Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J., allowing the present petition, quashed the chargesheet filed and made significant observations with respect to Court’s power under Section 482 Criminal Procedure Code.

Brief Facts

The complainant Police Inspector received credible information about illegal activities regarding prostitution by supplying foreign and Indian girls by contacting customers through an international website. The said information was confirmed by sending a decoy. Thereafter, upon receiving the reply regarding the supply of the girls for prostitution at a place called the Kaisar Service Apartment, the complainant and his staff conducted a raid and arrested three accused namely two girls and a man who allegedly supplied the said girls for the illegal act of prostitution. Upon the information gathered from accused 1, it is learned that he solicited the customers through a website designed by accused 4, the present petitioner; Gavin Mendes. After completion of the investigation, the police have submitted the chargesheet arraying the petitioner as accused 4. 

Contentions

It was submitted by the counsel for the petitioner that the accused is a professional software developer and the website made by him was only a fulfillment of a contract that he entered into without knowing the purpose of the other accused. It was further insisted that the name of the petitioner is nowhere found in the FIR and has been later arrayed as an accused in the chargesheet only on the basis of unfound reasons. Another ground urged by the learned counsel for the petitioner is that when there are allegations for an offence under Section 67 of the Information Technology Act, the investigation must be conducted by the concerned Cyber Crime Branch and not by the respondent police, as they have no jurisdiction to do so. Lastly, it was insisted that no prima facie case exists against the petitioner and the charges be quashed accordingly.

The testimony of accused 1 mainly relied on the submissions made by the Prosecution. Moreover, the existence of mala fides and collusion behind designing the website was vehemently insisted.

Observations

The Court making significant observations with respect to the Inherent power of the Court under Section 482 CrPC, cited, Vineet Kumar v. State of U.P, (2017) 13 SCC 369, where the Supreme Court held, “Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal

State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, para 102 which illustrates 7 categories of cases where power under Section 482 CrPC can be rightfully exercised, namely: (i) No prima facie case (ii) no cognizable offence disclosed (iii) allegations in FIR and evidence fails to disclose any offence (iv) non-cognizable offence committed which can be investigated only by an order of Magistrate (v) allegations made are absurd or improbable (vi) express legal bar to the continuance of proceedings (vii) proceeding is manifestly attended with mala fides

 Decision

Allowing the present petition, the Court quashed the case against the accused of the offences punishable under Sections 4, 5 and 7 of the Immoral Traffic Prevention Act, Section 370, 370 A (2), 292 of the Penal Code, Section 67 of Information Technology Act and Section 14 of Foreigners Act. It further held that no prima facie case appeared against the petitioner and that the reasons for arraying him later are not well-founded.[Gavin Mendes v. State of Karnataka, 2020 SCC OnLine Kar 1497, decided on 23-09-2020]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Ajai Lamba and Manish Choudhury, JJ. withheld any further order on the suo moto PIL and directed the Enquiry Commission appointed to furnish the finished and well investigated report before further adjudication.

In the present appeal, the Court discussed the suo moto PIL filed and ordered before according to which an approval allegedly was given for a coal mining project in Saleki Reserve Forest, which is a part of Dehing Patkai Elephant Reserve. It was been pleaded that Dehing Patkai Elephant Reserve of which Saleki is a part, is the largest rainforest in India and stretches for 575 square kilometers across districts of Upper Assam. The virgin forestland also referred to as the ‘Amazon of the East’. Biodiversity of the forestland is rich and unique. Dehing Patkai region continues to be threatened by high polluting industries such as coal mine, oil refineries, and gas drilling which adversely affects the biodiversity of the region. There are varieties of animals and birds living in the area. Large numbers of reptiles that are rare have their abode in the area. It was alleged in the PIL that environmental disaster would be caused if approval was given by the Ministry of Environment, Forest and Climate Change to allow coal mining project in this area without proper scientific study, discussions, and taking into consideration various aspects of protecting the environment.

It was further asserted by the petitioners that environmental impact was to be assessed before any such activity could be allowed in the said area. However, the Environment Impact Assessment Report was not prepared to ensure safeguarding natural habitat and protection of animals, birds and reptile species existing in the region.

T.J. Mahanta, counsel for the State pointed out that the Governor of Assam ordered an enquiry. The fact that an enquiry was ordered from the highest level in the State was reflected in the Assam Gazette published on 20-07-2020.

