IN THE HIGH COURT OF INATAI AT BANGMAORE Dated t.hi.s t.he 1 i..fl day of Augu..st. 20 1 1 13(300RE THE HON’BLE MR. JUSTICE N KUR WriL itiou No. 39705 of 20044 BETWEEN: Mr. Niren Jam Aged about 30 years S/o VK. Jam NoD, Patina Apartments Kadri Mangalore — 575 002 2. Shri Praveen Bharcav S 1 o V. tf3hargav Aged about 4(3 rPar No, 1231E ) floor 2(3 A .Ma.mn, Jayanagar 41i T l3ioek ttaugaiore — 5(30 041 3., Dr. K. Alias Earauth S/o late Sri Shivaraim Kara.ut. 5. Aped about 5(3 years Residmn.g a.t 3Tr4pn Seeoo Apartments 26J3. Aga Abbas Ai•i Road i.tanpaiore - 5630 042 4 2 4. Shri Sanjav Gubbi 3/0 N.B. Sreyamsha Kumar Aged about 32 years 823. ‘Chaithra’ 7111 Block. Jayanagar Bangalore . ..Petitloners (By Sri B. V. Acharya. Senior Advocate for MIs. Holla & Holla, Advocates) AND: Smt. Anita Arekal Deputy Conservator of Forest Kudremukh Wild Idle Division Karkala 2. Sri Srinivasa Redy Range Forest Officer Kerekatte Wild Life Range Sringerl Taluk Chickmagalur District 3. State of Karnataka Represented by Its Principal Secretary Forest. Ecolor and Environment Multistoried Building Phase-TI Dr. Ambedkar Veedhi Bangalore — 560 001 . . .Respondents (By Sri K.M. Shivayogiswamy. HCGP) This Writ Petition is filed under ArtIcles 226 and 227 of the Constitution of India, praying to quash the FIR No.16/2004 dated 1 1-8-2004 vide Annexure-E by respondent No.2 at the a 3 behest of respondent-i in FOC No.5/04-05 4 on the ifie of the Court of JMFC. Srlngeri. This Writ Petition coming on for hearing this day. the Court made the following: ORDER The petitioners in this writ petition are seeking quashing of the complaint lodged by the respondent No.2 on behest of respondent No.1 before the Court of JMFC, Sringeri, In FOC No.5/04-05 as per Annexure-E. 2. The first petitioner-Niren Jam is a practicing architect In Mangalore and has been involved in conservation of Kudremukh National Park for the past several years. He was working as a research assistant under Dr. Ullas Karanth for more than 2 years under the Karnataka ‘flger Conservation Project. lie has been Instrumental in the campaign to stop the mining activities to save Kudremukh National Park. Working as a research assistant he acquired skills to scientifically monitor wildlife population using camera traps, line transect sampling and other sciemille methods. lie has been awarded 4 the Carl Zeise Roll of honour award for his contribution to wildliië conservation in Kudremukh. Kamataka. 3. The second petitioner-Praveen Bhargav has a Postgraduate degree in Mass Communication and a practicing advertising professional. He has been an active conservationist since 1982 when he co-founded a Wildlife Conservation, NGO. In 1998 he received an international certificate of recognition from the New York based Wildlife Conservation Society (WCS) for his contribution to Wildlife and Biodiversity conservation in Karnataka. He was appointed by the Government of Karnataka as an Honorary Wildlife Warden in 1998. Again in 2001. Praveen received the ESSO Honor for ‘Tiger Conservation in recognition for his sustained Tiger Conservation efforts. In 2002 he was selected to participate in the seventh Environmental Research and Conservation. Columbia University, New York. 4 5 4. Third petitioner-Dr. K. Ullas Karanth is an Internationally reputed wildlife scientist, who has published over 50 scIentific articles In International scientific publications of repute such as proceedings of the National Academy of Sciences. USA: Journal of Zoology. London: Ecology: Journal of Animal Ccology. Conservation Biology and In books published by Cambridge University Press, Columbia University Press and 1slaid Press. He has also authored/edited two scientific books in English and two popular books in Kannada. His expertise In wildlife sciences has been recognized nationally and Internationally. Because of his professional achievements he has held the following professional positions: - (1) Senior Conservation Zoologist with the Wildlife Conservation Society. New York; (2) Scienufic Fellow of the Zoological Society of London and Adjunct Associate Professor — University of Minnesota. USA. 4 6 3) He is also a Member of the Board of World Wildlife Fund India: (4) Member of the Steering Committee of Project ‘flger; (5) A former Member of both the Indian Board for Wildlife and Karnataka Wildlife Advisory Board. He also serves/has served on the editorial boards of reputed scientific journals like Animal Conservation; Oryx: Journal of Bombay Natural History Society and Conservation and Society. He Is the Director of Centre for Wildlife Studies, a research Institution, recognized by the Department of Sciences and Technology. Government of India and is also affiliated to the Manipal Academy of Higher Education. Deemed university. Dr. Karanth has also Implemented a major conservation project titled “Karnataka Tiger Conservation Project in collaboration with the Kamataka State Forest Department from 1997-2000. 