Gujarat High Court
Shyam Bhikhabhai And Anr. vs The State Of Gujarat And Ors. on 23 January, 1995
Equivalent citations: 1996CRILJ136, (1996)1GLR19
JUDGMENT J.N. Bhatt, J.
1. As the common questions arise between common parties and out of common judgment and order, all these three matters are being disposed of by this common judgment.
2. In order to avoid repetition of facts, it will be sufficient to refer the facts which are identical and common in nature in all the three matters, like that in Criminal Revision Application No. 318 of 1989.
3. The petitioners in this revision are the original accused persons. Respondent No. 2 is the Managing Trustee of Broach Panjarapole Sarvajanik Trust and respondent No. 3 is the original complainant. They are hereinafter referred to as the complainant, Panjarapol Trust and accused person for the sake of convenience and brevity.
4. The original complainant-respondent No. 3 is the General Secretary of All India Krishi Go Seva Sangh. He is also the Convenor of Animal Welfare Board of India and also the President of Shri Gau Shala Panjarapole Sanstha, Malegaon, Dist. Nasik. He was also the President of Jain Oshwal Samaj, Malegaon as well as President of Rajasthani Swetamber Murtipujak Sangh, Malegaon as well as Trustee of Shri Neminath Jain Brahmchari Ashram, Chandwad. He was working as Treasurer of Malegaon Education Society at the relevant time. The complainant filed a complaint to Broach Police on 10-1-1989 against the accused persons which came to be registered as CR. No. 10/89. The complainant alleged in the complaint that the accused persons were taking 200 cows to sell illegally to a Slaughter House from Rajasthan to Bombay. The accused persons were allegedly shifting or removing those 200 cows from Rajasthan to Bombay illegally for getting them slaughtered. Upon this apprehension, the complainant filed the complaint and on this basis the accused, whilst were passing through along with the cows near National Highway No. 8 on the outskirt of Bharuch City, came to be arrested.
5. The complaint was investigated into and having prima facie case against the accused persons, the charge-sheet was filed in the Court of learned Chief Judicial Magistrate, Bharuch, against the accused persons. The accused persons were charged in Criminal Case No. 2549 of 1989 for having committed the offences punishable under Sections 5, 8 and 10 of Bombay Animal Preservation Act, 1954 ('Act' for short). Thus, it was alleged that the accused persons were taking about 200 cows for slaughtering purpose from Rajasthan to Bombay without any licence or permit from the concerned District Magistrate, on 10th January, 1989. The accused pleaded not guilty and claimed to be tried.
6. After examining facts and circumstances and evidence on record, the learned Chief Judicial Magistrate, at Bharuch, found accused persons not guilty and therefore, acquitted them from the charges against them on 8th March, 1989. The trial Court also directed that the muddamal cows given to Panjarapole Trust during pendency or trial, should be handed over to the accused persons after a period of appeal and expenses for maintenance of the cows during that period should be borne by Panjarapole Trust.
7. Feeling aggrieved by the judgment and order of the trial Court, Panjarapole Trust filed Criminal Appeal No. 13 of 1989 in the Sessions Court at Bharuch challenging the direction regarding costs of maintenance of muddamal 200 cows. After hearing parties and considering the facts and circumstances of the case, the appellate Court modified the order of the trial Court and divided costs of maintenance of 200 cows pending trial between four parties. The appellate Court had fixed Rs. 4/- per day per cow as maintenance costs and further directed that 50% of total costs should be borne by original complainant, 25% of the costs should be borne by the State of Gujarat and 12% of the total costs should be borne by each of the accused. Thus, the appellate Court modified the direction with regard to the charges for maintenance of cows and directed four parties to bear the expenses, instead of full costs by Panjarapole Public Trust.
8. Being aggrieved by the said order passed by the learned Additional Sessions Judge on 9-8-1989 in Criminal Appeal No. 13 of 1989, the aforesaid three matters came to be filed. Criminal Revision Application No. 318 of 1989 is filed by the accused persons for setting aside the impugned order directing them to bear expenses for maintenance to the extent of 12%; Special Criminal Application No. 293 of 1990 is filed by Panjarapole Public Trust for enhancement of maintenance amount fixed by the appellate Court, at Rs. 4/- per day per cow; and Special Criminal Application No. 44 of 1991 is filed by the original complainant against direction of the appellate Court to bear 50% of the costs towards maintenance of the cows during pendency of the trial.
9. Thus, it could very well be seen that the aforesaid criminal matters have arisen out of common order between common parties with common questions. Therefore upon joint request, they are being disposed of simultaneously by this common judgment.
