AVDHESH KAUSHAL Vs. STATE OF UTTARAKHAND & ONE ANOTHER
HIGH COURT OF UTTARAKHAND
State Of Uttarakhand And One Another
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(1.) Heard learned counsel for the parties and perused the record.
(2.) In the instant case, no document has been filed to show that the summons was ever served on the applicant Avdhesh Kaushal. The order-sheet of the Court of learned Ist ACJM, Haridwar, nowhere depicted that the service of summons was ever effected on the applicant. Section 62 Cr.P.C. provides for the method of serving the summons. Section 64 Cr.P.C. provides for the service of summons when person summoned cannot be found. If service of summons cannot, upon exercise of due diligence be effected as provided in Sections 62 & 64 Cr.P.C., then Section 65 Cr.P.C. prescribes the procedure. Ordinarily, when the summons is served upon the accused, only then the warrant of arrest may be issued against such an accused.
As said earlier, there is no document on record to show that summons was ever served upon the present applicant. Order-sheet nowhere mentions that the summons was ever served upon the accused. Initially the summons was ordered to be issued against thee accused and then, on one fine morning, bailable warrant was ordered to be issued. Thereafter, without execution of bailable warrant, NBW was ordered to be issued. Hence, this Court has no hesitation in holding that the warrants were wrongly ordered to be issued against the accused-applicant. The application moved under Section 482 Cr.P.C. deserves to be allowed to this extent.
(3.) The question whether offences described in Sections 27, 29 and 52 of the Wild Life (Protection) Act, 1972 are made out against the accused-applicant or not, is a question of fact which cannot be looked into by the High Court in exercise of its power under Section 482 Cr.P.C. Section 27 of the Wild Life (Protection) Act, 1972 provides for restriction on entry in sanctuary. No person shall destroy or remove any wild life from a sanctuary or destroy or damage the habitat of any wild animal, or deprive any wild animal of its habitat within such sanctuary except under and in accordance with the permission granted by the Chief Wild Life Warden. This proposition of law has been laid down in Section 29 of the Act of 1972. Whoever, attempts to contravene or abets the contravention of, any of the provisions of the Wild Life (Protection) Act, 1972 or of any rule or order made thereunder shall be deemed to have contravened that provision or rule or order, as the case may be, according to Section 52 of the said Act. A perusal of the documents which have been filed on behalf of the prosecution, would reveal that these offences are prima facie made out against the applicant. At this stage the High Court is not expected to go into the veracity of Forest Officers version.;
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