TITTY ALIAS GEORGE KURIANversusTHE DEPUTY RANGE FOREST OFFICER REVIEW PETITION (CRIMINAL) NO. 593 OF 2018 IN

1230                     [2020] REPORTS
                SUPREME COURT   13 S.C.R. 1230              [2020] 13 S.C.R.


 A                     TITTY ALIAS GEORGE KURIAN
                                         v.
                   THE DEPUTY RANGE FOREST OFFICER
                    Review Petition (Criminal) No. 593 of 2018
 B                                       In
                        (Criminal Appeal No. 758 of 2018)
                              DECEMBER 09, 2020
            [ASHOK BHUSHAN AND INDU MALHOTRA, JJ]
 C             Wild Life (Protection) Act, 1972 – ss.2, 9, 11, 12, 39A, 49A,
       51; Part II of Schedule I – Turtle seized from respondent – Criminal
       proceedings quashed by High Court – Held: Judgment dtd.16.05.18
       recalled – s.9 prohibits hunting of any wild animal under Schedule
       I, II, III and IV except as provided u/ss.11 and 12 – On facts, Turtle
       seized is not included in Part II, Schedule I and it was already freed
 D
       on the second day of its seizure thus, the High Court committed no
       error in quashing the criminal proceedings – Code of Criminal
       Procedure, 1973 – s.482.
            Allowing the review petition and dismissing the appeal, the
       Court
 E
              HELD: Section 9 of the Wild Life (Protection) Act, 1972
       prohibits hunting of any wild animal under Schedule I, II, III and
       IV except as provided under Sections 11 and 12. In case a person
       hunts any of the wild animals which are included in Schedule I to
       IV, it becomes an offence inviting the penalty under Section 51 of
 F     the Act, 1972. A perusal of the letter given by the Veterinary
       Surgeon indicates that Veterinary Surgeon has identified the
       Turtle as ‘Indian Flap Shell (Lissemy’s Punctata)’ whereas the
       Turtle which is included in Part II of Schedule I of the Act, 1972
       is “Indian Soft-shelled Turtle (Lissemys punctata punctata).”
 G     Lissemys punctata is a species of which Lissemys punctata is
       infraspecies. Although Lissemys punctata is included in Part II
       of Schedule I of the Act, however, the Turtle which has been
       seized is not that which is included in Part II of Schedule I. In the
       facts of the present case, on the face of it, the Turtle seized is not
       included in Schedule I Part II and the Turtle having already been
 H
                                       1230
   TITTY ALIAS GEORGE KURIAN v. THE DEPUTY RANGE                               1231
                   FOREST OFFICER

freed on the second day of its seizure, the High Court did not                 A
commit any error in quashing the criminal proceedings registered
for Wild Life offences. No good ground found to interfere with
the order of the High Court. [Paras 12-14][1233-H; 1234-A-D]
      CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) No. 593 of 2018 in Criminal Appeal No. 758 of 2018.                 B
      From the Judgment and Order dated 16.05.2018 of the Supreme
Court of India in Criminal Appeal No. 758 of 2018.
      Abhilash M.R., Mohammed Sadique T.A., Nishe Rajen Shonker,
Advs. for the appearing parties.
                                                                               C
      The Judgment of the Court was delivered by
      ASHOK BHUSHAN, J.
       1. We have heard Shri Abhilash M.R., learned counsel appearing
for the petitioner and Shri Nishe Rajen Shonker, learned counsel for the
respondent.                                                                    D
      2. We find sufficient ground to review the judgment dated
16.05.2018. The order of this Court dated 16.05.2018 is recalled. The
review petition is allowed.
       This appeal has been filed against the judgment dated 16.11.2017
of the Kerala High Court by which the High Court has allowed Criminal          E
M.C. No.2720 of 2017 filed by the respondent by quashing proceedings
in C.C. No.706 of 2016. The Deputy Range Forest Officer aggrieved by
judgment of the High Court has come up in this appeal.
      4. The facts of the case briefly are:
                                                                               F
       On 25.07.2016 from the respondent, Titty alias George Kurian a
Turtle was seized by Rani Forest Flying Squared Range Staff at
Karumbanakulam. The offence under Section 2, 9, 39A, 49A and 51 of
the Wild Life (Protection) Act, 1972 was registered. A charge-sheet
was submitted by the Forest Officer. After seizure of the Turtle, the
same was sent for identification to Veterinary Surgeon who by its letter       G
dated 26.07.2016 identified the Turtle on inspection as “Indian Flap Shell”,
the scientific name is “Lissemys Punctata”. The Court on 27.07.2016
directed the Turtle to be freed.

                                                                               H
1232             SUPREME COURT REPORTS                          [2020] 13 S.C.R.