5. The fourth petitioner-Sanjay Gubbi. is an Electrical Engineer who has been involved In wildlife conservation issues since the past. 15 years. He is a leading feature writer on 1—-• 7 wildlife conservation issues in major national, state dailies and magazines. He has collaborated with the Karnataka Forest Department on various Issues regarding conservation of forests and wildlife. I-Ic is a consultant to the Centre for Wildlife Studies, Bangalore and Is the founder of the NGO Green Watchers, Thmkur. BACKGROUND OP TIlE CASE 6. Kudremukh National Park Is the largest wildlife reserve of tropical wet evergreen ibrests In the Western Ghats which are recognized as one of the 25 biodlversity hotspots In the entire world. The Park Is the source of three major rivers (Bhadra, Thnga and Nethravathi) and harbors several species of endangered animals such as tiger. leopard, wild dog. gaur. liontalled niacaque, hornbills and king cobra. Because of Its biological wealth and Importance as a water catchment, the area was notified as a national park excluding revenue villages, patta lands. revenue lands, gomal lands, various rights of way, etc.. which are in the park. The petitioners have been closely 4 8 involved with its conservation park over the years. One major conservation initiative undertaken by the Government of Karnataka was the Karnataka Tiger Conservation Project. Under this project the petitioners organisation provided 15 four wheel drive Jeeps. 2 high speed patrol boats, around 60 wireless sets, more than 1700 field kits and insurance policies for frontline protection staff and conducted a dozen training programs for field staff. The project was carried out in collaboration with the forest department and the petitioners moved around in the National Park to execute project activities and document these actMtles. Letters of appreciation from the Chief Wildlife Warden/DCF. Kudremukh are produced. 7. In the report submitted it was stated that Community Leadership for Tiger Conservation primarily aimed at generating local community support for tiger conservation. promoting long-term habitat consolidation through voluntary resettlement/land acquisitions and continued efforts at tiger conservation Including activities In collaboration with the forest 4 9 department with Its goals would be implemented at Kudreinukh and other sites. After completion of Tiger Conservation Project, another project titled Community Leadership for Tiger Conservation was Initiated In Kudremukh by Kudremukh Wildlife Foundation with guidance from petItioner No.1. Because of this new project primarily Involved work with local communities outside the national park area and did not Involve “study or Investigation of wildlife as Its goal’, there was no need for a permission from the Chief Wildlife Warden under Section 28(2) of the Wildlife (Protection) Act. 1972 (for short hereinafter referred to as ‘the Act’). However, some of the project activities did Involve Interaction with forest department staff and/or entry Into the park. such ctMtles were carried out with specific permission obtained from local officials and often In association with them. For example. petitioner No.1 at the request of the then DCF traveled In the park and provided detailed suggestions for improving the nianagement of the park. Similarly, petitioners were Invited by omcials to participate In the training of forest l0 stair in wildlife monitoring as well as training in protection duties and these activities were carried out with the involvement of local officials. The petitioners were also involved in providing uniforms and field kits. etc.. to staff tinder the banner of the CLTC project with official approval. All these project activities were carried out with full knowledge of local officials and in association with them is clearly shown by numerous photographs and correspondences Including invitations and appreciation letters from officials. Under the CLTC Project, the petitioners also Interacted with local people living Inside the revenue enclosures located in the Kudremukh area. but were outside the boundaries of the national park, using public rights of ways. Even these activities were well known to the forest staff officials who sometimes even accompanied them in these interactions. Further in the case of a few poor families who had encroached on forest land in l3hagavathy and Bolle. interactions were carried out in the company of forest officials with their approval as shown by photographs. 11 8. In addition to implementing CLTC project. purely out of their concern for wildlife conservation, petitioners have been fighting for the cause of wildlife conservation in Karnataka, associated with various other conservation advocacy groups. These groups have been squarely confronting vested Interests and combating pressures that are inimical to wildlife conservation. The NGO Wildlife First’ based at Bangalore with which petitioners are associated has been engaged in conservation battles against vested Interests and lobbies connected with activities such as timber exploitation and mining in protected areas. 