1. Heard Mr. M.H. Joshi, learned Senior Advocate with Mr. Sandeep Singhi, learned advocate for the petitioners and Mr. S.P. Hasurkar, learned Additional Public Prosecutor for the respondents.
2. Mr.
M.H. Joshi, learned Senior Advocate has submitted that the entire allegation is based upon a scene of the film ?SLagaan?? which cannot, by any stretch of imagination, be said to be a legal evidence of possession of the animal in question viz Chinkara. Referring to the affidavit-in-reply filed on behalf of respondent No.2, it is further pointed out that a novel principle of criminal jurisprudence is pressed into service whereby the burden of proof of innocence is placed on the petitioners/accused. It is contended that it is only when there is some legal evidence to make out a case against the petitioners that the petitioners can be called upon to produce their defence.
3. Attention is drawn to the statements of Pankaj Khandpar, Ex Creative Director of Western Outdoor Media Technologies recorded on 19th November, 2007, wherein it is stated that he has demonstrated to the respondent authorities as to how the part of the film incorporating the scene of Chinkara was created. It is submitted that the entire sequence was by way of special effects and that no real animals have ever been used. It is submitted that on the face of it, the allegations made in the complaint are absurd.
4. It is further pointed out that the learned Magistrate has directed issuance of bailable warrants against the petitioners without following due procedure as envisaged under section 202 of the Code of Criminal Procedure, 1973 which makes it obligatory upon the Magistrate before summoning the accused residing behind his jurisdiction to inquire into the case himself or direct investigation to be made by the police officer or other officer as he thinks fit for finding out whether or not there was sufficient ground for proceeding against the accused. It is submitted that the aforesaid procedure has been given a complete go-bye. It is further contended that the proceedings have been initiated after a delay of more than eight years and no explanation has come forth as to why the delay has been caused. In the circumstances, the impugned order dated 27th March, 2008, not being in consonance with the statutory provisions, deserves to be quashed and set aside.
5. On the other hand, Mr. S.P. Hasurkar, learned Additional Public Prosecutor has submitted that in view of the provisions of section 200 of the Code, it is not necessary for the learned Magistrate to examine the complainant on oath, as in the present case, the complainant is a public officer. It is further submitted that section 202 of the Code which provides for postponement of issuance of process confers a discretionary power on the Magistrate to postpone the issue of process only in case where he thinks fit that he is required to postpone the issue of process against the accused. It is submitted that in the facts and circumstances of the case, the learned Magistrate had upon examination of the complainant, thought it fit to issue process directly, hence, there is no infirmity in the order passed by the learned Magistrate. As regards the question of limitation, it is submitted that the period of limitation would start from the date of knowledge and it is only when the concerned officer saw the film that he came to know of the offence in question, whereupon he has initiated the proceedings in question. As regards the nature of the evidence, the learned Additional Public Prosecutor has submitted that the footage in the film is enough to establish possession of Chinkara and hence, in view of the provisions of section 57 of the Wild Life (Protection) Act, 1972, there is a presumption that the accused were in unlawful possession, custody or control of such captive animal and hence, the burden lies on the accused to prove to the contrary. It is submitted that in the present case, the original negative of the film in connection with the footage involving Chinkara has not been produced before the concerned authority and that the moment the mother negative is produced, after perusal of the same, the proceedings would be terminated. It is submitted that this is a case based upon circumstantial evidence and that in view of the fact that the petitioners are not denying the footage, their complicity in the offence is evident. In support of his submission, the learned Additional Public Prosecutor has placed reliance upon two decisions of the Supreme Court in the case of Dy. Chief Controller of Imports & Exports V. Roshanlal Agarwal and others (2003) 4 SCC 139 and in the case of Ajay Mehra and another v. Durgesh Babu and others (2002) 9 SCC 709.
6. In rejoinder, Mr. Joshi, learned Senior Advocate has submitted that the principal question which arises in this petition is as to whether a film can be said to be a legal evidence for what it depicts. It is further pointed out that there is no legal evidence worth the name to connect the petitioners with the offence in question. That there is no evidence to show as to who has entered the sanctuary, who had hunted the animal and/or who had the animal in their possession. It is submitted that in the circumstances, the entire complaint being absurd and without any basis, deserves to be quashed and set aside.
7. Having regard to the submissions advanced by the learned advocates for the parties, the core issue which arises for consideration is as to whether a film can be said to be a legal evidence for what it depicts. The entire complaint in question is based upon the footage in the film on the basis of which the petitioners are called upon to prove their innocence on the presumption that the offence in question has been committed. Prima facie, upon perusal of the complaint as well as the documents on record, there is nothing to show that there is any other evidence to connect the petitioners with the offence in question except the footage of the film on which reliance is placed upon by the prosecution.
8. As regards the submissions advanced by the learned Additional Public Prosecutor regarding section 202 of the Code, this Court in the case of Neel Dilip Shah v. State of Gujarat has already taken the following view.
?S31. The principal contention raised by the learned Senior Advocate is that on account of non-compliance with the mandatory provisions of sub-section (1) of the section 202 of the Code, the issue of process was bad. In this regard, it would be necessary to refer to the provisions of section 202 of the Code, which reads as under:
?SSection 202 ? Postponement of issue of process. -
[1] Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
[a] where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or [b] where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
[2] In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
[3] If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.??
32. A plain reading of the said provision shows that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit postpone the issue of process against the accused, and (i) either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus, it is well within the discretion of the concerned Magistrate to postpone the issue of process if he thinks fit. However, by the amendment of 2005, sub-section (1) of section 202 has been amended, which makes it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there is sufficient ground for proceeding against the accused. This has been done to see that innocent persons are not harassed by unscrupulous persons. Thus, in view of the amendment in case where the accused is residing beyond the area in which he exercises jurisdiction, the discretion of the Magistrate is taken away, and it becomes mandatory for him to postpone the issue of process till inquiry as envisaged under sub-section (1) of section 202 is made.
33. It is an admitted position that petitioners No.1 to 3 are residing at New Delhi which is beyond the area in which the learned Metropolitan Magistrate, Ahmedabad exercises his jurisdiction. The complaint in question has been lodged after the coming into force of the said amendment; hence, the amended provisions of section 202 would be squarely applicable in the present case. It, therefore, becomes necessary to examine as to whether there is due compliance with the same.??
9. In the circumstances, the matter requires consideration. Hence issue Rule. The interim relief granted earlier shall continue till the final disposal of the petition.
10. At this stage, Mr. S.P. Hasurkar, learned Additional Public Prosecutor has requested that this order be stayed for a period of 15 days so as to enable the respondents to approach the higher forum, if so advised. Considering the fact that the interim relief has been granted vide order dated 11th April, 2008 and has been confirmed by this order, the request made by the learned Additional Public Prosecutor does not merit acceptance and is accordingly, declined.
(HARSHA DEVANI, J.) shekhar/-
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