Bombay High Court
Shaikh Bilal Shaikh Ayyub vs The State Of Maharashtra And Others on 17 January, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1329 OF 2019
Shaikh Bilal Shaikh Ayyub,
Age 31 yrs., Occ. Business,
R/o Chambharwada, Savda,
Tq. Raver, Dist. Jalgaon.
... Petitioner.
... Versus ...
1 The State of Maharashtra
Through Police Inspector,
Nashirabad Police Station,
Tq. & Dist. Jalgaon.
2 Union of India
3 Shri. R.C. Bafna Go seva
Aanusandhan Kendra,
through its Manager,
Abhaychandrashekhar Pashupatinath Singh,
Age 48 yrs., Occ. Manager,
R/o C/o Shri. R.C. Bafna Go Seva
Anusandhan Kendra,
Gat No.205/3/2, Kusumba,
Ajintha Road, Jalgaon,
Tq. & Dist. Jalgaon.
... Respondents.
...
Mr. Naseem R. Shaikh, Advocate for petitioner
Mr. B.V. Virdhe, APP for respondent No.1
Mr. S.B. Deshpande, Advocate for respondent No.2
Mr. S.P. Joshi, Advocate h/f Mr. A.S. Bajaj, Advocate for respondent No.3
...
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2 Cri.WP_1329_2019
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 08th JANUARY, 2020
PRONOUNCED ON : 17th JANUARY, 2020
ORAL ORDER :
1 The petitioner has challenged the provision of Section 35(4) of Prevention of Cruelty to Animals Act, 1960 as ultra wires of the Constitution of India and alternatively prayed for issuance of writ of mandamus or any other appropriate writ for remanding the Criminal Miscellaneous Application No.318/2018 to learned Judicial Magistrate First Class, Jalgaon for considering the economic background of the petitioner, in view of the proviso to Section 35(4) of the Prevention of Cruelty to Animals Act and pass appropriate order.
2 Factual matrix leading to the present petition are, that the present petitioner is the original applicant, who had filed Criminal Miscellaneous Application No.318/2018 before Judicial Magistrate First Class, Jalgaon under Section 457 of the Code of Criminal Procedure, 1973 for custody of 30 bullocks. Said application came to be allowed on 05.05.2018. By that time those 30 bullocks were in the custody of the present respondent No.1. The respondent No.2 had challenged the said order passed by the learned Judicial Magistrate First Class, Jalgaon before the Sessions Judge, ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 3 Cri.WP_1329_2019 Jalgaon in Criminal Revision No.44/2018. The said revision was allowed on 31.07.2018 and thereby the order passed by the learned Judicial Magistrate First Class, Jalgaon was set aside. Thereafter, the present petitioner had preferred the Criminal Writ petition No.1183 of 2018 before this Court and it came to be allowed on 08.04.2019. The order passed by the learned Judicial Magistrate First Class, Jalgaon has been restored. When the petitioner went to Court of Judicial Magistrate First Class, Jalgaon with a prayer to release the animals, it has been refused without subjective satisfaction and impugned order has been passed. It was stated that when this Court had confirmed all the conditions imposed while passing the order in Criminal Miscellaneous Application No.318/2018, the petitioner will have to be complied with the same and then the bullocks would be released. It will not be out of place to mention here that in his application dated 07.06.2019 i.e. after the decision by this Court in earlier writ petition it was contended by the petitioner, that he had purchased those 30 bullocks on 14.04.2018 for a consideration of Rs.5,45,500/-. It is stated that the applicant is ready to pay maintenance changes in respect of bullocks from 14.04.2018 till 05.05.2018 amounted to Rs.30,000/-. The calculation of the amount from the date of seizure from 14.04.2018 is going more than Rs.6,00,000/-, which is more than the amount for which the bullocks were purchased. He is very poor person and already he had raised loan. He will not be able to deposit that amount and in view of ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 4 Cri.WP_1329_2019 the proviso to Section 35(4) of the Prevention of Cruelty to Animals Act, such amount can be waived, if the person is poor. He prayed that amount of Rs.30,000/- be accepted and the bulls be released.
