Madras High Court
S.Muralidharan vs Nogaraj on 27 July, 2015
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.07.2015 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN CRL.R.C.Nos.505, 1274, 1275 and 1276 of 2013 and M.P.Nos.1 to 1 of 2013 and CRL.R.C.Nos. 766, 767, 768, 769 of 2013 and M.P.Nos. 1 to 1 of 2013 and CRL.R.C.Nos. 1150, 1154 and 1492 of 2013 and M.P.Nos.1 to 1 of 2013 and CRL.R.C.No. 294 of 2014 and M.P.No. 1 of 2014 Crl.R.C.No.505 of 2013:- S.Muralidharan : Petitioner M/43 years Member, People for Cattle in India 37, Thiruvalluvar Nagar First Street Kottur Chennai-600 085. Vs. 1.Nogaraj 2.State rep. by Inspector of Police Peerkankaranai Police Station Crime No.555/2013 : Respondents PRAYER in Crl.R.C.No.505 of 2013: Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C., against the order in C.M.P.No.4384 of 2013, dated 06.04.2013 passed by the learned Judicial Magistrate, Tambaram. For Petitioner : Mr.S.Karthikeyan in Crl.R.C.No.505/13 for M/s.Norton & Grant For Respondents : Mr.B.Gnanasekar in Crl.R.C.No.505/13 for R.1 Mr.V.Arul Government Advocate for R.2 COMMON ORDER
These Criminal Revision Cases arise out of the same facts viz., transportation of cattle in connection with the cases registered in Cr.No.555 of 2013 in case of Crl.R.C.Nos.505/2013, 1274 to 1276/2013; Cr.No.29 of 2013 in case of Crl.R.C.Nos. 766 to 769 of 2013; Cr.No. 336 of 2013 in case of Crl.R.C.Nos.1150 and 1154 of 2013; Cr.No. 299 of 2013 in case of Crl.R.C.No.1492 of 2013; and Cr.No. 322 of 2013 in case of Crl.R.C.No.294 of 2014 and hence, all these revision cases are taken up together for common disposal and disposed of by this common order.
2. Crl.R.C.No. 505/2013 and Crl.R.C.Nos.1274 to 1276 of 2013 have been filed by the defacto complainant/Member, People for Cattle in India, against the allowing of the petitions in Crl.M.P.Nos.4384, 4385, 4386, 4387 of 2013, by common order dated 06.04.2013, seeking for return of cattle viz., 103 cows. Crl.R.C.Nos. 766 to 769 of 2013 have been filed by the defacto complainant/Member, Society for Prevention of Cruelty to Animals, against the allowing of the petitions in Crl.M.P.Nos.778, 779, 781 and 780 of 2013, by common order dated 02.03.2013, seeking for return of cattle viz., 124 buffaloes. Crl.R.C.Nos. 1150 and 1154 of 2013 have been filed by the defacto complainant/President, People for Cattle in India, against the allowing of the petitions in Crl.M.P.Nos.1942 and 1947 of 2013, by common order dated 03.09.2013, seeking for return of cattle viz., 230 buffaloes. Crl.R.C.No. 1492 of 2013 has been filed by the defacto complainant/Blue Cross of India against the allowing of the petition in Crl.M.P.No.1972 of 2013, by order dated 03.09.2013, seeking for return of cattle viz., 29 buffaloes. Crl.R.C.No. 294 of 2014 has been filed by the defacto complainant/President, People for Cattle in India, against the allowing of the petition in Crl.M.P.No.421 of 2014, by order dated 07.02.2014, seeking for return of cattle viz., 26 (25 bulls & 1 male bull calf).
3. The case of the petitioners/defacto complainants is that the petitioners' organisation are interested in the safety of the animals in question. The defacto complainants are alleged to have intercepted the vehicles and enquired the drivers and owners of cattle and they came to know that the accused were transporting the cattle to other Districts. In these cases, huge numbers of cattle were involved and they were kept jam packed and therefore, they sustained grievous injuries. They were not provided with fodder or water. The respective defacto complainants lodged complaints before the second respondents, based on which, cases were registered against the first respondents under Sections 41 and 102 Cr.P.C., then altered to Section 11(a) of Prevention of Cruelty of Animals Act. After registration of the cases, the owners of cattle preferred petitions before the concerned Magistrates seeking for return of cattle belonging to them. The concerned Magistrates allowed the petitions. Aggrieved against the same, these Criminal Revision Cases are filed by the defacto complainants.
