(2015) 410 KLW 555
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN, C.J. and A.M. SHAFFIQUE, J.
W.P(C) No.29880 of 2012
Dated this the 12th day of June, 2015
PETITIONER(S)
GREEN CROSS WORLD ENVIRONMENT PROTECTION ACTION GROUP REP. BY ITS PRESIDENT, ABU POOKOT S/O.KOZHIKKODAN MOHAMMED, KOZHIKKODAN HOUSE LAKKIDI P.O., WAYANAD.
BY ADVS.SRI.A.X.VARGHESE SRI.A.V.JOJO
RESPONDENT(S)
1. UNION OF INDIA REPRESENTED BY SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS CENTRAL SECRETARIAT, NEW DELHI-110 001.
2. THE CHAIRMAN THE TIGER CONSERVATION AUTHORITY OF INDIA NEW DELHI-110 001.
3. THE CHIEF WILD LIFE WARDEN KERALA STATE, THIRUVANANTHAPURAM-695001. WP(C).NO. 29880 OF 2012 (S) 4. THE DIRECTOR CENTRAL BUREAU OF INVESTIGATION, CHENNAI-600 001.
R4 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, SC, C.B.I. R3 BY SPECIAL GOVERNMENT PLEADER SHRI M.P.MADHAVANKUTTY R1 & 2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
J U D G M E N T
Ashok Bhushan, C.J.
This Writ Petition, filed as a Public Interest Litigation, questions the killing of a Tiger on 02.12.2012 by the officials of the Forest Department of the State and prays for a direction to the Central Bureau of Investigation to investigate into the killing of a male Tiger. Writ Petitioners further pray for a direction to investigate and identify the forest officials who hunted the Tiger.
2. In the Writ Petition the following prayers are made:
(i) Issue a Writ of Mandamus or appropriate writ, order or direction directing the Central Bureau of Investigation to investigate into the killing of the male tiger aged 10 years which took place on 2/12/2012 in the peripheries of Wayanad Wild Life Sanctuary in the State of Kerala.
(ii) Issue a Writ of Mandamus or appropriate writ, order or direction directing the investigation Team to identify those forest officials who hunted and killed the tiger and to prosecute them for committing the offences under the Wild Life Protection Act.
(iii) Issue a Writ of Mandamus or appropriate writ, order or direction directing the respondents 1 to 3 to formulate guidelines to protect the tigers in exercise of the powers vested in the Central Government as provided under the Wild Life Protection Act in the light of the increasing instances of man-animal conflict.
(iv) Issue a Writ of Mandamus or appropriate writ, order or direction directing the respondents 1 to 3 to ensure effective and speedier mechanisms to prevent the killing of tigers in the in the Wild Life Sanctuaries and National Parks in the State of Kerala.”
3. Brief facts of the case as emerging from the pleadings of the parties are:
In the month of November, 2012 near the North Wayanad Forest Division a Tiger was sighted. The people of the locality who were already agitated on the rumour that a Tiger Reserve was to be formed in Wayanad District started raising protest and road blocks. On 11.11.2012 the Tiger killed a milk cow in Begur Range of North Wayanad Forest Division. On 12.11.2012 two more cows were killed. Public agitated violently and attacked the forest station. The Divisional Forest Officer sought permission to trap the animal and ultimately the Tiger could be trapped successfully on 14.11.2012 and released in Kurichiyat Range of Wayand Wildlife Sanctuary bordering Karnataka Forest. The release was made on the recommendation of the Forest Veterinary Officer who certified that the animal is free from any disease. Subsequent to the release of the Tiger, again a series of incidents of cattle lifting were reported from Sulthan Bathery, about 25 kms away from the area where the Tiger was released. About 16 animals, i.e., cows and goats were killed by the Tiger due to which people were agitated and started demonstration against the Forest Department. The demonstration led sometimes picketing forest officials and detaining them. The Chief Conservator of Forests, Wild Life, received information that the incidents must be by the Tiger which was released on 14.11.2012. The District Magistrate, Wayanad also wrote to the Chief Conservator of Forests on 20.11.2012 about the attack of the Tiger. Several incidents of attack by the Tiger in the human habitat were reported by the Collector. The Collector reported that the Tiger is learned to be hidden in the nearby plantation. The Collector reported that life and property of the public in the area are in great trouble hence it is necessary to capture or kill the Tiger immediately. After receiving the report from the forest officials and the District Collector, Wayanad, the Principal Chief Conservator of Forests issued an order dated 20.11.2012 in exercise of the powers under
Section 11(1)(a) of the Wildlife (Protection) Act, 1972
