N Criminal Appeal Nos
551 553 of 1988 From the Judgment and Order dated 18219871321987 of the Patna High Court in Crl
No 258 259 and 2231 of 1987 R
MPJha for the Appellant
Dr YS Chitale Kapil Sibal
KM Lahari RF Nariman KK Lahiri Raian Karanjawala Mrs Manik Karanjawala and Miss Meenakshi for the Respondents
The Judgment of the Court was delivered by VENKATACHALIAH J
SLP 1879 of 1987 is by the State of Bihar for special leave under article 136 of the Constitution to appeal from the order dated 1321987 of the High Court of Patna in Crl
223 of 1987 quashing in exercise of powers under section 482 of code of Crl
Procedure 1973 the order dated 171986 of the Judicial Magistrate Chaibasa taking cognizance of an offence under Section 91 read with sec
51 of the Wild Life Protection Act
1972 against respondent Vikram Singh
PG NO 459 Special Leave Petition Nos
1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar orders both dated 1821987 in Criminal Misc 
258 1987R and 259 1987R of the High Court quashing the same common order of the said Magistrate dated 171986 against two other accused namely Murad Ali Khan and faruq Salauddin who are respondents in these two Special Leave petitions
Special leave was granted and the three appeals were taken up for final hearing heard and disposed of by this common judgment
We have heard Shri MP Jha learned counsel for the State of Bihar and Dr Chitaley and Shri Nariman for the respondents
The accusation against the three respondents is that on 861986 at 20 PM they along with two others named in the complaint shot and killed an elephant in compartment No 13 of Kundurugutu Range Forest and removed the ivory tusks of the elephant
On 2561986 the Range Officer of Forest of that Range lodged a written complaint with the Judicial Magistrate Ist Class Chaibasa in this behalf alleging offences against respondents under Section 51 of the Wild Life Protection Act 1972
The learned Magistrate took cognisance of this offence and ordered issue of process to the accused
It would appear that at the Police Station
Souna a case had been registered under sections 447 429 and 379 IPC read with sec 54 and 39 of the Wild Life Protection Act 1972 and that the matter was under investigation by the police
The respondents WhO Were amongst the accused moved the High Court under Sec
482 Cr
PC or quashing of the order of the Magistrate taking cognizance he alleged offence and issuing summons
The High Court was persuaded to the view that this was a case to which section 2101 of Code of Criminal Procedure 1973 was attracted and that as an investigation by the Police was in progress in relation to the same offence the learned Magistrate would be required to stay the proceedings on the complaint and call for a report in the matter from the police and that the learned Magistrate acted without jurisdiction in taking cognizance of the offence and ordering issue of process against the accused
The High Court accordingly quashed the proceedings against the respondents
From the orders under appeal it would appear that two grounds commended themselves for acceptance to the High Court
The first was that the learned Magistrate acted contrary to the provisions of sec
PG NO 460 210
The High Court observed The investigation is still continuing and pending in so far as the petitioner is concerned and the investigation shall continue
Obviously the Judicial Magistrate acted beyond jurisdiction in taking cognizance against the petitioner when for the same allegation the investigation was proceeding and pending
He acted contrary to the provisions of Section 210 of the Code of Criminal Procedure
The complaint was filed after long delay 
 The Second ground was on the merits of the complaint
The High Court inter alia observed On the face of the complaint petition of the first information report itself the facts alleged do not constitute the offence
The petitioner was never named in the first information report
There is no eye witness in this case and there is no identification of the petitioner in any manner whatsoever to sustain the allegation even prima facie for the offence alleged
On a careful consideration of the matter we are afraid the approach of and the conclusion reached by the High court is unsupportable In regard to the first ground presumably certain provisions of the Act in regard to cognizability and investigation of offences against the act relevant to the matter had not placed before the High Court
The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depradations inflicted on nature by man
The State to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate determined and effective steps were taken the damage might become irreversible
The preservation of the fauna and flora some species of which are getting extinct at an alarming rate has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration in part at least a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks m mankind that go with the deterioration of environment
The tragedy of the predicament of the civilised man is that Every source from which man has Increased his power on earth has been used to diminish the prospects of his successors
All his progress is being made at the expense of PG NO 461 damage to the environment which he can not repair and cannot foresee
In his foreward to International Wild Life Law  HRH Prince Philip The Duke of Edinburgh said Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside
Sadly perhaps it is a great deal more complicated than that   
As usual with all legal systems the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented
Regretfully progress in this direction is proving disastrously slow See International Wild life Law by Simon LysterCambridge Grotuis Publications Limited 1985 Ed There have been a series of international1al convention for the preservation and protection of the environment The United Nations General Assembly adopted on 29 101982 The World charter for nature
The charter declares the Aware ness that
a Mankind is a part of nature and life depends On the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients
b Civilization is rooted in nature