9. Wildlife First ified an Interlocutoiy Application l.A. 670/2001 in WI’ 202/1995 before the Hon’ble Supreme Court of India praying for stoppage of iron ore mining in Kudremukh National Park. The petitioners presented crucial evidence before the Hontle Supreme Court. This evidence included findings from a scientific study involving petitioners with I .— LU- - 12 permissions from the Water Resources Department Government of Karnataka. The study was carried out In the revenue enclosures of Bhagavathy, Bilegal, Malleswara, Neflibeedu, etc., which are outside the National Park Area. The study results highlighted the massive soil erosion. sedimentation and siltation problems caused in the Bhadra river system by the mining operations. 10. Petitioners were also involved In supporting the compilation of 10 minute long non-commercial educational video with archival that documented the deleterious impacts of iron ore mining on river ecology. biodiversity and rural llvelthoods for the purpose of educating the public. The educational video titled “Mindless Mining” was formally presented before the Hon’ble Supreme Court. The State Forest Department and the Chief Wildlife Warden were fully aware of the study report and the educational video being made and presented as evidence before the Honble Supreme Court as far back as the year 2001. 13 11. The Honbie Supreme Court in Its judgment In IA 670/2011 noted the ecological damage caused by the mining and ordered the winding up of the mining activities by 2005. Thereafter, the petitioners have been persistently following up the matter with the forest department trying to ensure that a 37 square kilometer area affected by mining be Immediately notified as part of the national park as per the order of the Honble Supreme Court. The then DCF, Kudremukh Wildlife Division had also written to the Government In March 2003 urging it to Include the above area in the national park. 12. During February 2000, pile transporting Iron-ore slurry broke and severely damaged rain forests. At that time the then DCF had recovered a heavy fine of 10 lakh rupees from the mining company. However, after the first respondent took over as DCF in July 2003. when a similar Instance of ecological damage occurred durIng June 2003. the Incumbent DCF. did not take similar action as required under the Act. 14 She has totally failed to pursue the matter with necessaiy urgency. thus potentially endangering the park from the ravages of continued mining and Indirectly benefitting the mining activities. 13. It Is in this background we have to see the FIR lodged against these persons which is dated 5.8.2004 and submitted to the Court on 11.8.2004. In column No.3 dealing with nature of offence it Is stated that attempt for rehabilItation of villages In Kerekatte Wild Life Range violation of Wild Life Protection Act. 1972. 1991 Amendment Act Sections 27. 28. 35(6) (8). 50. 51. 52 and 58. vehicle used for (not readable). In column No.4 it is stated KA21 M 2658 Jeep not seized. In the mahazar appended to this FIR It Is stated that, on the basis of the documents there was an attempt on the pan of these accused offering to the persons mentioned In the mahazar who are all residents of the reserve forest money with a request to vacate their place so that whey would be provided suitable alternative accommodation, houses and compensation amount. 15 it was also represented to them that they would be rehabilitated to the place of their choice and they would pay the money through their organization directly. On coming to know of such representation the forest officials came to the spot. made enquiries and found that without permission of the forest department the accused have entered Kudremukh National Park and were attempting to rehabilitate the persons mentioned therein by offering Rs.2 to Rs. 4 Laths to each one of them. Therefore. these accused have committed offences under the aforesaid provisions. in the schedule to the said mahazar the place where the aforesaid incident happened is described as to the East-West public works road, North-South National Highway. Mahazar commenced at 5 PM and it ended at 6 PM. Along with the Writ Petition the petitioners have produced documents which are in the nature of correspondence between them and the Principal Secretary to the Government of Karnataka giving their proposal for rehabilitating the persons who have legally and illegally occupied Government land, enclaves, located in and around 16 protected areas in Karnataka. Under the scheme the compensation for the lands or assets surrendered to the Government will be paid to the beneficiaries/owners directly by using funds raised from international conservation