to hunt the Tiger by tranquilizing or using cages failing which by other means. Team was constituted under the leadership of the Chief Conservator of Forests (Wildlife), Palakkad. Several additional teams were also constituted by the Principal Chief Conservator of Forests to do the needful. Different teams constituted by the Principal Chief Conservator of Forests started combing and camping in the areas. Camping in the hideouts with trap cages also started. On 01.12.2012 the Tiger was seen in the area. Two teams were sent to tranquilize the Tiger. On 02.12.2012 in the midnight the Tiger again injured a cattle. Other attempt was made by the Tiger to lift a goat. The staff and patrolling Chief Conservator of Forests visited the location. The area was surrounded by the local people. The veterinarians with tranquilizing equipments reached the area and the Tiger could be traced out. An attempt to tranquilize was made in the morning. The second dart to tranquilize the Tiger was administered to the Tiger. The Tiger turned and stood on its hind legs. Seeing the same a Beat Forest Officer who was carrying a gun shot the Tiger using the Departmental rifle which killed the Tiger. All the important newspapers covered the news of hunting the Tiger. Questions were also raised as to whether it was necessary to kill the Tiger and why the Tiger could not be captured and reallocated. The Principal Chief Conservator of Forests by order dated 03.12.2012 directed an enquiry by the Additional Principal Chief Conservator of Forests on three issues. This Writ Petition was filed on 05.12.2012 praying for the reliefs as noted above.
4. In the Writ Petition counter affidavit duly sworn by the Principal Chief Conservator of Forests has been filed to which reply affidavit has also been filed by the petitioners. Learned Government Pleader by an affidavit dated 31.10.2014 brought on record the report of the enquiry by the Additional Principal Chief Conservator of Forests dated 19.06.2013 with certain other materials. By a memo dated 21.05.2015 the Special Government Pleader has also brought on record the “Standard operating procedure to deal with the emergency arising due to straying of Tigers in human dominated landscapes.”
5. Shri A.X.Varghese, learned counsel for the Writ Petitioners submitted that the act of killing the Tiger on 02.12.2012 was wholly unjustified. It is submitted that Tiger being National Animal was required to be protected by all means. It is submitted that it was the duty of the forest officials to capture the animal and re-allocate the same to the Forest as required by the guidelines issued by the Principal Chief Conservator of Forests himself as well as the National Tiger Conservation Authority. The forest officials acted like a layman in shooting the Tiger. It is submitted that the forest officials ought to have kept away the common people from the site. It is submitted that killing of the Tiger in such a manner is the issue which required to be enquired by the Central Bureau of Investigation. It is submitted that on an earlier occasion in a similar manner a female leopard was killed in Pathanamthitta District in the presence of several officials of the forest and police through one person hired by the forest officials which issue was also raised before this Court in W.P(C) No.9461 of 2012 decided on 14.08.2012. It is submitted that repeat of such incidents indicate the callousness of the forest officials in handling such issues. Action of the forest officials is a matter of great concern to animal lovers and object of the conservation of National Animals.
6. Shri M.P.Madhavankutty, learned Special Government Pleader (Forests) refuting the submissions of the learned counsel for the petitioners contended that present is a case where the Tiger was killed by a forest official due to the unfortunate situation which developed on the site on which the Tiger was found whereas the forest officials took every effort to tranquilize the Tiger with intention to re-allocate it to the forest. But in spite of administering the second tranquilizer, a beat forest guard took a decision to shoot the Tiger since he found the Tiger standing on his hind legs, considering the safety of the public and officials. It is submitted that the fact that the same Tiger was tranquilized by the Forest Department and reallocated to the forest area on 12.11.2012 which itself indicated that the forest officials were keen to capture the animal. It is further submitted that the action of forest officials was fully in accord with the permission granted by the Principal Chief Conservator of Forests by his order dated 20.11.2012 where permission was granted to hunt the Tiger. It is submitted that an enquiry was immediately directed by the Principal Chief Conservator of Forests which covered certain lapses on the part of the forest beat guard and disciplinary proceedings were initiated against C.R.Joseph, Beat Forest Official and by proceedings dated 09.01.2014 he has been punished with censure. It is submitted that guidelines issued by the National Tiger Conservation Authority are followed. The Chief Conservator of Forests also issued Circulars and guidelines for forest officials to act and follow the steps to capture the animal who strayed in human habitat. It is submitted that in the present case details of the incident and happening are well known to every one and there being no issue regarding the facts which really took place, there is no necessity to direct any investigation by the CBI.
