M.S. Arun v. Forest Range Officer, Wadakanchery, Thrissur District and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** ## **Crl.MC.No. 8729 of 2018** **AGAINST THE ORDER/JUDGMENT IN CC 502/2012 of J.M.F.C., KUNNAMKULAM** **CRIME NO. 10/2010 OF ERUMAPPETTY FOREST STATION OFFICE, THRISSUR** ## **PETITIONER/S:** **M.S.ARUN, AGED 28 YEARS, S/O M.R.SASIKUMAR, MULANTHANATH HOUSE, CHANNANIKKAD P.O., KOTTAYAM-686533** **BY ADVS. SRI.SIVARAM SRI.SHANKAR V.** ## **RESPONDENT/S:** - **1 THE FOREST RANGE OFFICER, WADAKANCHERY,THRISSUR DISTRICT-680 582** - **2 THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,KOCHI 682 031.** ## **OTHER PRESENT:** **SRI.RAVIKRISHNA, SPL.PUBLIC PROSECUTOR,FOREST** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 8729 of 2018** -2- ## **ORDER** **The petitioner is the first accused in C.C.No.502 of 2012 on the files of the court below.** **2. The prosecution allegation that on 21.11.2010, the petitioner and the other accused brought the elephant for the festival of Karthyayini Devi Temple in Kizhoor without having inter district travel permission from the Divisional Forest Officer concerned. It is further alleged that the petitioner and the other accused did not submit the details of the programme to the Range Officer having jurisdiction over the area.** ## **Crl.MC.No. 8729 of 2018** **3. The petitioner has filed this Crl.M.C. praying for quashing Annexure-1 complaint and further proceedings against the petitioner in the above said case. 4. Heard.** **5. The offences alleged are the offences under Rule 5(5), 10 and 12(x) of the Kerala Captive Elephant (Management and Maintenance) Rules, 2003 (in short, 'the** **Rules') punishable under Section 51 of Wildlife Protection Act 1972 (in short, the Act). Rule 5(5) of the Rules provides that the organizers of festivals where elephants are used shall submit in writing the programmes with details to the Station House** ## **Crl.MC.No. 8729 of 2018** **Officer and the Range Officer having jurisdiction over the area, who in turn shall ensure the implementation of the provisions in the Rules. The violation of the provisions under Rule 5(5) of the Rules can be alleged only against the organizers of the festival and not against the owner of the elephant. There is absolutely no allegation in the complaint with regard to the violation of Rule 10 and Rule 12(x) of the Rules. Since the petitioner is not the organizer of the festival, no prosecution against the petitioner under Rule 5(5) of the Rules r/w Section 51 of the Act can be maintained. There is no material or** ## **Crl.MC.No. 8729 of 2018** -5- **allegation with regard to the violation of Rules 10 and 12(x) of the Rules and hence prosecution for the violation of the said Rules punishable under Section 51 of the Act cannot be also maintained. For the said reason, no purpose will be served even if the prosecution against the petitioner is permitted to be continued.** **6. It is also to be noted that the Kerala Captive Elephant (Management and Maintenance) Rules, 2003 had been amended as per SRO No.870/2012 and the Kerala Captive Elephant (Management and Maintenance) Rules 2012 had been enacted. The Constitutional Bench of the Apex Court in Messrs Rayala** ## **Crl.MC.No. 8729 of 2018** -6- **Corporation (P) Ltd. and M.R.Pratap v. Director of Enforcement, New Delhi (AIR 1970 SC 494) held that Section 6 of the General Clauses Act would apply only when the repeal is of a Central Act or Regulation and not of a Rule. Another Constitutional Bench of the Apex Court in Kolhapur Canesugar Works Ltd. and Another v. Union of India and Others (AIR 2000 SC 811) quoted** **the decision in Rayala Corporation (supra) with approval and held that Section 6 of the General Clauses Act is applicable where any Central Act or Regulation made after the commencement of the General Clauses Act repeals any enactment and it is not** ## **Crl.MC.No. 8729 of 2018** -7- **applicable in the case of omission of a Rule. The Apex Court in Fiber Boards Pvt. Ltd. Bangalore v. Commissioner of Income Tax, Bangalore [2015 KHC 4513 : 2015(10) SCC 333] held that the principle enunciated by the Constitution Bench in Rayala Corporation (supra) that Section 6 of the General Clauses Act is not applicable to Rules, is ratio decidendi.** **7. The effect of omission, deletion and repeal and consequent introduction of a new rule is that the old rule under which the prosecution was initiated would cease to exist and thereafter, further proceedings if continued would be without jurisdiction, if** ## **Crl.MC.No. 8729 of 2018** -8- **the notification contains no saving clause. If there is a provision in the notification that the pending proceedings shall continue and be disposed of under the old Rule as if the Rule had not been repealed, then such proceedings will continue. If the case is covered by Section 6 of the General Clauses Act or if there is a pari materia provision in the Statute under which the rule has been framed, the pending proceedings will not be affected by the deletion of the rules. In the absence of any such provision in the Statute or in the rules, the pending proceedings would lapse when the rule under which the proceedings were initiated is** ## **Crl.MC.No. 8729 of 2018** **deleted or repealed.** **8. It is clear from the above ratio that Section 6 of the General Clauses Act is not applicable when a Rule is repealed or deleted. Therefore, no persecution can be instituted even in respect of an Act which was an offence when the Rule was in force if there is no saving provision similar to Section 6 of the General Clauses Act in the notification repealing/deleting the Rules.** **8. In the present case, Section 6 of the General Clauses Act has no application as the Rules alone were repealed. There is no saving provision in favour of pending proceedings in the notification SRO** ## **Crl.MC.No. 8729 of 2018** -10- **No.870/2012 dated 18.12.2012 repealing Kerala Captive Elephant (Management and Maintenance) Rules 2003. The consequence that follows is that the proceedings against the petitioner lapsed from the date of notification. For the said reason also, no prosecution against the petitioner can be maintained.** **9. In view of the above reasons, I am inclined to quash Annexure-1 complaint and further proceedings against the petitioner in C.C.No.502 of 2012 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. It is ordered** ## **Crl.MC.No. 8729 of 2018** -11- **accordingly.** **In the result, this Crl.M.C. stands** **allowed as above.** sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE// ## **Crl.MC.No. 8729 of 2018** -12- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 THE CERTIFIED COPY OF THE FOREST OFFICE CHARGE SHEET ALONG WITH THE MAHAZAR AND THE STATEMENTS GIVEN BY THE OFFICERS FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATES COURT KUNNAMKULAM NUMBERED AS CC NO 502 OF 2012** **ANNEXURE 2 THE TRUE COPY OF THE JUDGMENT DATED 15.11.2018 IN OP (CRL) NO 522 OF 2018 OF THE HONOURABLE HIGH COURT OF KERALA** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **STK**