 A             5. The respondent-accused filed an application before the High
       Court for quashing the criminal proceedings. It was submitted before
       the High Court that Indian Flap Shell Turtle which was seized was not
       found included in Schedule I of Part II of the Wild Life (Protection)
       Act, 1972, hence, such possession of the Turtle of that species will not
       invite the offences alleged against the accused. The High Court being
 B
       satisfied that Turtle seized was not that species of Turtle which is included
       in Part II of Schedule I of the Act, 1972, allowed the application and
       quashed the criminal proceedings. Aggrieved by the judgment of the
       High Court this appeal has been filed by the Deputy Range Forest Officer.
              6. Learned counsel for the appellant contends that whether Indian
 C     Soft-shelled Turtle (Lissemys punctata punctata) and Indian Flap Shell
       Turtle (Lissemys puntata) are two different species or part of single
       species or a subspecies of the latter are matters of expert evidence and
       ought to have been decided only under trial and the High Court committed
       error in allowing the application under Section 482 Cr.P.C.
 D            7. Learned counsel for the respondent supporting the order of the
       High Court contends that when the Turtle seized does not find mention
       in the Schedule of the Wild Life (Protection) Act, 1972, there is no
       occasion for registering any offence, and the registration of offences
       has rightly been quashed by the High Court with which no interference
 E     is called for. He further submits that Turtle was seized on 25.07.2016
       and was freed on 27.07.2016 and being not available for further
       examination the report of the Veterinary Surgeon is only material to
       look into and scientific name which was given by the Veterinary Surgeon
       does not find place in the Schedule of the Act, 1972.

 F           8. We have considered the submissions of the learned counsel for
       the parties and have perused the records.
             9. The following reasons have been given by the High Court for
       allowing the Criminal M.C. of the respondent:
             “4. On a perusal of Part II of Schedule I of the Act, it seems that
 G           Item No.8 is Indian Soft Shell Turtle (Lissemys Punctata
             Punctata). The certificate issued by the Senior Veterinary Surgeon
             to the Range Officer, Erumely in this case shows that the Turtle
             seized in this case is Indian Flap Shell Turtle (Lissemys Punctata).
             The above said Schedule does not contain the species named Indian
             Flap Shell Turtle. When the Turtle in question is not one belongs to
 H
  TITTY ALIAS GEORGE KURIAN v. THE DEPUTY RANGE                              1233
        FOREST OFFICER [ASHOK BHUSHAN, J.]

      Indian Soft Shell Turtle, the capture or its possession cannot be      A
      treated as an offence within the meaning of the Wild Life
      Protection Act. Matters being so, all further proceedings in
      C.C.No.706/2016 of the Judicial First Class Magistrate’s Court-
      II, Kanjirappally, based on OR No.5/2016 of the Erumely Forest
      Range as against the petitioner are liable to be quashed.”
                                                                             B
       10. After seizure of the Turtle on 25.07.2016 on next day the
reference was made by the Deputy Range Officer to Veterinary Surgeon
for identification of the Turtle. The Veterinary Surgeon after inspection
wrote a letter on 26.07.2016 to the Range Officer to the following effect:
      “From,                                                                 C
                 Dr. Anil Kumar T Senior Veterinary Surgeon
                 B.V. Sc & A.H. Veterinary Hospital Reg. No.1329,
                 Erumely.


      To                                                                     D
       Range Officer Erumely,
       Erumely.


                    Subject: Species identification
                                                                             E
           Reference: Deputy Range Officer on 26.07.2016.
              As per the above reference on 26.07.2016 a turtle belonging
      to a turtle family was brought for identification, and on inspection
      it is found that the turtle is Indian Flap Shel and the scientific
      name is “Lissemy’s Punctata” and therefore it is certified.
                                                                             F

      26-07-2016
      Erumely”
       11. The Veterinary Surgeon identified the Turtle as ‘Indian Flap
Shell’ and the scientific name “Lissemy’s Punctata”. Item No.8, Schedule     G
I Part II is to the following effect:
      “8. Indian Soft-shelled Turtle (Lissemys punctata punctata).”
      12. Section 9 of the Act, 1972 prohibits hunting of any wild animal
under Schedule I, II, III and IV except as provided under Sections 11
                                                                             H
1234            SUPREME COURT REPORTS                            [2020] 13 S.C.R.


 A     and 12. Sections 11 and 12 are the provisions where hunting is permitted
       by the permission of Chief Wild Life Warden. In case a person hunts
       any of the wild animals which are included in Schedule I to IV, it becomes
       an offence inviting the penalty under Section 51 of the Act, 1972.
              13. A perusal of the letter given by the Veterinary Surgeon as
 B     extracted above indicates that Veterinary Surgeon has identified the Turtle
       as ‘Indian Flap Shell (Lissemy’s Punctata)’ whereas the Turtle which is
       included in Part II of Schedule I of the Act, 1972 is “Indian Soft-shelled
       Turtle (Lissemys punctata punctata).” Lissemys punctata is a species of
       which Lissemys punctata is infraspecies. Although Lissemys punctata is
       included in Part II of Schedule I of the Act, however, the Turtle which
 C     has been seized is not that which is included in Part II of Schedule I. In
       the facts of the present case, on the face of it, the Turtle seized is not
       included in Schedule I Part II and the Turtle having already been freed
       on the second day of its seizure, the High Court did not commit any error
       in quashing the criminal proceedings registered for Wild Life offences.
 D           14. We do not find good ground to interfere with the order of the
       High Court by which the High Court has exercised its jurisdiction under
       Section 482 Cr.P.C. On the facts of the present case, the appeal is
       dismissed.

 E
       Divya Pandey                       Appeal dismissed and Review Petition allowed.




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