7. Shri P.Chandrasekhara Pillai, learned Standing Counsel for the CBI has also opposed the Writ Petition. It is submitted that present is not a case where any direction be issued by this Court for carrying out any investigation by the CBI since necessary steps have already been taken by directing investigation by the Principal Chief Conservator of Forests and enquiry report is already on record.
8. We have considered the submissions of learned counsel for the parties and perused the records.
9. The sequence of events which took place before the happening on 02.12.2012 has been elaborated in the affidavit dated 08.03.2013 filed by the Principal Chief Conservator of Forests which was filed in response to the order of this Court. Shorn off other details, detail events have been noticed in paragraph 9 of the counter affidavit which are to the following effect:
“9. On 29th November 2012, the third respondent again visited Wayanad and inspected the sites of conflict and reviewed the operations carried out so far. The Honourable Minister for Forest, Sports and Cinema inspected the affected places and reviewed the actions taken by the Forest Department and explained the stand of Forest Department to the media and local community on 29th November 2012. On 30th November 2012, the Honourable Chief Minister of Kerala visited Naiketty region and held a public meeting on cattle lifting issue in and around Wayanad Wildlife Sanctuary. He held a meeting with the public representatives in the Collectorate and pacified them by explaining the efforts taken by the Government to solve the problem. On 1st December 2012, a meeting was convened by the District Collector with all-party action committee members. The meeting was also attended by the Superintendent of Police, Additional District Magistrate and people's representatives. During perambulation and tracking to tranquilize the tiger on 1st December 2012, there was an instance of tiger charging at Shri. Madhusoodanan, Range Forest Officer, Flying Squad, Kasargod and he had a narrow escape. On 1st December 2012 by 6.30 p.m., the tiger crossed the National Highway and strayed out to Thelampetta region which is a thickly populated area and located about 2 kilometer from the boundary of the Wildlife Sanctuary. By 8.30 p.m., the tiger was sighted in Pulimaram vayal (paddy field). Two darting teams were sent to tranquilize the tiger. On search, it was revealed that the tiger had moved out. The situation was very tense and grave in the locality throughout the night. Efforts were made in the night to drive back the animal to forest and for this purpose 11 vehicles were deployed for patrolling the region. But the animal neither could be tranquilized nor could be driven back to the forest area. On 2nd December 2012 by 1.15 p.m., the tiger again injured a cattle owned by Sri. Thankappan, Kaithavely and by 1.35 a.m. another attempt to lift a goat owned by Sri. George Varghese, Chanthiam was made at Thelampetta from his cattle shed which was a solid one with iron mesh and pucca leopard/tiger proof and consequently the tiger was injured during his attempt to break the mesh. The staff on patrolling including the Chief Conservator of Forests (Wildlife), Palakkad visited the location by 2 a.m. and the area was surrounded by the local people. The people were advised by the forest officials to set camp fires near their cattle sheds. The veterinarians with tranquilizing equipments reached the area by 3.30 a.m. On 2nd December 2012 morning, the tiger trail was seen entering towards coffee plantation owned by Shri. George Varghese, Chanthiam. It was confirmed that the tiger didn't return to forest and stayed back in the human settlement itself causing great anxiety and panic among the local people. Further reinforcement of patrolling staff was done and perambulation and tracking started again at 6 a.m. to tranquilize the animal and the same could be traced out and an attempt to tranquilize was made at 8.20 a.m. Even though the shot hit the animal, the induction of anesthesia was not observed up to 1 hour and the animal was active and tried to charge on the tracking team. Meanwhile, the public gathered and followed the tracking teams and mob became uncontrollable. There was no sufficient police personnel to control the mob. They were moving along with the forest staff shouting and running hindering and obstructing the entire scientific operations. Since the induction of anesthesia was not observed for 1 hour and the animal had become a serious threat to human life in human habitation, it was decided to administer a fresh dose of tranquilizing drug which was administered at 9.50 a.m. Suddenly the animal turned and stood on its hind legs. Seeing the posture of the animal the Beat Forest Officer Shri. C.R. Joseph who was carrying the gun, shot the animal for protecting his life, tracking teams life and the life of general public. The shot, fired using a . 315 departmental rifle, which hit the tiger on the head instantly killing the animal. Amidst the commotion prevailed in the spot ultimately, it was the momentary judgment of an individual officer which lead to the shooting of the animal. Whether his action was justified or not will be revealed after the enquiry ordered by this respondent. A true copy of the order dated 03.12.2012 for commencing enquiry is produced herewith and marked for identification as Exhibit-R3(i).
