Puttalingaiah vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant. The appellant was accused of offences punishable under Sections 2, 3, 4, 5, 9, 39 and 51 of the Wild Life (Protection) Act, 1972 (Hereinafter referred to as the ''WLP Act'', for brevity) and Sections 39 and 44 of the Indian Electricity Act, 1910 (Hereinafter referred to as the TE Act'', for brevity).

It is the case of the prosecution that on the night of 15.6.2001, a female elephant was found dead after having come into contact with a live wire fencing, which was installed around the land of the accused, bearing Survey No. 169/8 of Hondarabalu Village, Chamarajanagar Taluk and therefore, the appellant had committed an offence under Section 9 punishable under Section 51 of the WLP Act. It was further alleged that the accused had also committed theft of electrical energy by abstracting power from the primary line, which was connected to the fence around his land and hence he had also committed an offence punishable under Section 39 of the IE Act. In this regard, a charge sheet having been filed for the aforesaid offences and the appellant having claimed to be not guilty and having claimed to be tried, the prosecution had examined ten witnesses, apart from marking several exhibits and material objects and after recording the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''CrPC, for brevity) had framed the following points for its consideration:-

"1. Whether the prosecution proves the charges leveled against the accused beyond reasonable doubt"

The court below held the above point in the affirmative and convicted and sentenced the accused to undergo imprisonment for 1 year and to pay a fine of Rs. 5,000/- for the offence under Section 9 of the WLP Act and was sentenced to undergo simple imprisonment for three months for the offence punishable under Section 39 of the IE Act It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would contend that the allegations against the accused were two-fold, namely, firstly, that he had caused the death of a female elephant illegally electrifying the fence around his land and secondly, that he had illegally abstracted electrical energy and had connected the same to the fence around his land and therefore had committed the offence punishable under the IE Act. It is pointed out that these two offences have been tried together, whereas the procedure prescribed in respect of an offence punishable under Section 9 of the WLP Act is that there ought to be a complaint and the court shall not take cognizance otherwise than on a complaint and hence in the absence of that procedure having been followed, the prosecution and conviction of the appellant for the offence punishable under Section 9 of the WLP Act is invalid and bad in law and hence, the conviction cannot be sustained. It is secondly contended that insofar as the offence punishable under the IE Act is concerned, the installation through which electrical energy was sought to be illegally abstracted was in the name of the appellant''s father, who was the consumer and the appellant''s father, who was alive as on the date of the alleged incident, was never named as the accused. The prosecution, if any, can proceed only against the consumer named in the records of the department.

The learned Counsel would point out that the appellant has produced the relevant records to demonstrate that not only the land, but also the installation stood in the name of his father and further that he was alive as on the date of the registration of the case and there being no explanation put-forth as to how the accused could be prosecuted and the prosecution having been launched against the appellant is bad in law and cannot be sustained.

Thirdly, it is stated that the allegations against the appellant being under two different legislations, each prescribing a different procedure for enforcement, the prosecution having chosen to bring a single complaint, while adopting a procedure, which is inconsistent with one of the acts, leads to an incongruity and could not have been entertained and would therefore have to fail on that ground as well. In that, as already pointed out, the prosecution for an offence punishable under the provisions of the WLP Act prescribes a procedure where there ought to be complaint lodged before the Magistrate for him to take cognizance. While it is not so for an offence under the provisions of the IE Act. Hence, a single charge sheet having been filed for the said offences and trial having been conducted, as if there was no difference in the procedure, results in an illegality and would vitiate the proceedings.

Though the learned State Public Prosecutor would seek to counter these legal contentions, from an examination of the record and the relevant legal provisions, it is evident that the procedure prescribed under WLP Act and the procedure for prosecution of an offence under the provisions of the IE Act are not the same and hence the proceedings could not have been initiated, as if the procedure is consistent under the two acts.

Though it is possible to initiate proceedings independently, under both the legislations, whether the same could be done in one single proceeding would have to be answered in the negative. Further, insofar as the offence punishable under the IE Act is concerned, from the material on record, it is evident that the land as well as the installation were shown in the name of the father of the appellant, who was alive as on the date of the alleged commission of the offence. Therefore, it cannot be said that the prosecution was justified in proceeding against the appellant herein. In that, there was no material to disclose that the appellant was acting as an agent or in his own capacity to answer to the accusations. Hence, the proceedings can also be said to be bad under the provisions of the IE Act for the above infirmity.

Consequently, the appeal is allowed. The judgment of the court below is set aside. The appellant is acquitted. The fine amount, if any, paid shall be refunded to the appellant. The bail bond stands cancelled.