4. Learned counsel appearing for the petitioners/defacto complainants would bring to the notice of this Court that an illegal act of taking large number of animals i.e., 24 to 25 in each lorry from one District to other District was intercepted at the instance of defacto complainants, who are the organisation interested in the safety of the animals. He would further contend that to the alleged owners of cattle, the Lower Court ought not to have granted the custody of animals, because, as per the Prevention of Cruelty to Animals Act 1960, the cattle should be taken care of and maintained even during the course of trial in a proper way. He would further submit that by transporting in the lorries more than the prescribed number of animals, the owners of cattle have violated the provisions of Prevention of Cruelty to Animals Act, 1960. To substantiate his contention, learned counsel would rely on a judgment of this Court reported in CDJ 2013 MHC 1960, Naseerulah vs. State by Sub-Inspector of Police, Coonoor & another, wherein, this Court has elaborately discussed about the various provisions of the Prevention of Cruelty to Animals Act 1960, Transportation of Animal Rules 1978, Motor Vehicles Act and Tamilnadu Animal Preservation Act 1958 and this Court has extracted the various violations and has ultimately held that the animals shall not be returned back to the accused, who caused injuries and death to the animals. Further, this Court has clearly held in the judgment how the Lower Court has to take into consideration in such matters relating to return of cattle. But, the Lower Court, without following the said judgment has straightaway ordered for return of cattle. He would further add that now the cattle in respect of the case in Cr.No.555 of 2013 were maintained by a Goshala, by name, Venkateswara Trust, Somangalam Village, Tambaram Taluk; the cattle in respect of the case in Cr.No.29 of 2013 were maintained by a Goshala, by name, Sambavnath Goshala, Mambakkam, Indian Institute of Animal Welfare; the cattle in respect of the case in Cr.No.336 of 2013 were maintained by the Goshala, by name, S.L.V.Goshala Trust & Research Center, Thiruvellore District; the cattle in respect of the case in Cr.No.299 of 2013 were maintained by the Blue Cross of India; and cattle in respect of the case in Cr.No.322 of 2013 were maintained by a Indian Institute of Animal Welfare, Venkatapuram, Chennai. During the course of trial also the upkeep of animal is necessary, but, violating the same, the Lower Court has straightaway passed the order directing the return of cattle. He would further submit that the petitioners, who are the defacto complainants, have got every right to safeguard the interest and welfare of the cattle.
5. Mr.V.Arul, learned Government Advocate (Criminal Side) appearing for the second respondent would submit that only an interim custody of cattle was given to the first respondents.
6. Learned counsel appearing for the first respondents/owners of the cattle would mainly contend that as owners of the cattle, they are automatically entitled to get to the custody of the cattle and during the course of trial, it is the responsibility of the owner to maintain the cattle. Since, the owners of the cattle were ready and willing to abide by any conditions, the Lower Court has rightly ordered for return of animals.
7. Heard both sides and I have carefully perused the entire materials available on record.
8. At the outset, I have to state that here is a case, where huge numbers of cattle were transported without any facility in vehicles in an inhumane manner and thus, there is a clear violation of Prevention of Cruelty to Animal Act 1960. It is brought to the notice of this Court that during the transportation of animals, the animals were stuffed with chilly in their eyes, in order to prevent them from sleeping during the course of transit and also to prevent them from moving from their places in the vehicle. Through their nose, a rope is fastened. They were all suffocated and some of them die in the course of transport. The accused are butchers by profession and they have transported the same to other Districts for butchering. The pregnant animals were taken, which is against the Prevention of Cruelty to Animals Act, 1960. Further, it violates Transport of Animals Rules, 1978. As per Rules 47 to 56 of the Transport of Animal Rules, 1978, no goods vehicle should carry more than six cattle and there should be a valid certificate by a qualified Veterinary Surgeon that the animals are fit to travel and each consignment should bear a label showing the name and address of the consignor and the consignee. Admittedly, in this case, more than 24 to 25 numbers of cattle were taken in a lorry and they were kept jam-packed with a rope fastened through their nose, that too, without any certificate in violation of the rules. That by itself is a cruelty to animals. Several cattle sustained bleeding injury and suffered suffocation because of the inhumane transportation. With all these things can we able to safely conclude that the owners of the cattle are the proper person to take custody of the cattle. Definitely not. The owners of the cattle cannot be the persons, to whom, the custody of cattle can be entrusted. Basic courteousy requires. The cattle subjected to inhumane practice, that too, without giving any protection and therefore, the cattle should not be entrusted to the persons concerned. The cattle should be given proper basic maintenance. In my considered opinion, during the course of trial, the cattle should not be entrusted to the custody of the persons who are accused of the offence of committing cruelty to animals and therefore, the Lower Court ought not to have granted return of cattle to owners of cattle.