As has been noted above, after the incident of killing of the Tiger on 02.12.2012 all important newspapers published the news. The Principal Chief Conservator of Forests on 03.12.2012 has initiated enquiry on three aspects noticed in the said order which are to the following effect:
'”1. Did the circumstances justify the killing of the animal even after administering two doses of tranquilizers?
2. Was the animal actually released at Ermavu near Doddakulassi in Kurichiayat Range as was done in a similar instance in March 2012?
3. The circumstances and persons responsible for using the wrong photograph for identifying the animal sighted at Naikatty area?”
10. The enquiry report which was submitted by the Additional Principal Chief Conservator of Forests is already brought on record by the learned Special Government Pleader as Annexure-R3(r). The Additional Principal Chief Conservator of Forests (Vig.) after conducting field inspection and gathering relevant evidence and examining 10 witnesses recorded his recommendation in paragraphs 7.1 and 7.2 which are quoted as below:
“7.1 Appropriate action may be taken against the Beat Forest Officer Shri. C.R. Joseph who shot dead the tiger even after three doses of tranquilizer drugs were given and the animal was about to be sedated.
7.2 A detailed protocol may be developed for smooth and successful capture of wild animals straying into human habitations with the assistance and co-operation of the line Department such as Police, Animal Husbandry and Local Self Government so as to enable the Forest Department to tackle such situations peacefully without public interference.”
In pursuance of the recommendation in the enquiry report charge sheet was given to C.R. Joseph, Beat Forest Official. A punishment of censure was awarded vide order darted 09.01.2014 (R3(s). While awarding the punishment of censure it was observed that he acted to protect his own life and that of others and the action of Shri C.R. Joseph was bona fide which could not be treated as an offence.
11. Details of the happenings which took place on 02.12.2012 having been brought on record and appropriate enquiry having already been completed, there is no dispute to the actual happening on 02.12.2012. It is not in dispute that after administering the second dart of tranquilizer, Shri C.R. Joseph, Beat Forest Official shot the Tiger. There is no reason to accept the prayer of the petitioners to direct CBI enquiry in the matter. Thus the prayer of the petitioners for CBI enquiry cannot be accepted.
12. There being also permission under Section 11 of the Wildlife (Protection) Act and in the enquiry against C.R.Joseph it has been found that he acted bona fide and no offence was committed by him we do not find any error with the action of the authority in not proceeding for prosecution of any forest official.
13. Now the third relief which the petitioners prayed for is a direction for issuing guidelines so that any such event can be avoided in future and the authorities be directed to conserve and protect the National animals. As noted above, Circular No.6 of 2012 was already issued by the Chief Conservator of Forests which has been extracted in the judgment of this Court dated 14.08.2012 in W.P(C) No.9461 of 2012 as noted above. The Division Bench has after noticing the aforesaid Circular observed that the instructions indicated in the Circular have to be strictly complied with. The learned Special Government Pleader has brought on record the standard operating procedure to deal with the emergency arising due to straying of Tigers in human dominated landscapes prepared by the Ministry of Environment and Forests, Government of India, National Tiger Conservation Authority. In paragraph 8 suggested field actions to deal with strayed wild carnivores (tiger/leopard) had been given. Paragraph 9 contains preventive measures to be followed. It is useful to refer to paragraph 8 where the suggested field actions have been given:
(a) At the outset, constitute a Committee immediately for technical guidance and monitoring on day to day basis, as under:-
I. A nominee of the Chief Wildlife Warden
II. A nominee of the National Tiger Conservation Authority
III. A veterinarian IV. Local NGO representative V.A representative of the local Panchayat
VI. Field Director /Protected Area Manager/DFOI/C Chairman
(b) Since it may not be always possible for experts from the Wildlife Institute of India to provide assistance, it is advised that some outside experts may be involved in the ongoing monitoring.