In exercise of powers conferred under Section 3 of the Commissions of Inquiry Act, 1952, the Governor of Assam constituted a ‘One-Man Enquiry Commission’ headed by Justice B.P. Katakey, retired Judge of the Gauhati High Court to causing an enquiry with the following Terms of Reference for the Commission:

  1. Enquire if from 2003 any illegal activities were undertaken by any organization or individual in and around Saleki Proposed Reserved Forest including the Tikok Open Cast Project of Coal India Limited.
  2. Identify organization(s) and individual(s) responsible for undertaking such illegal mining activities, in and around the aforesaid forest area.
  3. Enquire the manner of processing of any application, by any organization or individual for grant of mining lease in the forest area 2003 onwards, and enquire if grant of any mining lease during the said period was in compliance and in conformity with the provisions of applicable laws.
  4. Assess the extent of illegal mining activities, in and around the forest areas and assess the impact of such activities on the flora and fauna found in and around area.
  5. Enquire and fix responsibility upon government officials of any department found involved in commission of any illegal mining or any other illegal activity in commission or abetment of the aforesaid forest area.
  6. Enquire and suggest measures for recovery of loss, if any, caused due to unlawful coal mining activity under the jurisdiction of Digboi Forest Division, either in the form of rent, royalty, penalty, land arrears or tax in terms of Section 21(5) of the Mines and Minerals (Development & Regulation) Act, 1957 or under any other law in force during commission of offence of illegal mining or commission of any other illegal activity.
  7. Suggest measures for restoration, rehabilitation and reclamation of areas damaged due to illegal coal mining and ancillary activities and approximate amount of costs to be incurred for such purpose.
  8. Find out if any other prohibited regulated activities inside all forests and wildlife sanctuary under Digboi Forest Division and suggest remedial measures to check such activities.

[State of Assam v. Union of India, PIL (Suo Moto) No. 3 of 2020, dated 01-09-2020]

Case BriefsHigh Courts

Kerala High Court: Shaji P. Chaly, J. allowed a writ petition seeking directions for strict and stringent measures to curb the illegal activities and to conduct a thorough investigation into the activities carried out by the Movie Mill Productions, and forest officials in a reserve forest area.

Petitioner was an animal rights activist aggrieved by the permission granted to deposit gravel in the Reserve Forest under Kasaragod Range, Thiruvananthapuram for the purpose of shooting a movie, and inaction of the Government to take disciplinary and other punitive measures against the irresponsible and erring officials who granted permission to do an illegal act of depositing gravel in the reserve forest. The concern of the petitioner was that, the act of the officials was in gross violation of the forest laws and guidelines, causing a serious and irreparable threat to the forest and wildlife.

According to the petitioner, the respondent film company obtained permission from forest officials against the existing forest laws and conditions for film shooting. He sought the immediate intervention of superior forest authorities to stop the atrocities in the forest, but no action was taken against the officials who were guilty of violating forest, wildlife and conservation laws, causing damages to the environment and bio-diversity existing in the said area. Even though the Additional Principal Chief Forest Conservator, Kozhikode had recommended for inquiry and action against the officials who had granted permission, the Government did not take any action against the erring officials. It was also argued that serious and irreparable damages were caused in the forest area due to the dumping of gravel and deposit.

The learned counsel for respondents Sandesh Raja. K. (Special Government Pleader), Philip T.Varghese, Achu Subha Abraham, M.F. Mohammod Siyad,  Thomas T.Varghese,  M.Rajendran Nair, M. Santhy, and  Vishnu J. (Central Government Counsel) refuted the allegations and claims raised by the petitioner. The counsels argued that when the application was submitted by the film producing company seeking permission for film shooting in the forest range, the permission was granted and it was mentioned in the permission order that the applicant and the team had to strictly follow the existing rules and regulations, and had to execute an agreement with the Divisional Forest Officer (DFO), before the commencement of shooting. It was pointed out that the permission was granted in accordance with the existing laws and consequent to the permission, respondent, i.e., the movie company and they had executed an agreement with the DFO. Apart from the conditions contained under the agreement, strict instructions were given to maintain the area as such, and not to dump any waste in the area. It was also submitted that, as alleged by the petitioner, a huge quantity of soil was not dumped in the site in question and permission for carrying gravel was issued on condition that it shall be removed after completion of shooting, respondent had complied with all the condition, therefore, there were no shortcomings on the part of the respondent is using the forest area for film shooting.  According to the DFO, no serious issues had occurred in the forest area, as was alleged by the petitioner. Therefore, he contended that the allegations made by the petitioner in the writ petition were baseless.

The Court observed that the permission was granted for film shooting violating the provisions of the Forest (Conservation) Act, 1980, Wildlife (Protection) Act, 1972 and other environmental laws, especially due to the fact that the movie company was permitted to deposit gravel from outside and form a pucca road so as to facilitate the conveyance. The Court noted that it was clear that serious damages had been caused to the reserve forest consequent to the dumping of gravel in the forest area and making the road and the area more marshy which had interfered substantially with the natural environment and the biodiversity in the area. Therefore, the Court opined that there was duty cast upon the Central Government to initiate action against the erring officials and the movie company for non-forest activities undertaken by them in the reserve forest area by depositing gravel and damaging the environment, bio-diversity, and the flora and fauna, after making due enquiries. It also made clear, if the damages caused due to the deposit of the gravel were not repaired, every step shall be taken by the Central Government to ensure that the same was removed at the earliest and whatever cost suffered on account of the same shall be realized from the movie company. Thus, the writ petition was allowed.[Angels Nair v. Govt. of Kerala, 2019 SCC OnLine Ker 2282, decided on 17-06-2019]