9. I had an occasion to deal with a similar case, which is reported in CDJ 2013 MHC 1960, Naseerulah vs. State by Sub-Inspector of Police, Coonoor & another (cited supra), wherein, I have elaborately discussed about the various provisions of the Prevention of Cruelty to Animals Act 1960, Transportation of Animal Rules 1978, Motor Vehicles Act and Tamilnadu Animal Preservation Act 1958 and I have extracted the various violations and has ultimately held as under:-
7. At the outset, when we see the case, the petitioner had carried 24 cows in one vehicle. The photographs which has been produced at the time of hearing the revision, show that the injuries caused to the animals because of the cramp nature as they were all kept in one lorry. Before dealing with this subject, first of all, we can deal with various enactments, rules and regulations which are already provided insofar as to the transportation of the cattle and safeguard of the cattle. Section 11 of the Prevention of Cruelty to Animals Act, 1960, elaborately deals with various cruelty meted out to animals and Section 11(1)(d) specifically deals with the injuries caused during transportation of animals. Chapter III, Section 11 deals with cruelty to animals generally which reads as follows:
"11. Treating animals cruelly.-(1) If any person-
(a) beats, kicks, overrides, overdrives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated; or
(b) [employs in any work or labour or for any purpose any animal which, by reason of its age or any disease], infirmity, wound, sore or other cause, is unfit to be so employed, or being the owner, permits any such unfit animal to be so employed; or
(c) wilfully and unreasonably administers any injurious drug or injurious substance to [any animal] or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by [any animal]; or
(d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or (emphasis supplied)
(e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or
(f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or
(g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or
(h) being the owner of [any animal], fails to provide such animal with sufficient food, drink or shelter; or "
8. Further, we have got the Transport of Animals rules, 1978 enacted in exercise of powers conferred under Section 38 (2)(h) of the Prevention of Cruelty to Animals Act, 1960. In the rules, Rule 56 stipulates the conditions as to how the cattle should be transported in such a manner without causing any injury or discomfort to the animals. Rule 56(c) specifically stipulates that no goods vehicle shall carry more than six cattle. In fact, Rule 56 also empowers that the cattle should be transported with all precautions viz.,
(a) specially fitted goods vehicles with a special type of tail board on padding around the sides should be used;
(b) ordinary goods vehicles shall be provided with anti-slipping material, such as coir matting or wooden board on the floor and the superstructure, if low, should be raised;
(c) no goods vehicle shall carry more than six cattle;
(d) each goods vehicle shall be provided with one attendant;
(e) while transporting the cattle, the goods vehicle shall not be loaded with any other merchandise; and
(f) to prevent cattle being frightened or injured, they should preferably face the engine.
...
12. The facts in that case squarely applies to the fact of the present case. Therefore, also the lower Court was correct in dismissing the application. In fact, the power of Court to deprive person convicted of ownership of animal under Section 29 of the Act was also dealt with by the Supreme Court in a judgment reported in (2007) 15 SCC 588, State of M.P. Vs. Islam, wherein, the Supreme Court has categorically held that as per Section 29(1) of the Act, undoubtedly, confers jurisdiction on the Court, in the event the offender stands convicted, to pass an order of forfeiture of the animals in favour of the Government. But, a close scrutiny of language used therein, Section 29(1) stands appears to be restricted and subject to the provisions contained in sub-section (2) of Section 29 specifically lays down three specific conditions. The three specific conditions are as follows:-
a) It is shown by evidence as to a previous conviction under this Act.
b) as to the character of the owner or otherwise, as to the treatment of the animal.
c) that the animal, if left with the owner, is likely to be exposed to further cruelty.
