Kerala High Court Criticizes Magistrate For Taking Cognizance Against Unauthorised Use Of Elephant Under 'Non-Existing Provision'
Manju Elsa Isac
7 Oct 2024 5:30 PM IST
While hearing a matter on use of elephants in a festival without permission, the Kerala High Court said that taking cognizance of an offence is not a mechanical process but a "solemn function", adding that the court taking cognizance is not a rubber stamp of the investigating agency.
In doing so, the high court quashed the proceedings before the Magistrate's court which had taken cognizance of an offence allegedly committed under A(17) of the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 based on a charge sheet submitted by the Range Forest Officer. However, the high court noted that no such provision existing in the Rules.
A single judge bench of Justice P. V. Kunhikrishnan noted that this shows that the Magistrate "mechanically recorded the provisions" contained in the chargesheet without even verifying the Rules 2012. It said:
"Such a mechanical process from a court of law is to be deprecated. A court of law has to proceed in accordance with the law even if wrong Sections are noted in the final report, complaint, etc. Taking cognizance based on a final report or complaint is solemn function because a person is directed to be summoned to a court of law. The mechanical process of adopting the final report will lead to serious consequences...The court taking cognizance is not a rubber stamp of the investigating agency or the complainant. While taking cognizance the court should apply its mind and find out whether facts constitute the offence. A court of law replicating the provisions mentioned in the final report, complaint etc while taking cognizance will lead to serious consequences".
The order was passed in a plea moved by 15 persons who had approached the high court seeking quashing of the proceedings before the magisterial court which had taken cognizance of the offence based on the forest officer's chargesheet.
They were alleged to have used several elephants in a festival–"Gaja Sangamom' without obtaining sanction from the authorities. However, they submitted that even if the allegations are taken at face value, no offence is committed.
The Public Prosecutor submitted before the Court that the intended provision was Rules 10(4) of the Rules. Sub-clauses (i) to (xviii) of Rule 10(4) lays down the manner in which elephants shall be used in festivals.
The court however said, "While taking cognizance based on a complaint or charge sheet, the Court has to apply its mind. It is not a mechanical process. What is stated in the final report or complaint cannot be blindly accepted by the Court. While taking cognizance, the offences alleged are to be verified by the Court and whether taking cognizance for the offences alleged as per law is permissible is also to be decided at that stage".
The court after perusing the 2012 Rules said that "A(17)" was not mentioned in the rules, and for this reason alone the cognizance order must be set aside.
The Court further observed that the charge sheet does not have any specific allegation which is a violation of the Rule.
Accordingly, the Court ordered that the prosecution cannot be continued against the petitioners.
The Court further directed the High Court Registrar in charge of District Judiciary to forward a copy of the court's order to all Principal Court Judges in the state who will further circulate it to all concerned courts.
Case Title: Shastra Sharman Namboothiripad and Others v State of Kerala
Counsel for the Petitioners: Adv. N. M. Mahesh
Counsel for the Respondent: Public Prosecutor Adv. Sangeetharaj
Case No: Crl.M.C. 2808 of 2017
Citation: 2024 LiveLaw (Ker) 617