donors. The Principal Chief Conservator of Forests, Deputy Conservator of Forests, Conservator of Forests, Mangalore Circle. Mangafore, have all made recommendation to this effect. In fact the letter written by the Principal Chief Conservator of Forests state that, it Is clear from the accompanying map that under the Pilot project if we agree to get these areas acquired through private funding, we may get (B) Bhagavati, (DO) Bolle and (5K) South Kanaaka Border included In the National Park. This effort together with the proposed purchase/acquisition by the Department of I Tolall (70 acres) will practically free an area of about 200 Sq. Kms. plus area free of any enclosures as a compact Block of the National Park. One of the letter shows that the authorities cooperated with the organisatlon in implementing the project and letter is thanking them for the cooperation extended by them. in fact the photographs I 17 produced along with the Writ Petition shows that these petitioners are Ibund In the company of the forest officials at the time of handing over of the cheques to the persons displaced and some of the photographs show the houses and shops which are adjoining the main road ends to the forest check post from where those persons are sought to be rehabilitated. 14. A perusal of the complaint ified clearly demonstrates that, under the guise of accusing these petitioners of violating the aforesaid clause what has been alleged is, violation of statutory provisions and orders by these organizations of which these petitioners are member. The Director. Community Leadership for Tiger Conservation Project being executed as collaboration in Kudremukh National Park by Kudremukh Wildlife Foundation. Second project is, community leadership for Tiger Conservation Project being executed as collaboration In Bhadra Wildlife Sanctuary by Bhadra Wildlife Conservation Trust. The third project, coniniunity leadership for Tiger 18 Conservation Project being exccuted as a collaboration in Nagarhole (Rajiv Gandhi National Park) through Living Inspiration for Tribals (LIFT) and Nagarahole Wildlife Conservation Education Project (NAWICOED). Therefore, it is clear that these three projects are undertaken by three Independent organizations. Clause (6) referred to supra casts an obligation on the petitioner to inform the undersigned If it is conducting/Intending to conduct any other activities In Karnataka or any activities in rest of India or any activities abroad. The petitloner-organisatlon Is not conducting the aforesaid three projects. The said three projects are conducted by three independent organisatlons. Therefore, on the face of it the violation complained of Is Incorrect. 15. In fact on the application filed by these petitioners before the Committee constituted by the Apex Court to monitor the forest and wealth of the wild life which Is caUed Central Empowered Committee. an order came to be passed on 28.4.2004 holdIng that the Deputy Conservator of Forests has 19 made disparaging remarks on the body constituted by the Apex Court. violated the orders passed by such authority, Initiated these legal proceedings against the petitioners herein In spite of an order of stay being granted. hi fact the proceedings sought to be Initiated by her against the members of the coinmitte was quashed by the Honble Supreme Court on coming to know of the same. In fact they have observed In the said order that, the role of NGOs In protection of forest and wildlife has been recognised In Chapter WA as one of the fundamental duties In the Constitution of India. Article 51A (g) specifically states that It shall be the duty of evenj citizen to protect and improve the natural environment including forests, lakes. rivers and wildlife and to have compassion for all living creatures. But this duty is without any doubt. subject o statutory permissions wherever required. Section 55(c) of the Act empowers any person to ifie complaint In the competent Court after givIng 60 days notice to the Central or the State Government. A similar provision already exists in the Environment (Protection) Act, 1986. Besides. the notification dated 17.9.2002 by which the CEC 1—•- 20 was constituted, sub pan (II) of pan 2 provides that any person can approach the CEC in case any of the orders passed by the Hon’ble supreme Court In the forest matter are perceived to have been violated. Suffice to say that the NGO’s and public spirited persons have a critical role to play In the protection of the forest, wildlife and the environment in general. Wherever statutoxy permissions are required they have to be obtained by all concerned. Besides. the NGO’s are expected not to make irresponsible statements or wild allegations. On the other hand. it has to be ensured that the provisions of the Acts are not used to harass the people involved In genuine conservation efforts. The CEC was constrained to observe that the concerned senior