which has shaped human culture and influenced all artistic and scientific achievement ment
and living in harmony with nature gives man the best opportunities for the development of his creativity and for rest and recreation
In the third century BC King Asoka issued a decree that has a particularly contemporary ring  in the matter of preservation1 of wild life and environment
Towards the end of his reign
he wrote Twenty six years after my coronation I declared that the following animals were not to be killed parrots mynas the aruna ruddy geese Wild geese the nandimukha cranes
bats queen ants
terrapins boneless fish
PG NO 462 rhinoceroses and all quadrupeds which are not useful or edible  Forests must not be burned
 Environmentalists  conception of the ecological balance in nature is based on the fundamental concept that nature is a series of complex biotic communities of which a man is an inter dependant part and that it should not be given to a part to tresspass and diminish the whole
The largest single factor in the depletion of the wealth of animal life in nature has been the civilized man operating directly through
excessive commercial hunting or
more disastrously
indirectly through invading or destroying natural habitats
We might now turn to certain provisions of the Act
91 of the Act says that no person shall hunt any wild animal Specified in Schedule T Elephant is included in schedule I
The expression wild animal is defined in see
2 36 to mean any animal found wild in nature and includes any animal specified in schedule 1 etc The expression hunting is defined in see
2 16 in a comprehensive manner 216 hunting  with its grammatical variations and cognate expressions includes
a capturing
killing
poisoning
snaring and trapping of any wild animal and every
attempt to do so b driving any wild animal for any of the purposes specified in sub clausea
c injuring or destroying or taking any part of the body of any such animal or
in the case of wild brids or reptiles damaging the eggs of such birds or reptiles or disturbing the eggs or nests of such birds or reptiles Sec
51 of the Act provides for penalties
Violation of sec
91 is an offence under sec
511
55 deals with cognizance of offences 55
No court shall take cognizance of any offence against this Act except on the complaint of the Chief wild Life Warden or such other officer as the State Government may authorise in this behalf
 What emerges from a perusal of these provisions is that cognizance of an offence against the Act can be taken by a PG NO 463 Court only on the complaint of the officer metioned in Sec
The person who lodged complaint dated 23686 claimed to be such an officer
In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act Sec 210 1 would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section
Even where a Magistrate takes cognisance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence the two cases do not lose their separate indentity
The section seeks to obviate the anomalies that might arise from taking cognisance of the same offence more than once
But where as here cognisance can be taken only in one way and that on the complaint of a particular statutory functionary there is no scope or occasion for taking cognisance more than once and accordingly section 210 has no role to play
The view taken by the High Court on the footing1g of section 210 is unsupportable
The second ground takes into consideration the merits of the matter
It cannot be said that the complaint does not spell out the ingrediants of the offence alleged
A complaint only means any allegation made orally or in writing to a Magistrate
with a view to his taking action that some person whether known or unknown
has committed an offence
It is trite jurisdiction under Section 482 Cr
PC which saves the inherent power of the High court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice has to be exercised sparingly and with circumspection
In exercising that jurisdiction the High Court would not embark upon and enquiry whether the allegations in the complaint are likely to be established by evidence or not
That is the function of the Trial Magistrate when the evidence comes before his
Through it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction one thing however appears clear and it is that when the High Court is could upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations whether those allegations set out in the complaint or the charge sheet do not in law constitute or spell out any offence and that resort to criminal proceedings would in the circumstances amount to an abuse of the process of the court or not
PG NO 464 In Municipal Corporation of Delhi vs RK Rohtagi  884 at 890 it is reiterated It is therefore manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same no offence is constituted
In other words the test is that taking the allegations and the complaint as they are without adding or subtracting anything if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code
 In Municipal Corporation of Delhi vs PD Jhunjunwala  at 897 it was further made clear  
As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial
We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further
 In the complaint No 653 dated 2361986 of the Range Officer Forests it is
inter alia alleged I have to report that on 8686 at about learnt from Sri Aghnu Mahto Forester Jomatai Beat that somebody has killed an elephant in compartment No 13 of Kundrugutu Reserve Forest
The matter was serious and so I immediately reported it to Officer incharge Sonua Police Station to register a case and for investigation
It was further reported that Jiwan Mesi Longa Coupe Oversee Jomtal Beat has been seen the accused persons entering into the forest during the night time and had returned on the same Jeep No BRX 9588 at about 8 or 9 AM
He could indentify only Sri Prabhu Sahay Bhengra in the jeep was is driver of Block Development Officer Bandgoan
During my enquiry I visited the spot and dug out the body of the elephant and found that both of the tusk had PG NO 465 been extracted out from the mouth of the elephant
