-By Nishtha Gupta
INTRODUCTION
India has enacted several special laws to ensure speedy and efficient disposal of cases applying to a special category of offences. One of such special legislations is the Wildlife Protection Act, 1972 [“WLPA”]. It has been enacted for the protection of flora and fauna and for the overall ecological and environmental security of the country. It provides for unique and different procedures to be followed in case an offence is committed. On the other hand, we have our criminal major acts, which are the Criminal Procedure Code, 1973 [“CrPC”] and the Indian Penal Code, 1860[“IPC”]. While it would appear that the demarcation and the procedures are vividly discernible, there exists certain nebulous patches in the special legislation which calls for dependence on the Criminal procedure code. The WLPA as it appears is not a complete law. There are no procedures enlisted for arrest, search and seizure, issuing of warrants and investigation. This requires a dependence on the CrPC, which poses a barrier given the different scopes of the acts. The author would be focusing on the provisions of confessions and statements in the CrPC and how the WLPA is not equipped to exercise these functions.
RELEVANT PROVISIONS
The CrPC (Sections 162-164) and the Indian Evidence Act, 1872 (Sections 24-26) have clearly stated that confessions made to police officers are not valid. It, thereby, becomes imperative to clarify that forest officers are not police officers as enumerated in the Indian Police Act, 1861. This would mean that confessions made to forest officers are valid and admissible. However, the question arises whether they are judicial (those which are made before the magistrate under Section 164 CrPC during inquiry or trial) or extrajudicial confessions (those made to any other person not authorised by law to record confessions). Section 50(8) of the WLPA states “any officer not below the rank of an Assistant Director of Wild Life Preservation or 8 [an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the powers, for purposes of making investigation into any offence.” Moreover, as stated further in this section, the forest officers are empowered to perform functions including- receiving and recording evidence, issuing search warrants, compelling discovery and enforcing attendance of witnesses, which in conventional criminal procedures are performed by the judicial magistrates.
Section 50(1)(c) empowers a Chief Wildlife Warden or authorised officer to “arrest person in violation of the act without warrant in appropriate cases”. Further Section 50(4) states “Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate.” The presence of difference sections in the WLPA clearly signifies that there exists an overt difference between forest officers and judicial magistrates, who are empowered to try the offence. However, there exists no tangible difference between the scope and limitations of the powers and functions of magistrates and forest officers. Section 164 CrPC states “Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation.” Moreover, the section further states that there is a procedure to be followed for recording a judicial confession which involves the accused to be given fair warning and even sending the accused to judicial remand, out of the influence of the arresting agency.
DISCREPANCIES IN WLPA
The simultaneous reading of the above sections gives rise to the question whether the forest officers (who perform the conventional functions of a magistrate) are actually empowered to exercise the powers of the judicial magistrate which are enumerated under Section 164 of the criminal procedure code. Are forest officers subjected to Section 80 of the Indian Evidence Act (which presumes that documents and confessions recorded and produced in accordance with law are genuine). If we assume they are, the next question that arises is whether they are also empowered to send the accused giving confessional statement to judicial remand, it being a mandatory requirement of Section 164. It had been laid down in the case of Rabindra Kumar Pal vs. Republic of India that the conditions of judicial remand and fair time to the accused should be abided by, before the confessions can be recorded by a judicial magistrate. It was also held that the accused has to be removed from the custody of the arresting agency for the confession to be fairly and procedurally recorded.
The other issue that arises due to an unclear division and limitation on the powers is the fact that judicial magistrates have to remove the accused form the custody of arresting agency before recording the confession. In the case of the wildlife protection act, the forest officers perform the functions of both the arresting agency and of the judicial magistrates as described earlier. This poses several questions to be pondered upon- Does this require the Assistant Conservator of forests or the Assistant Director of forests to take out the accused from the custody of a junior forest officer who has arrested the accused? Would it be fair to consider the custodies of officers from the same department different only because of the difference in seniority or post? Would arrest by forest officers of a different rank amount to custody of an arresting agency, and would this thereby require that the concerned forest officers should allow the accused time to reflect upon his confessional statement. It would also determine whether Section 24 of the Indian evidence will be applicable to the case. Section 50(8) of the WLPA merely provides for recording confessions without adequate procedural safeguards, as provided under Section 24 of the Indian Evidence Act. It has also been held through the case of Deoman Upadhyay vs. State of UP that confessions made under threat, influence or without following the due procedure will not be admissible. It thereby appears that the WLPA is not fitted to answer these questions and that it requires certain amendments and clarity in investigative techniques and procedures.
CONCLUSION
It appears through these discrepancies that the wildlife protection act is ill equipped to answer the above mentioned questions. There is no clarification on the level of interaction or reliance a special legislation like this will have to place on the uniform criminal acts. Moreover, the WLPA itself does not provide for a clear delineation of the functions of forest officers. There appears to be swampy area when it comes to the powers forest officers can exercise without intruding into the powers of judicial magistrates.
It is suggested that the legislature amend the wildlife protection act and delimit the boundaries of these officers. The WLPA should clarify if it intends to place any reliance on the criminal procedure code for investigation procedures. It is necessary for the act to clarify the scope of powers and functions of forest officers to ensure that they do not intrude into the functions of judicial magistrates and do not tamper with the procedure for investigation. The current legislation is covertly allowing them the authority and grey area to trespass a judicial officer’s jurisdiction, which if misused can pose a threat to the functioning of criminal justice system. Natural justice requires an opportunity for every accused to be heard and with there being an overlap in powers of administrative and judicial officers, this rule is being subverted, where only an amendment can remedy this flaw in the code.
[[The author, Nishtha Gupta, is a 3rd year student of B.A. LL.B.(Hons.) at NALSAR University of Law, Hyderabad.]