officers of the State of Karnataka have preferred to remain as mute spectators to the entire happening instead of Intervening to prevent the matter from sliding downhill ignoring the larger Interest of conservation of forest and wildlife. Thereafter. they recommended to the State of Karnataka to enquire Into the propriety, legality and the circumstances leading to Initiation of the criminal proceedings 21 against, the appiiearits and oi.hers a rid .he a.n enqu.iry report xvii tim one rne’ni Ii., it also directed I he Stale a nartiataka to initiate a.ppropriat.e aetion against. Deputy Conserva.tor of Forests, Khdrem u.k 1 WiidlhF Division., .ibr wfiftii violatimn. of th..e s orde 1 dalcd 2m 4 2001 mi uu mob uc to eornment.s against the CEC and its members 16. Therelbre, in sobsiauee the complaint is these petitioners .have contravened clause (6) of the order under Section 28 of the Act. Clause 6 read.s as under: “6. TIle applicant orgaaisatiou has to iqJhrrn i lIe t iudersionea it it is eoeeteeena/ in let idinq to conduct an outer aelieiiies in Panrrztaire: (ii) any aedeities hi rest af India liii) 0170 artzey es abroao. )7 tts it ;:rorma000 15 lit tendea to ensure that syffleiertt iliac and thetIs is pines, to this pm/eel: be r/te npnltrnn t OhYiCtrt)SO/i0i’7. 22 17. From the aforesaid facts it is clear ex — facie there is no substance in the allegations made In the complaint. The material on record clearly demonstrates these petitioners are as much interested as the respondent-officials in protecting the environment, forest, the ecology and the tribal people who are living in the forest. In fact, they have spent their entire life in carrying on these activities. They have been Instrumental In placing relevant material before the Apex Court which has resulted in stoppage of mining activities In this region permanently. The facts set out above clearly demonstrates that probably the respondent is unable to realise the Importance of the services rendered by these petitioners. She appears to have mistake notion about what they are trying to do. May be she is hurt by the orders of the Apex Court, as well as the committee constituted. who have not shown her actions In the way she executed or wanted. Therefore, she has a grievance against the petitioners as they are behind these adverse orders passed against her. May be these petitioners who have all completely dedicated themselves in these activities belong to a different 1— 23 generation as that of the respondent. Tiny se in to Ii ii e tic I given siitliricnt imonrianet’ in the re’pondent. She may be under the nnpression that because she is a lady. she has not bec i shown espe t that is duc o her i spite of f he id ng t high of ieial position. In fact, the first nspondent appeared in peron and defended her action. As could he seen fr in the conduct of the parties, the inatenal on record. I am satisfied it is a ease of clash of egos Both are interested in proteetme the erv’rrnni i t forest and th ill 1 life oil he rc not prejared o ppr c ate the effo i of others. That appears to be the rca reason for these proceedings. The respondent young in age has tasted power and wanted to show these petitioners uhat she can do and that is how she has shoxin spc c ial mt wect in a 3 ez r i I prc ring mantzcr col eeting no ma tot and fihmn a senes of citminal eases, on almost all the prox 151005 under the ei to bring hona hit 0 n h ii s tc N aio entitled respect roni the petit ioiirs It is dc ar front the nvter”ti cn record that tic’ Iro’ cihg, i e tot ‘n’ti t d i c ott’ fljftC’ tier I ‘\t’ opinth I 24 t.he offenders who have violai.ed the law, Probably it is n.otiva.tec1 by \1.nd.RL..iwrlEl,s. For that, Process ol law is abused, The Apex Court in the ease of STATE OF HARYANA AND OTHERS vs BHAJAIV LAL AND OTHERS 11992 SUPP (1) 5CC 335] had an occasion I 0 po nio the question in what cateyloiles of cases by was of dlust.ration wherein power nnder Article 482 of fhe Cr. PC could he exercised either to prevenf abuse of the process of any Court or otherwise to secure t.he eras of j ushr.e, t*hou.gh it may riot be possible to lay dcwn a.ny precise, clearly defined and sufficiently channelised arcl inflexible tiuldeliucs or rhtid formulae and to cilve an exhaustive list of myriad kinds of cases wherein such nowcr s1ould be exercised. Further, they have tiiv€..n the followiufi illust..ratiort..s: P A.hwre the a.lletiatlons made in tIre l.trsi. informadon report or t.he com.nlron.t., c.ven if they are t.akeri at t.,hei.r thee value and a.cceuted in their entirety do 25 not prima fade constitute any offence or make out a case against the accused. 2) Where the allegations in the first Information report and other materials. If any, accompanying the FIR do not disclose a cognizable offence. justifying an Investigation by police officers under SectIon 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made In the FIR or complaint and the