It was also learnt from the admission of the accused Prabhu Sahay Bhengra who was interrogated by me during the course of enquiry that the elephant was killed in the early morning of 1686 before dawn ie on 1686 by him and 1 Sri Abranham Bhengra 2 Sri Murad ali Khan 3 Sri Vikram Sing 4 Sri Farukh Salauddin 5 Sri Babu Khan name above by two Riffles and had used 6 rounds of bullet
On the spot two empty cartridges tusk with him and other tusk was taken away by Murad Ali Khan and his associates
Later one of the tusks w as produced by Sri Prabhu Sahay Bhengra to the officer in charge Sonua Police Station in my presence
On the basis of the information resolved from Bhengra I immediately proceeded to Jamshedpur with DSP Chakardharpur and the DFO Pornahat Division Sri Murad Ali Khan and his associates
Sri Baby Khan was interogated who admitted that they brought one of the
tusks and has sent it to Lucknow for disposal
They were brought to Chaibasa with jeep No BRX 9588 and they were handed over in the custody of the SP Singhbhum
Chaibasa for needful
Mr Murad Ali Khan promised na produce the tusk in a few days time but did not disclosed the place where he had sent the tusk at Lucknow   The complaint further proceeds to say that elephant is included in the Schedule 1 of the Wild Life Protection Act
1972 and that the complainant was authorised by the Bihar Government s notification No SO 102241873 to file complaints under Act
It is difficult to agree with the High Court that the allegations in the complaint taken on their face value would not amount in law to any offence against the Act
The second ground on which the High Court came to quash the proceedings of the Magistrate on the facts of this case is impermissible as an exercise under Sec 482 Cr
PC 7
It was however suggested for the respondents that the offence envisaged by sec
91 read with sec
216 and PG NO 466 sec
501 of the Act in its ingredients and content is the same or substantially the same as Sec
429 IPC and that after due investigation and police had filed a final report that no offence was made out and that initiation of any fresh proceedings against respondents would be impermissible
429 IPC which occurs in the chapter Of mischief provides 429
Mischief by killing or maiming cattle etc of any value or any animal of the value of fifty rupees Whoever commits mischief by killing poisoning maiming or rendering useless any elephant camel horse mule buffalo bull cow or ox whatever may be the value thereof or any other animal of the value of fifty rupees or upwards shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both
 The offence of hunting any wild animal as defined in sec
91 read with Sec
216 of the Act is much wider Section 56 of the Act  provides 56
Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force for any act or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act Provided that no person shall be punished twice for the same offence   We are unable to accept the contention of Shri RF Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant al1d that such an offence at all events falls within the overlapping areas between of sec 42  IPC on the one hand and 91 read with 50l of the Act on the other and therefore constitutes the same offence Apart from the fact that This argument does not serve to support the order of the High Court in the present case this argument is even on its theoretical possibilities more attractive than sound
The expression any act or omission which constitutes any offence under this Act  in section 56 of the Act merely imports the idea tat the same act or omission might constitute an offence under another law and could be tried under such other law or laws also
PG NO 467 The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutory principles that permeate penalogy and reflected in analogous provisions of sec
26 of General Clauses Act1897 Section 71 IPC Sec 300 of the CrPC 1973 and constitutionally guaranteed under article 202 of the Constitution
26 of the provides 26
Provision as to offences punishable under two or more enactments Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence   Broadly speaking a protection against a second or multiple punishment for the same offence technical complexities aside includes a protection against re prosecution after acquittal a protection against re prosecution after conviction and a protection against double or multiple punishment for the same offence
These protections have since received constitutional guarantee under article 202
But difficulties are in the application of the principle in the context of what is meant by  same offence
The principle in American law is stated thus 
The proliferation of technically different offences encompassed in a single instance of crime behavior has increased the importance of defining the scope of the offense that controls for purposes of the double jeopardy guarantee
Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if each provision requires proof of an additional fact which the other does not Blockburger vs United States   304 1932 Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes
The offenses must be Joined in one indictment and tried together unless PG NO 468 the defendant requests that they be tried separately
Jeffers vs United States  1977 See Double Jeoparady in the Encyclopedia of Crime and Justice vol  p 630 1983 Edn
by Sanford H Kadish The Free Press Collier Mac Millan Publishers London The expressions the same offence substantially the same offence   in effect the same offence or practically the same have not done much to lessen the difficulty in applying the tests to identify the legal common denomninators of same offence
Friedland in Double Jeoparady   Oxford 1969 says at page 108 The trouble with this approach is that it is vague and hazy and conceals the thought processes of the Court
Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions
A more serious consequences is the fact that a decision in one case that two offences are substantially the same  may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible  8
