Titty Alias George Kurian vs The Deputy Range Forest Officer

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRL.) NO. 593 OF 2018 IN CRIMINAL APPEAL NO.758 OF 2018

TITTY ALIAS GEORGE KURIAN …PETITIONER(S)

VERSUS

THE DEPUTY RANGE FOREST OFFICER …RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

We have heard Shri Abhilash M.R., learned counsel

appearing for the petitioner and Shri Nishe Rajen

Shonker, learned counsel for the respondent.

2. We find sufficient ground to review the judgment

dated 16.05.2018. The order of this Court dated

16.05.2018 is recalled. The review petition is allowed.

Signature Not Verified

3. Digitally signed by Rachna Date: 2020.12.09 This appeal has been filed against the judgment 16:50:26 IST Reason:

dated 16.11.2017 of the Kerala High Court by which the 2

High Court has allowed Criminal M.C. No.2720 of 2017

filed by the respondent by quashing proceedings in C.C.

No.706 of 2016. The Deputy Range Forest Officer

aggrieved by judgment 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 a Turtle was seized by Rani Forest Flying

Squared

Range Staff at Karumbanakulam. The offence under

Section 2, 9, 39A, 49A and 51 of the Wild Life

(Protection) Act, 1972 was registered. A charge-sheet

was submitted by the Forest Officer. After seizure of

the Turtle, the same was sent for identification to

Veterinary Surgeon who by its letter dated 26.07.2016

identified the Turtle on inspection as “Indian Flap

Shell”, the scientific name is “Lissemys Punctata”. The

Court on 27.07.2016 directed the Turtle to be freed.

3 5. The respondent-accused filed an application before

the High Court for quashing the criminal proceedings.

It was submitted before the High Court that Indian Flap

Shell Turtle which was seized was not found included in

Schedule I of Part II of the Wild Life (Protection)

Act, 1972, hence, such possession of the Turtle of that

species will not invite the offences alleged against

the accused. The High Court being satisfied that Turtle

seized was not that species of Turtle which is included

in Part II of Schedule I of the Act, 1972, allowed the

application and quashed the criminal proceedings.

Aggrieved by the judgment of the High Court this appeal

has been filed by the Deputy Range Forest Officer.

6. Learned counsel for the appellant contends that

whether Indian Soft-shelled Turtle (Lissemys punctata

punctata) and Indian Flap Shell Turtle (Lissemys

puntata) are two different species or part of single

species or a subspecies of the latter are matters of

expert evidence and ought to have been decided only 4

under trial and the High Court committed error in

allowing the application under Section 482 Cr.P.C.

7. Learned counsel for the respondent supporting the

order of the High Court contends that when the Turtle

seized does not find mention in the Schedule of the

Wild Life (Protection) Act, 1972, there is no occasion

for registering any offence, and the registration of

offences has rightly been quashed by the High Court

with which no interference is called for. He further

submits that Turtle was seized on 25.07.2016 and was

freed on 27.07.2016 and being not available for further

examination the report of the Veterinary Surgeon is

only material to look into and scientific name which

was given by the Veterinary Surgeon does not find place

in the Schedule of the Act, 1972.

8. We have considered the submissions of the learned

counsel for the parties and have perused the records.

9. The following reasons have been given by the High

Court for allowing the Criminal M.C. of the respondent: 5

“4. On a perusal of Part II of Schedule I of the Act, it seems that Item No.8 is Indian Soft Shell Turtle (Lissemys Punctata Punctata). The certificate issued by the Senior Veterinary Surgeon to the Range Officer, Erumely in this case shows that the Turtle seized in this case is Indian Flap Shell Turtle (Lissemys Punctata). The above said Schedule does not contain the species named Indian Flap Shell Turtle. When the Turtle in question is not one belongs to Indian Soft Shell Turtle, the capture or its possession cannot be treated as an offence within the meaning of the Wild Life Protection Act. Matters being so, all further proceedings in C.C.No.706/2016 of the Judicial First Class Magistrate’s Court-II, Kanjirappally, based on OR No.5/2016 of the Erumely Forest Range as against the petitioner are liable to be quashed.”

10. After seizure of the Turtle on 25.07.2016 on next

day the reference was made by the Deputy Range Officer

to Veterinary Surgeon for identification of the Turtle.

The Veterinary Surgeon after inspection wrote a letter

on 26.07.2016 to the Range Officer to the following

effect:

“From, Dr. Anil Kumar T Senior Veterinary Surgeon B.V. Sc & A.H. Veterinary Hospital Reg. No.1329, Erumely.

To 6

Range Officer Erumely, Erumely.

Subject: Species identification Reference: Deputy Range Officer on 26.07.2016.

As per the above reference on 26.07.2016 a turtle belonging to a turtle family was brought for identification, and on inspection it is found that the turtle is Indian Flap Shel and the scientific name is “Lissemy’s Punctata” and therefore it is certified.

26-07-2016 Erumely”

11. The Veterinary Surgeon identified the Turtle as

‘Indian Flap Shell’ and the scientific name “Lissemy’s

Punctata”. Item No.8, Schedule I 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 animal under Schedule I, II, III and IV except as

provided under Sections 11 and 12. Sections 11 and 12

are the provisions where hunting is permitted by the

permission of Chief Wild Life Warden. In case a person

hunts any of the wild animals which are included in 7

Schedule I to IV, it becomes an offence inviting the

penalty under Section 51 of the Act, 1972.

13. A perusal of the letter given by the Veterinary

Surgeon as extracted above indicates that Veterinary

Surgeon has identified the Turtle as ‘Indian Flap Shell

(Lissemy’s Punctata)’ whereas the Turtle which is

included in Part II of Schedule I of the Act, 1972 is

“Indian Soft-shelled Turtle (Lissemys punctata

punctata).” Lissemys punctata is a species of which

Lissemys punctata is infraspecies. Although Lissemys

punctata is included in Part II of Schedule I of the

Act, however, the Turtle which has been seized is not

that which is included in Part II of Schedule I. In the

facts of the present case, on the face of it, the

Turtle seized is not included in Schedule I Part II and

the Turtle having already been freed on the second day

of its seizure, the High Court did not commit any error

in quashing the criminal proceedings registered for

Wild Life offences.

8

14. We do not find good ground to interfere with the

order of the High Court by which the High Court has

exercised its jurisdiction under Section 482 Cr.P.C. On

the facts of the present case, the appeal is dismissed.

...................J. ( ASHOK BHUSHAN )

...................J. ( INDU MALHOTRA )

NEW DELHI;

DECEMBER 09, 2020.