In this case, the Court should be guided by this principle that there should be an evidence that when the owner is already convicted of a previous offence of same nature or when there is an evidence that the character of the owner is as to which he treats the animal in a bad manner or animal is left with the owner is exposed to further cruelty. In this case, admittedly, there is an evidence that the cattle have been taken to Kerala for butchering purposes. When there is a specific ban in regard to slaughtering of cow and further more, there were lot of injuries caused and the post-mortem certificate issued by the doctor clearly indicates that there are injuries and the veterinary doctor has also been examined at the time of the seizure also and that when clear cut evidence is available, naturally, the custody cannot be given. Apart from this, as rightly pointed out by the learned Counsel for the respondent that there could be some guidelines issued to the lower Courts as well as the authorities concerned in respect of the transport of such animals. In this case, we are also governed by Section 32 of the Prevention of Cruelty to Animals Act, 1960 which confers the power of search and seizure for the the police officers in contravention of the provisions of the Act. An argument was made that the offence under Section 11(1)(d) is a non-cognizable offence within the meaning of Code of Criminal Procedure. But Section 102 of Cr.P.C. which is extracted below clearly empowers the police officer to seize any material with regard to any offence which include the offence under Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960. In this connection, a ruling of the Gujarat High Court reported in 1998 Crl.J. 1337 (Panjrapole, Deodar and etc., v. Chakaram Moraj Nat, Maldhari and another) wherein it is clearly stated that under Section 102 of Cr.P.C. the police has power to seize animals also. The following may be usefully extracted:
"18. Though at the first instance, the contention raised by Mr.Tirmizi appears to be attractive, in my view, it has no substance. Section 102 of the Cr.P.C. empowers the Police Officer to seize any property which may be alleged or suspected to have been stolen or which may be found under the circumstances which create suspicion of the commission of an offence. Section 102 reads as follows: Section 102: Power of police officer to seize certain property.
(1) Any police officer may seize any property which may be alleged or circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station shall forthwith report the seizure to that officer.
(3) Every police officer action under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
The words 'any offence' employed u/S.102 shows unmistakably that even though there may be commission of non-cognizable offence, the police may seize any property found under the suspicious circumstances. Sub-section (2) of Section 102 provides that, such officer, subordinate to the officer in charge of the police station, shall forthwith report the seizure to that officer. Sub-clause (3) provides that, every police officer acting under sub-clause (1) shall forthwith report the seizure to the Magistrate having the jurisdiction. Thus, the police officer has a power to seize animal on suspicion of commission of an offence committed under the Act of 1960 or under the other ancillary provisions, irrespective of the fact that they are non-cognizable offences. On such seizure, the police officer is required to forthwith report to the Magistrate having the jurisdiction. The Court is required to pass an appropriate order with respect to the custody of the animal under the provisions of Section 451 of the Cr.P.C. Thus, in my view, irrespective of the fact that, except offences under clause (i), (n) or (o) of Sub-section (1) of Section (11) or 12 of the Act of 1960, rest of the offences are non-cognizable, the police has a power to seize the animal under Section 102 of the Cr.P.C. and the Magistrate will be competent to pass an order u/s.451 of the Cr.P.C."
...
12. In this connection, Section 429 of I.P.C. also can be taken note of. In this case, Section 429 of I.P.C. provides punishment for mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees with imprisonment for a term which may extend to two years, or with fine, or with both. The said section is a cognizable one. If we read Section 429 of I.P.C., the word used in the Section is even maiming the cattle and it is also included Cow or Ox. Here we come across in one vehicle more than 20 cows or buffaloes were transported and in that process, namely the people who has taken it in the vehicle or during the transport, one animal is being attacked by another which shows only the inhumane attitude and inducement of the said person transporting the animals. Therefore, even the maiming or injury caused because of the illegal transportation therefore, the owner can be hauled up. Unfortunately, when all these provisions are there, we find that these people transported these animals to butchery without following the rules and regulations. Taking into consideration that the prices are different from State to State. In fact, most of the cases, cattle are being transported continuously for a period of 48 hours crossing inter-State border without even providing fodder or water. They are mostly taken only for slaughtering house in Kerala. They are transported in complete violation of the legal provisions, that too, right under the nose of the authority who is duty bound to implement such laws. The object of the Prevention of Cruelty to Animals Act, 1960, is only to prevent animals from being put to cruelty and that it is imperative to implement both these Acts by the authorities concerned. I only fervently hope that hereafter these laws which are provided for preventing cruelty to animals will be implemented in the strict sense. The lower Courts in Tamil Nadu shall take note of these provisions and also see that as to how the offenders should be punished properly. Therefore, the finding of the lower Court that the petitioner is not entitled for return of the cattle is well founded and correct. At the same time, another painful thing has happened in this case and that has also to be taken note of. Subsequent to the cattle being handed over to the second respondent, they have maintained it for six months and during that period 21 cattle also died. The post mortem certificate have been produced. In all the cases, they have sustained injuries during illegal transportation. In fact, in one case, gangrene has set in and it has been operated from spreading further and the injuries of the nature sustained only during illegal transportation was the cause of the death. Here is the fittest case where Court has to come to the rescue of the animals and prevent cruelty meted out to the poor animals and the watchful thing of society which are taking care of the animals should be encouraged to stop this offence. Stringent action should be taken as against those who violates the laws in future. Even the vehicles which are used should be dealt with under the Motor Vehicles Act concerned and punishment has to be imposed.