In order that the prohibition is attracted the same act must constitute an offence under more than one Act
If there two distinct and separate offences with different ingredients under two different enactments a double punishment is not barred
In Leo Roy Frey vs The Superintendent District Jail Amritsar   the question arose whether a crime and the offence of conspiracy to commit it are different offences
This Court said The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients
They are therefore quite separate offences In State of of Madhya Pradesh vs Veereshwar Rao Angnihotry  the accused was tried by the special judge for offences under sec
409 IPC and sec
52 PG NO 469 of the Prevention of Corruption Act 1947
While convicting him under sec 409 IPC the Special Judge held that the accused could not be tried under sec
52 of the Prevention of Corruption Act 1947 as there was a breach of the requirement of law that the investigation be by a police officer not below a particular rank
In appeal the High Court set aside even the conviction under Sec
409 IPC PG NO 469 applying the doctrine of autrefois acquit holding that the Special Judge s finding on the charge under Sec
52 amounted to an acquittal and that punishment as a charge under Sec 409 would be impermissible
This court following the pronouncement in Omprakash Gupta vs Slate of UP  held that the two offences were distinct and separate offences
In The State of Bombay vs SL Apte  Anr 11961 3 SCR 107 the question that fell for consideration was that in view of earlier conviction and sentence under sec 409 IPC a subsequent prosecution for an offence under sec
105 of Insurance Act
1935 was barred by sec
26 of the and article 202 of the Constitution
This Court observed To operate as a bar the second prosecution and the consequential punishment thereunder must be for the same offence 
The crucial requirement therefore for attracting the Article is that the offences are the same7 ie they should be identical
If however the two offences are distinct then notwithstanding that the allegations of facts in the two complaints might be substantially similar the benefit of the ban cannot be invoked
It is therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out    
Though section 26 in its opening words refer to the act or omission constituting an offence under two or more enactments  the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged
This is made clear by the concluding portion of the section which refers to shall not be liable to be punished twice for the same offence 
If the offences are not the same but are distinct the ban imposed by this provision also cannot be invoked  
PG NO 470 The same set of facts in conceivable cases can constitute offences under two different laws
An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law
I he observations of this court made in the context of sec
23 of Contempt of Courts Act might usefully be recalled
In Bathina Ramakrishna Reddy vs State of Madras this Court examined the contention that the publication of an article attributing corruption to a judicial officer was not cognizable in contempt jurisdiction by virtue of sec
23 of the Contempts of Courts Act 1953 which provided that No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code
 The contention before this Court was that the allegations made in the article constituted an offence under section 499 of IPC and that therefore cognizance of such an offence under the Contempts of Court Act was barred
Repelling the contention Mukharji J said In our opinion the sub section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code
This would be clear from the language of the sub section which uses the words where such contempt is an offence and does not say There the act alleged to constitute such contempt is an offence   It is
however unnecessary to explore the possibilities of this contention as indeed there has been admittedly no prior conviction and sentence for an offence under section 429 IPC e en assuming that the two offence are substantially the same offence 
Suffice it to notice prima facie that the ingredients of an offence under sec
91 read with sec
501 of the Act require for its establishment certain ingredients which are not part of the offence under sec
429 and vice versa
In the result these appeals are allowed the orders of the High Court in Crl
223 of 87 dated 1321987 and the two orders in Crl
No 258 of 1987R and Crl
PG NO 471 Misc
No 2591987R 1821987 are set aside and the order dated 171986 of the learned Magistrate taking cognizance of the offence and ordering issue of summons to the respondents is restored
The criminal case initiated on the complaint will now be proceeded with in accordance with law
MLA Appeals allowed


Summary:
The appellant was a Class III servant employed as a metal examiner also called chaser in the Railway Carriage Workshop at Ajmer
He accepted a sum of Rs 150 as illegal gratification for securing a job for some person
He was charged under section 51d of the Prevention of Corruption Act 1947 Act II of 1947
The appellant contended that he was not an officer within the meaning of the term used in section 219 of the Indian Penal Code and so could not be a public servant for purposes of Act II of 1947
It was found that the appellant was working under the Works Manager who was certainly an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who was also armed with some authority or representative character qua the Government
Held that the appellant was an officer within the meaning of section 219 of the Indian Penal Code and therefore a public servant within the meaning of section 2 of Act 11 of 1947
The true test in order to determine whether a person is an officer of the Government is  
1 whether he is in the service or pay of the Government and 2 whether he is entrusted with the performance of anypublic duty
The public duty may be eithera function of the Government delegated to him or may be a duty immediately auxiliary to that of someone who is an officer of the Government
vs Ramajirav Jivbajirav 1875 XII Bom
HCR 1 explained
Nazamuddin V Queen Empress 1900 ILR and Ahad Shah vs Emperor AIR 1918 Leh 152 relied on