10. It is not disputed that the accused persons are the owners of the cows which were being taken from Rajasthan towards Bharuch side at the relevant time. The complainant reported to Police at Bharuch on 10-1-1989 that the accused persons were taking cows illegally for the purpose of slaughtering them. Therefore, the police had registered the offence against the accused persons and investigation was conducted. The cows were also seized by police. During pendency of the trial, the cows were directed to be maintained and kept by Panjarapole Public Trust who is the petitioner in Special Criminal Application No. 293 of 1990. The cost of maintenance was borne by the Panjarapole Public Trust during pendency of the trial. While acquitting the accused persons from the offences punishable under Sections 5, 8 and 10 of the Act by the trial Court, the muddamal cows were ordered to be returned to the accused and also directed that the costs of maintenance during the trial should be exclusively borne by the Panjarapole Public Trust in whose custody the cows were kept by virtue of interim order of the Court during the trial. The accused persons were charged for the offences punishable under Sections 5, 8 and 10 of the Act.
11. The complainant has alleged that, the accused persons were taking about 200 cows for the purpose of slaughtering them illegally without requisite licence or permission from the competent authority and were guilty of the offence punishable under Sections 5, 8 and 10 of the Act. Section 5 of the Bombay Animal Preservation Act, 1954 prescribes prohibition against slaughter without certificate from competent authority. Section 5 reads as under :-
(1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter.
(1A) No certificate under sub-section (1) shall be granted in respect of-
(a) a cow;
(b) the calf or a cow, whether male or female and if male, whether castrated or not;
(c) a bull below the age of sixteen years;
(d) a bullock below the age of sixteen years;
(2) In respect of an animal to which sub-section (1 A) does not apply no certificate shall be granted under sub-section (1), if in the opinion of the Competent Authority -
(a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations;
(b) the animal, if male, is useful or likely to become useful for the purpose of breeding;
(c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing offspring.
(3) Nothing in this section shall apply to -
(a) the slaughter of any of the following animals for such bona fide religious purposes, as may be pre-scribed, namely -
(i) any animal above the age of fifteen years other than a cow, bull or bullock;
(ii) a bull above the age of fifteen years; (iii) a bullock above the age of fifteen years;
(b) the slaughter of any animal not being a cow or a calf of a cow, on such religious days as may be prescribed;
Provided that a certificate in writing for the slaughter referred to in Clause (a) or (b) has been obtained from the Competent Authority.
(4) The State Government, at any time for the purpose of satisfying itself as to the legality or propriety of any order passed by a Competent Authority granting or refusing to grant any certificate under this section, call for and examine the records of the case and may pass such order in reference there to as it thinks fit.
(5) A certificate under this section shall be granted in such form and on payment of such fee as may be prescribed.
(6) Subject to the provisions of sub-section (4) any order passed by the Competent Authority granting or refusing to grant a certificate, and any order passed by the State Government under sub-section (4) shall be final and shall not be called in question in any Court.
12. Section 6 makes prohibition of slaughter of animals in places not specified for the purpose. Section 7 of the Act provides the authority and power to the Competent Authority for inspection purpose. We are mainly concerned with the provision of Section 8 of the Act. Section 8 provides penalty for the offences punishable under this Act. As per provision of Section 8, any contravention of any of the provisions of the Act, the accused could be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. Section 9 provides all the offences under the Act shall be cognizable. Notwithstanding any thing contained in the Code of Criminal Procedure, 1898, Section 10 provides punishment for abetments and attempts. Whoever abets any offence punishable under this Act or attempts to commit any such offence shall be punishable with the punishment provided in this Act for such offence. Section 15 empowers State Government to make rules and accordingly the State Government has made the rules known as Bombay Animal Preservation Rules, 1967.
13. With a view to prevent the infliction of unnecessary pain or suffering on animals and for that purpose, the Parliament has enacted a legislation known as the Prevention of Cruelty to Animals Act, 1960 which came into force on 26th December, 1960 (Act 59 of 1960). It is very clear from the statement of Objects and Reasons of this Act that the Committee for the prevention of cruelty to animals appointed by the Government of India had pointed out deficiencies in the old Act of 1890 and pursuant to the suggestions made in the report of the Committee, the new Act is legislated. Thus, the Prevention of Cruelty to Animals Act, 1960 is enacted to prevent infliction of unnecessary pain or suffering on animals and for that purpose to amend and codify all laws relating to the Prevention of Cruelty to Animals. Keeping in view the experience gained in the working of the said Act for the last twenty years, it was considered necessary to amend the Act so as to better achieve the purpose thereof. Section 4 of the Act provides establishment of Animal Welfare Board. For the promotion of animal welfare generally and for the purpose of protecting animals from being subjected to unnecessary pain or suffering in particular, Central Government shall be obliged to establish the Animal Welfare Board. The complainant - Mr. Keshrichand S. Mehta is the Convenor of Animal Welfare Board of India under Section 4 of the Act.