3 The learned Magistrate had taken note of the earlier round of litigation and it was stated, that since the order passed in Criminal Miscellaneous Application No.318/2018 is confirmed and restored by this Court in writ petition with all the terms and conditions, that Court cannot go beyond its own order and as it may amount to reviewing his own order. Therefore, the application was rejected. Hence, present petition. 4 Heard learned Advocate Mr. N.R. Shaikh for petitioner, learned APP Mr. B.V. Virdhe for respondent No.1, learned Advocate Mr. S.B. Deshpande for respondent No.2 and learned Advocate Mr. S.P. Joshi holding for learned Advocate Mr. A.S. Bajaj for respondent No.3. 5 It has been vehemently submitted on behalf of the petitioner that the learned Judicial Magistrate First Class, Jalgaon had considered while dealing with the Criminal Misc. Application No.318/2018 under Section 457 of Cr.P.C. that the present petitioner is the owner of those bullocks, as he had produced the receipt for the purchase of those bullocks. While allowing the application the interim custody of 30 bullocks was granted on certain terms ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 5 Cri.WP_1329_2019 and conditions. One of the conditions was, that the owner of the cattle to pay Rs.50/- per day for each cattle to the objector i.e. present respondent No.2. If we calculate that amount since the date of the dispatch till today, the amount will go to around Rs.9,00,000/-, which is definitely more than the price for which those bulls were purchased. In fact, the respondent No.2 had no right to file revision, yet it had filed and then it was allowed. The petitioner had then approached this Court in Criminal Writ Petition No.1183 of 2018, which was allowed and the order passed by the learned Judicial Magistrate First Class, Jalgaon was restored. The applicant is a poor person and as per the provisions of Section 35(4) of the said Act, the amount can be waived, which is required to be imposed for the maintenance of the bullocks by the Goshala or Gorakshan Sanstha. The learned Trial Court has refused to exercise that discretion. He prayed for setting aside the said order and giving exemption from payment of depositing maintenance charges. 6 The petition has been objected by the respondent No.2 by filing affidavit in reply. It has been stated that the learned Additional Sessions Judge in her Judgment has stated that the applicant had produced affidavit of the concerned person, in which it was stated that the applicant is the owner of about 26 acres of land having sheds of cattle. There is 90 acres and 18 acres of agricultural land of the present petitioner and photographs were ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 6 Cri.WP_1329_2019 produced in respect of the cattle shed, which had arrangements to keep cattle. These observations and the evidence, that was before the learned Additional Sessions Judge would show, that the petitioner is not a poor person. In fact, the petitioner was transporting 30 bullocks in 2 trucks to Zahirabad in Telangana State, where M/s Frigerio Conserva Allana Private Limited comprising of slaughter house and meat processing industries, bone mill processing of animal horn, hoofs and other body parts is situated. Therefore, those cattle were seized. In fact, as per article 51-A (9) of the Constitution of India, it is the fundamental duty of every citizen to have compassion for living creature and protect wild life. The directive principles under Article 48 of the Constitution of India also makes it obligatory on the part of the State to take steps for preserving and improving the breeds and prohibiting the slaughter of the cows and calves and other milch and draught cattle. The bulls were found transporting in violation of the Transport of Cattle Rules framed for transporting cattle. There was no arrangement of air, food and water during transport of the cattle. The provisions of Section 35(4) of the Prevention of Cruelty to Animals Act is constitutional and therefore, the learned Magistrate had granted maintenance charges. In fact, only Rs.50/- per cattle was granted per day, however, respondent No.2 is spending more than that for maintaining those cattle. As per the rules, those have been framed by the Animal Welfare Board of India. The cost of ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 7 Cri.WP_1329_2019 maintenance is fixed @ Rs.200/- per day. The petitioner in the writ petition, which was filed by him on the earlier occasion, had not canvassed that the provision of Section 35(4) of the said Act is ultra wires. The learned Judicial Magistrate First Class, Jalgaon was justified in rejecting the application to grant any concession to the petitioner and was right in insisting for observation of the terms as the order passed by the learned Judicial Magistrate First Class, Jalgaon was restored. No interference is required in this case.
7 At the outset, it is to be noted that perusal of the Judgment of this Court in Criminal Writ Petition No.1184 of 2018 would show that the petitioner had never agitated that the provisions of Section 35(4) of the Prevention of Cruelty to Animals Act is ultra vires of the Constitution of India. He cannot agitate it now. He wants to get benefit of the said provisions, may be in the alternative and therefore, under such circumstance, he cannot say that the said provision is ultra vires.
