21 Aug 2023 12:33 PM GMT
A Kerala Court last week dismissed a plea moved by the State seeking consent to withdraw the proceedings pending against Malayalam actor Mohanlal and others in the ivory possession case.Judicial First Class Magistrate Judge Anju Cletus dismissed the plea noting that the Wild Life Protection Act was implemented to preserve the broader national interests and not individual rights."Considering...
A Kerala Court last week dismissed a plea moved by the State seeking consent to withdraw the proceedings pending against Malayalam actor Mohanlal and others in the ivory possession case.
Judicial First Class Magistrate Judge Anju Cletus dismissed the plea noting that the Wild Life Protection Act was implemented to preserve the broader national interests and not individual rights.
"Considering the legislative intention behind the strict provisions of law, the offences allegedly committed by the accused cannot be viewed lightly. Evidently, it is the larger interest of the country that is affected by the commission of an offence under the Wild Life (Protection) Act and not individual rights of any person."
The actor was booked for illegal possession of two pairs of ivory after the Income Tax Department recovered illegal ivory from his Kochi residence in a raid in June 2012. A case was accordingly registered against him by the Forest Department under Section 50 of the Wild Life Protection Act.
The actor had applied to the government in January 2016 and September 2019 respectively, urging it to withdraw the case claiming that the ivory was purchased legally. Following this claim, he was provided relaxation by the State which prompted the prosecution to file a plea to withdraw the case. However, the Judicial First Class Magistrate had dismissed the State's plea where it had contended that proceeding with the case would be a futile exercise and a waste of the "precious time of the court".
Subsequently, the actor moved the Kerala High Court challenging the said order. Earlier this year, the High Court dismissed the plea but also asked the magistrate to consider the State's plea afresh.
Accordingly, the State approached the magistrate with a fresh plea to withdraw the case.
The prosecution sought withdrawal arguing that the actor had acquired ownership certificates for the said ivory tusks under the Wildlife Protection Act, rendering the prosecution against them invalid. The prosecution further asserted that the ownership certificate eliminates the grounds for charging the accused.
However, upon considering the Wildlife Protection Act, the Court found that ivory tusks, belonging to a highly protected Schedule I animal, fall under this Act. Thus, the accused herein were charged with a serious offence under the Act, non-compoundable and carrying a minimum prison term.
It was further found that the withdrawal petition lacks proper application of mind, particularly since it was filed without revealing the challenge against the ownership certificate before the Hih Court. The court's confidence in the withdrawal petition was further shaken by the absence of a gazette notification supporting the declaration of possession of the elephant tusks.
The Assistant Public Prosecutor had vehemently argued that the delay in filing the occurrence report and initiating the prosecution raises suspicions of an afterthought. However, the court held that neither the State nor other parties can claim the benefit of laches for the delay.
"The investigation and prosecution being the prerogative of the State, no one else can be found fault with for the inordinate delay in the proceedings. This court is of the view that no party including State can claim the benefit of the laches from their side."
The court also examined if withdrawing the prosecution would uphold the broader ends of public justice, emphasizing the need for the prosecutor's independent opinion and ensuring no interference with justice.
Reliance was placed in several legal cases to highlight that withdrawal of prosecution should be an exception, not the norm, and should not undermine public confidence in the judicial system.
As such, the withdrawal petition was dismissed due to the ongoing challenge against the ownership certificate and the absence of proper documentation and application of mind. It was stressed that the question of prosecution continuation should be determined after the High Court's decision on the validity of the ownership certificate.
Notably, the accused including the actor were directed to appear before the trial court on November 3.
Case Title: State of Kerala v Mohanlal & Ors.
Click Here To Read/Download The Order