13A. Upon the facts and circumstances and evidence on record, the trial Court found accused persons not guilty, and therefore had acquitted them from the charges against them. While acquitting accused persons, the trial Court directed that the muddamal cows should be returned to the accused and further directed that the Panjarapole Public Trust shall bear costs of maintenance of the cows during pendency of the trial. On appeal before the Sessions Court, the order of the trial Court with regard to the costs of maintenance came to be modified as aforesaid. The modified order of the Sessions Court with regard to costs of maintenance of muddamal cows during pendency of the trial is questioned in these three criminal matters which are being disposed of simultaneously. The original complainant - Shri K. S. Mehta, Secretary of All India Krishi Go Seva Sangh is directed to bear 50% of the total costs towards maintenance and State of Gujarat is directed to bear 25% of the costs and each of the accused persons is directed to bear 12 1/2% of the total costs. The Panjarapole Public Trust has also challenged the quantum of amount of cost of each cow per day fixed by the trial Court in Special Criminal Application No. 293 of 1990. The Panjarapole Public Trust, inter alia, contended that maintenance cost of each cow per day fixed at Rs. 4/- should be enhanced to Rs. 7/-. The accused persons have contended in Criminal Revision Application No. 318 of 1989 that they are not bound to bear the costs of maintenance as directed by the appellate Court and the original complainant had also similarly challenged the legality of the order of the appellate Court directing it to bear the cost of maintenance to the extent of 50%.
14. Before the contentions raised in this application are examined, it would be necessary to refer to provision of Section 35 of (The) Prevention of Cruelty to Animals Act, 1960. Section 35 makes a provision authorising the State Government and the Court for taking appropriate actions for preservation, treatment and care of the animals at different stages. Section 35 reads as under :-
Treatment and care of animals.- (1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate.
(2) The magistrate before whom a prosecution for an offence against this Act has been instituted may direct that the animal concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a Panjrapole, or, if the veterinary officer in charge of the area in which the animal is found or such other veterinary officer as may be authorised in this behalf by rules under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.
(3) An animal sent for care and treatment to an infirmary shall not, unless the Magistrate directs that it shall be sent to a Pinjrapole or that it shall be destroyed, be released from such place except upon a certificate of its fitness, for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act.
(4) the cost of transporting the animal to an infirmary or Pinjrapole, and of its maintenance and treatment in an infirmary, shall be payable by the owner of the animal in accordance with a scale of rates to be prescribed by the District Magistrate, or, in presidency-towns, by the Commissioner of Police.
Provided that when the Magistrate so orders on account of the poverty of the owner of the animal, no charge shall be payable for the treatment of the animal.
(5) Any amount payable by an owner of an animal under sub-section (4) may be recovered in the same manner as an arrear of land revenue.
(6) If the owner refuses or neglects to remove the animal within such time as a Magistrate may specify, the Magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost.
(7) The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale, be paid to him.
15. Having regard to the facts and circumstances emerging from the record of the present case and the relevant provisions of Section 35 of (The) Prevention of Cruelty to Animals Act, 1960 and the limited scope of revision under Sections 397 and 401 of the Code of Criminal Procedure, this Court is of the opinion that there is no justification for interference with the impugned order with regard to the apportionment of costs of maintenance of each cow for period of trial as ordered by the learned Additional Sessions Judge in the impugned judgement and order. The impugned order could not be said to be unreasonable, unjust or perverse. Accused persons have not been able to show that they are unable to bear the expenses as directed by the appellate Court. That part of the impugned order under Section 35(4) of the Prevention of Cruelty to Animals Act, 1960 could not be said to be illegal or unjust. Nothing has been pointed out that the Central Government has framed rules fixing cost of maintenance per animal per day. In absence of any statutory prescription of rate of maintenance per animal either by the Central Government or by the State Government during period of prosecution, the discretion exercised by the learned Appellate Judge could not be said to be tainted with infirmity. There is no dispute about the fact that the Central or State Government has not prescribed any amount for treatment or maintenance of any animal, the contention of the Panjrapole Public Trust raised in Special Criminal Application No. 293 of 1990 for enhancement of quantum of rate of maintenance cannot be upheld. Likewise, keeping in mind main object of the provisions of the Bombay Animal Preservation Act, 1954 and the benevolent purpose and the aim for protection from pain and suffering to animals championed by the complaint - All India Krishi Goseva Sangh which is also holding various officers and also the office in Board under the Act, the direction to the complainant to bear 50% of the cost in the impugned judgment cannot be said to be perverse, illegal or unjust.
16. Having regard to the facts and circumstances emerging from the record of the present case and after considering main principles and desideratum of important provisions made in the Bombay Animal Preservation Act, 1954 and (The) Preservation of Cruelty to Animals Act 1960 and also considering the fact that the jurisdictional sweep of this Court under the provisions of Sections 397 and 401 of the Criminal Procedure Code is very much circumscribed. This Court has no hesitation in finding that there is no justiafiable material warranting interference of this Court in these three matters against the impugned order passed by the learned Additional Sessions Judge. With the result, all these three matters are meritless and require to be rejected and accordingly they are rejected. Rule is discharged. Interim orders obviously, if any, shall automatically come to an end.