IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRL.P.NO.6982 OF 2014 BETWEEN:
1 SALEEM S/O MOHAMMED MASTHAN AGED 48 YEARS R/AT RAZAKSAB PALYA JALA HOBLI BANGALORE NORTH TALUK-560013.
2 MAJID KHAN S/O KASIM KHAN AGED 66 YEARS R/AT RAZAKSAB PALYA JALA HOBLI BANGALORE NORTH TALUK-560013.
3 MOHAMMED FAKRUDDIN S/O LATE R. MD. SULEMAN AGED 51 YEARS R/AT RAZAKSAB PALYA JALA HOBLI BANGALORE NORTH TALUK-560013.
4 MOULA ALI S/O FAKRUDDIN SAB AGED 51 YEARS R/AT RAZAKSAB PALYA JALA HOBLI BANGALORE NORTH TALUK-560013.
5 C. NAZEER S/O CHAINA BASHU AGED 41 YEARS R/AT RAZAKSAB PALYA JALA HOBLI BANGALORE NORTH TALUK-560013.
(BY SRI. KARUMBAIAH T.A. – ADVOCATE) …PETITIONERS AND:
1 THE STATE OF KARNATAKA BY BAGALUR POLICE STATION BAGALUR BANGALORE URBAN-562149.
2 S.S. THAPA WG. CDT SAS AND 10 414 AIR FORCE STATION YELAHANKA BANGALORE – 560063.
... RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGI – ADDL. SPP FOR R-1 SRI B. S. GURUSWAMY – ADV., FOR R-2 (ABSENT)) THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDING IN CRIME NO. 150/2011 REGISTERED BY THE 1ST RESPONDENT POLICE AGAINST THE PETITIONERS UNDER AIRCRAFT RULE 9 AND WHICH IS SUBSEQUENTLY NUMBERED AS C.C.NO.2082/2012 BEFORE THE JMFC, DEVANAHALLI INSOFAR AS IT RELATES TO THE PETITIONERS ARE CONCERNED.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R A charge sheet in Cr.No.150/2011 is filed against the petitioners herein and 109 other accused persons for the offences punishable under Rule 91 of the Aircraft Rules, 1937 (for short ‘ Aircraft Rules’). The Rule reads as under:
“91. Prohibition of slaughtering and flaying of animals, depositing of rubbish and other polluted or obnoxious matter in the vicinity of aerodrome – No person shall slaughter or flay any animal or deposit or drop any rubbish, filth, garbage or any other polluted or obnoxious matter including such material from hotels, meat shops, fish shops and bone-processing mills which attracts or is likely to attract vultures or other birds and animals within a radius of ten kilometers from the aerodrome reference point : Provided that the Director-General, a Joint Director General of Civil Aviation or a Deputy Director General of Civil Aviation, as the case may be, may, if he is satisfied that proper and adequate arrangements have been made by the owners of hotels, meat shops, fish shops and bone processing mills so as to prevent attraction of vultures or other birds and animals, having regard to the vicinity of place of slaughter from the aerodrome, arrangements for disposal or deposit of carcass, rubbish and other polluted and obnoxious matter, grant permission in writing for the purpose. “ 2. Respondent No.2-Wing Commander, SAS and IO, Airforce Station, Yelahanka, Bengaluru, lodged a written complaint before respondent No.1-Police on 17.10.2011 alleging inter alia that, extensive flying activity is undertaken at yelahanka base. Bird menace poses a hazard to flying. In last three months there have been six bird hits on all type of aircraft at this base. Some of the bird hits have caused severe damage to aircraft. Sometimes the bird hit can cause fatal accidents also. Recently, one engine had to be written off because of a bird hit. The losses are estimated to be in crores. Illegal fish farming at Razak Palaya village is the main cause of bird menace at this station. The villagers feed the fish with chicken & mutton waste in open ponds. The suroundings are littered with this waste. This attracts birds in large numbers. These birds drift close to the airfield and over it, thereby posing a threat to flying.
3. Initially, FIR was registered against 20 named accused persons. In the course of investigation, complainant gave his further statement and alleged that in addition to 20 named persons, 109 villagers of Razakpalya are also involved in illegal fish farming in ponds. Based on this statement, charge sheet has been laid against 109 accused persons under Rule 91 of Aircraft Rules.
4. Learned counsel for the petitioners submits that much earlier to lodging of FIR, petitioners themselves had submitted a representation to respondent No.5 namely Assistant Director of Fisheries, Cubbon Park, Bengaluru Urban District, Bengaluru, seeking action against illegal fish farming at Bagalur village. Since the representation was not considered by respondent No.5, the petitioners and other residents of the village approached this Court in W.P.No.33488/2011 and connected matters. This Court allowed the writ petitions by order dated 23.02.2012 directing the fifth respondent to consider the representation in accordance with law. It is further contended that, the prosecution has not produced any reliable material to show that the petitioners herein are involved in rearing fish. Except the oral statement of the complainant no other material is available on record, to show that petitioners herein are engaged in fish rearing activities and therefore, initiation of proceedings against the petitioners being baseless and not supported by any evidence in support of the charges is wholly illegal and abuse of process of the Court.
5. Learned Additional SPP appearing for respondent No.1 argued in support of the impugned charge sheet and contended that the material on record is sufficient to bring home the charge against the accused persons, therefore, there is no reason to quash the proceedings.
6. Counsel for respondent No.2 is absent.
7. Considered the submissions and perused the records.
8. Fish rearing by itself is not an offence under Rule 91 of the Aircraft Rules. However, as there are specific allegations that, for the purpose of rearing fish, chicken and mutton waste are thrown in the open ponds and surroundings are littered with waste, attracting birds which create a threat or danger for the aircrafts, these allegations prima facie attract the ingredients of offence under Rule 91 of the Aircraft Rules. However, insofar as the present petitioners are concerned, there is absolutely no material whatsoever to show that the petitioners herein are indulging either fish rearing or dumping chicken and mutton waste in open ponds so as to attract birds flying in the area or that they are involved in littering the surroundings. As rightly submitted by learned counsel for petitioners, except the further statement of the complainant, there is no other material to show that the petitioners herein are engaged in fish rearing activity either at Razakpalya or in Budansabpalya. On the other hand, the certified copy of the order passed by this Court in W.P.No.33488/2011 and connected matters indicate that the petitioners themselves had submitted a representation to the Assistant Director of Fisheries to take action against illegal fish farming at various ponds in Bagalur Tank and surrounding areas. It is submitted by the learned counsel for the petitioners that Budansabpalya and Razakpalya fall within Bagalur Tank area. There seems to be some force in the submission of learned counsel for the petitioners that when the petitioners themselves had complained against the illegal activities that were carried out in the surrounding area, in the absence of clinching evidence to show that the petitioners were indulging in the very same activities, in my view, initiation of the criminal proceedings against the petitioners cannot be sustained. As held in Bhajan Lal’s case, where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, the inherent power under Section 482 Cr.P.C. is required to be exercised to secure the ends of justice and to prevent abuse of the process of court. As the prosecution has failed to produce any reliable material in proof of involvement of the petitioners in the alleged activities, the prosecution of the petitioners for the alleged offences is wholly illegal, baseless and abuse of the process of Court and cannot be allowed to be continued. Hence, the following order:
ORDER Petition is allowed. The charge sheet in Cr.No.150/2011 for the offences punishable under Rule 91 of the Aircraft Rules, 1937 is quashed only insofar as the petitioners herein namely accused Nos.8, 11, 15, 17 and 19 are concerned.
Sd/- JUDGE TL