M.C. of the respondent:
“4. On a perusal of Part II of Schedule I of the Act, it seems thatGItem No.8 is Indian Soft Shell Turtle (Lissemys PunctataPunctata). The certificate issued by the Senior Veterinary Surgeonto the Range Officer, Erumely in this case shows that the Turtleseized in this case is Indian Flap Shell Turtle (Lissemys Punctata).The above said Schedule does not contain the species named IndianFlap Shell Turtle. When the Turtle in question is not one belongs toH
TITTY ALIAS GEORGE KURIAN v. THE DEPUTY RANGEFOREST OFFICER [ASHOK BHUSHAN, J.]
Indian Soft Shell Turtle, the capture or its possession cannot betreated as an offence within the meaning of the Wild LifeProtection Act. Matters being so, all further proceedings inC.C.No.706/2016 of the Judicial First Class Magistrate’s Court-II, Kanjirappally, based on OR No.5/2016 of the Erumely ForestRange as against the petitioner are liable to be quashed.”
10. After seizure of the Turtle on 25.07.2016 on next day thereference was made by the Deputy Range Officer to Veterinary Surgeonfor identification of the Turtle. The Veterinary Surgeon after inspectionwrote a letter on 26.07.2016 to the Range Officer to the following effect:
“From,
Dr. Anil Kumar T Senior Veterinary SurgeonB.V. Sc & A.H. Veterinary Hospital Reg. No.1329,Erumely.
To
Range Officer Erumely,Erumely.
Subject: Species identificationReference: Deputy Range Officer on 26.07.2016.
As per the above reference on 26.07.2016 a turtle belongingto a turtle family was brought for identification, and on inspectionit is found that the turtle is Indian Flap Shel and the scientificname is “Lissemy’s Punctata” and therefore it is certified.
26-07-2016Erumely”
11. The Veterinary Surgeon identified the Turtle as ‘Indian FlapShell’ and the scientific name “Lissemy’s Punctata”. Item No.8, ScheduleI Part II is to the following effect:
“8. Indian Soft-shelled Turtle (Lissemys punctata punctata).”
12. Section 9 of the Act, 1972 prohibits hunting of any wild animalunder Schedule I, II, III and IV except as provided under Sections 11
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Aand 12. Sections 11 and 12 are the provisions where hunting is permittedby the permission of Chief Wild Life Warden. In case a person huntsany of the wild animals which are included in Schedule I to IV, it becomesan offence inviting the penalty under Section 51 of the Act, 1972.
13. A perusal of the letter given by the Veterinary Surgeon asBextracted above indicates that Veterinary Surgeon has identified the Turtleas ‘Indian Flap Shell (Lissemy’s Punctata)’ whereas the Turtle which isincluded in Part II of Schedule I of the Act, 1972 is “Indian Soft-shelledTurtle (Lissemys punctata punctata).” Lissemys punctata is a species ofwhich Lissemys punctata is infraspecies. Although Lissemys punctata isincluded in Part II of Schedule I of the Act, however, the Turtle whichChas been seized is not that which is included in Part II of Schedule I. Inthe facts of the present case, on the face of it, the Turtle seized is notincluded in Schedule I Part II and the Turtle having already been freedon the second day of its seizure, the High Court did not commit any errorin quashing the criminal proceedings registered for Wild Life offences.
D14. We do not find good ground to interfere with the order of theHigh Court by which the High Court has exercised its jurisdiction underSection 482 Cr.P.C. On the facts of the present case, the appeal isdismissed.
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Divya Pandey
Appeal dismissed and Review Petition allowed.
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