10. In the decision cited supra, I have clearly indicated the mode to be done. The facts in that case squarely applies to the facts of the present case. Here in this case, if the cattle, if again left with the owners, is likely to be exposed to further cruelty. We find that the accused transported the cattle to burchery without following the rules and regulations. The cattle were being transported continuously from District to District without even providing fodder or water. The transportation is done in total violation of the legal provisions. The object of the Prevention of Cruelty to Animals Act 1960, is only to prevent animals from being put to cruelty. Further, stringent action should be taken as against those who violates the laws in future. The vehicles which are used for the commisison of this kind of offence should be dealt with under the Motor Vehicles Act. The Lower Court has not considered the decision cited supra and has ultimately granted the custody of cattle to the owners of cattle.
11. But, right now luckily, the cattle are maintained in Goshalas. In respect of the case in Cr.No. 555 of 2013, it is represented that immediately after the order of the Lower Court, out of the 103 cattle, 60 cattle were already taken away by the alleged owners and hence, the first respondents connected with the case in Cr.No.555 of 2013 are forthwith directed to return the cattle taken away by them viz., 60 cattle to the Goshala, by name, Venkateshwara Trust, Somangalam Village, Tambaram Taluk, within a period of 15 days from the date of receipt of a copy of this order. The cattle in respect of the case in Cr.No.29 of 2013 were maintained by a Goshala, by name, Sambavnath Goshala, Mambakkam, Indian Institute of Animal Welfare; the cattle in respect of the case in Cr.No.336 of 2013 were maintained by the Goshala, by name, S.L.V.Goshala Trust & Research Center, Thiruvellore District; the cattle in respect of the case in Cr.No.299 of 2013 were maintained by the Blue Cross of India; and cattle in respect of the case in Cr.No.322 of 2013 were maintained by a Indian Institute of Animal Welfare, Venkatapuram, Chennai. Infact, learned counsel appearing for the petitioners/defacto complainants has voluntarily stated before this Court that the respective defacto complainants are prepared to maintain the cattle in the respective Goshalas and they are also prepared to incur all the charges required for the maintenance of cattle in the respective Goshalas now. The organisation taking care of the animals should be encouraged to stop this offence. When voluntary organisations come forward to save the life of cattle, can we accept the contention of owners of cattle that they are entitled for the custody of cattle as owners of cattle, who have not even had the basic courteousy to provide the basic amenities of providing fodder and water to the cattle while transporting the cattle in vehicles and who have inserted the chilly in the eyes of cattle and ultimately, due to the inhumane treatment meted out to the cattle, some cattle died due to suffocation and bleeding injuries.
12. For the foregoing discussions held and also in the light of the decision cited supra, the impugned orders of the Lower Court are liable to be set aside and accordingly, they are set aside. These Criminal Revision Cases are allowed. Consequently, connected Miscellaneous Petitions are closed. It is hereby made clear that the cattle shall be maintained in the Goshalas, in which they were already kept and maintained, till the disposal of the cases. The undertaking given by the respective defacto complainants that they are prepared to incur all the charges required now for the maintenance of cattle in the respective Goshalas, is recorded with appreciation. The first respondents connected with the case in Cr.No.555 of 2013 are forthwith directed to return the cattle taken away by them viz., 60 cattle to the Goshala, by name, Venkateshwara Trust, Somangalam Village, Tambaram Taluk, within a period of 15 days from the date of receipt of a copy of this order. The Lower Court shall decide at the time of disposal of the main cases regarding the maintenance to be provided by the alleged owners.
27.07.2015 Index : Yes Internet : Yes paa To
1.The Inspector of Police Peerkankaranai Police Station.
2.The Judicial Magistrate, Tambaram.
B.RAJENDRAN, J.
paa CRL.R.C.Nos.505, 1274, 1275 and 1276 of 2013 and M.P.Nos.1 to 1 of 2013 and CRL.R.C.Nos. 766, 767, 768, 769 of 2013 and M.P.Nos. 1 to 1 of 2013 and CRL.R.C.Nos. 1150, 1154 and 1492 of 2013 and M.P.Nos.1 to 1 of 2013 and CRL.R.C.No. 294 of 2014 and M.P.No. 1 of 2014 27.07.2015