(c) Establish identity of the tiger by comparing camera trap photographs with National Repository of Camera Trap Photographs of Tigers (NRCTPT)/ Reserve level photo database and find out the source area of the animal.
(d) Collect recent cattle/livestock depredation or human injury/fatal encounter data, if any, in the area. If it is an area historically prone to such incidences, detailed research work has to be carried out in order to assess the reasons for the frequent tiger emergencies in the area.
(e) In case of confirmed livestock depredation/human injury/ fatal encounters or frequent straying of tiger near human settlements, set traps (automatic closure) with appropriate luring while avoiding disturbance, to trap the animal. (f)Set up camera traps near kill site to confirm / establish the ID of the animal.
(g) Ensure unobtrusive guarding of the kill to allow feeding of the carcass (if not close to a human settlement) besides safeguarding from poisoning (for revenge killing).
(h) Create 'pressure impression pads (PIPs)' in the area to ascertain the daily movement of the animal, while plotting the same on a map (4”=1 mile scale or 1: 50,000 scale).
(i) Proactively involve District Collector /DM and SSP / SP of the area to maintain law and order in the area, besides avoiding crowding by local mobs. Acquaint them with human-tiger conflict issues and guidelines of the NTA to deal with the situation.
(j) In all instances of wild carnivores like tiger/leopard straying into a human dominated landscape, the district authorities need to ensure law and order by imposing section 144 of the Cr.Pc. This is essential to avoid agitation/excited local people surrounding the animal spot which hampers capture operation, leading to serious injuries on people and staff. It is also necessary that police and local administration be involved at an early stage. Effective coordination with them is critical to control mobs which as has been seen in several instances, worsen the situation and lead to avoidable fatalities/tragedies.
(k) Take help of the district level officials to alert the villages in the vicinity of the area having the spatial presence of the tiger.
(l) If successive trapping efforts fail, chemical immobilization of the wild carnivores should be done by an expert team having a veterinarian, as per the protocol at Annexure -I.
(m) In case, the tranquilized tiger is found to be healthy in prime or young age without any incapacitation (loss of canine, injury, broken paw etc.), as confirmed /certified by the Committee as constituted at para (1), then it may be released after radio collaring in a suitable habitat with adequate prey base, away from the territory of a resident to the National Tiger Conservation Authority. (Under no circumstances an injured/incapacitated tiger should be released back, and the same needs to be sent to a recognized zoo)
(n) Under no circumstances, a tiger should be eliminated by invoking the Wildlife(Protection)Act, 1972, if it is not habituated for causing human death. The guidelines for dealing with 'maneaters' are annexed for compliance/guidance in this regard (Annexure-II).
(o) In case of healthy tiger/encumbered tigress occupying a sugar cane field or similar habitat, attempt should be made first to attract it to nearby forest area, while avoiding disturbance. If such operations fail, the animal should be captured through immobilization for release in low density area of a nearby tiger reserve/protected area after radio collaring.
(p) An authorized spokesperson of the Forest Department, should periodically update the media (if required) to prevent dissemination of distorted information relating to the operation/incidents. Sensalization or distorted information can lead to further damage.
(q) In case monitoring using camera traps (Phase-IV) is ongoing in the area, the minimum tiger numbers based on individual tiger captures, should not be given undue publicity without due cross checking with the National Tiger Conservation Authority.
(r) The Chief Wildlife Warden has to take the final decision on whether a tiger has to be released back in the wild or transferred to a zoo.
(s) It is important to have properly designed suitable cages and transport mechanism which cause least stress to the captured carnivore.”
The National Tiger Conservation Authority which having issued details as quoted above, we are of the view that the Principal Chief Conservator of Forests has to ensure that such guidelines are followed in its letter and spirit by its officials.
14. In the above view of the matter we direct respondents 1 and 2 to take effective and speedier measures in the light of the standard operating procedure brought on record by memo dated 21.05.2014 and take such necessary action as required to inform and educate all its officials so that all appropriate measures be taken for conservation of National animals and the incident which happened on 02.12.2012 may not be repeated.
The Writ Petition is disposed of with the aforesaid direction.
ASHOK BHUSHAN, CHIEF JUSTICE.
A.M. SHAFFIQUE, JUDGE.
vsv