8 Turning to the alternative prayer, that has been made as aforesaid, the present petitioner had filed application for getting an interim custody of all 30 cattle, by making that application under Section 457 of Cr.P.C.. Said Criminal Miscellaneous Application No.318/2018 was allowed and certain conditions were imposed. One of the conditions, that was ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 8 Cri.WP_1329_2019 imposed on the owner of the cattle i.e. to pay Rs.50/- per day for each cattle. 9 It appears that there is typographical mistake in the order passed by learned Judicial Magistrate First Class, Jalgaon on 05.05.2018 as word "to applicant" is used. In that case the applicant was himself the owner of the cattle and therefore, it could not have been that the applicant to pay the cost for himself. Perusal of the entire order would show that the application was objected by the present respondent No.2, to whom the 30 cattle were given in possession. Therefore, that order, to pay charges of maintenance was "to be given to respondent No.2". The said charge has been imposed, in view of the provision itself. Section 35(2) of the said Act gives discretion to the Magistrate to hand over the interim custody of the cattle to be treated and cared for in an infirmary or to Pinjarapole. But it is not compulsory to hand over the custody of the animal to Pinjarapole. Further this Court had considered the concerned provision as well as the decisions in Manager, Pinjrapole Deudar and another vs. Chakram Moraji Nat and others, AIR 1998 SC 2769 and Shaikh Zakir Shaikh Nasir vs. The State of Maharashtra, 2011 ALL M.R. (Cri.) 3694. The learned Additional Sessions Judge had allowed the revision and thereby had set aside the trial Court's order dated 05.05.2018. It was also directed that the interim custody of seized 30 bulls to remain with the applicant i.e. present respondent No.2 till the decision of ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 9 Cri.WP_1329_2019 the trial. This order was set aside by this Court in the said criminal writ petition and the order passed by the learned Judicial Magistrate First Class, Jalgaon was restored. Important point to be noted is, that the present petitioner had every right to challenge the said order passed by the learned Judicial Magistrate First Class, Jalgaon also, which was in respect of direction to him to pay maintenance charges @ Rs.50/- per cattle per day. However, he had not opted to challenge the said part of the order passed by the learned Judicial Magistrate First Class; rather he supported the order passed by the learned Magistrate. When the entire order of the learned Magistrate has been now restored, the petitioner cannot come with a case that a provision is ultra vires. He cannot also come with a tag that he would pay amount only for a certain period i.e. from 14.04.2018 to 05.05.2018 only. There is no substance in the submission on behalf of the petitioner that the present respondent had no right to challenge the order passed by the learned Judicial Magistrate First Class, Jalgaon and therefore, as the respondent No.2 had dragged the proceedings, the respondent No.2 is not entitled to get the charge for maintaining the cattle. This point was never raised before the learned Additional Sessions Judge nor before this Court in the earlier criminal writ petition. This Court while deciding the earlier writ petition has not made observation that the revision itself was not maintainable, on the point that the present respondent had no locus to file the said revision ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 10 Cri.WP_1329_2019 application. The learned Judicial Magistrate First Class, Jalgaon is justified in saying that he cannot modify the order or cancel it as it amounts to reviewing its own order, which is not permissible.
10 Now, when order has been confirmed and restored by the superior Court, it appears that prior to that one more application was filed by the present petitioner before the learned Magistrate for handing over the bulls to him and accordingly, that application was allowed on 29.04.2019. It is not made clear in the subsequent application, as to whether the custody of the bulls has been received by the petitioner or not. But when in the prayer clause the petitioner is not coming with the case that he has not received the custody of the cattle, it may be presumed that he has received the custody and now it is only the point as regards payment of maintenance charges. Definitely, the respondent No.2 is at liberty to recover the charges from the present petitioner, in view of the said order.
11 The petitioner is contending that since he is poor, he is unable to pay the amount, which is now running in more than the amount of the cattle, for which they were purchased. It is to be noted that no documentary evidence was produced by the petitioner before the Magistrate regarding his income. The learned Advocate for the respondent No.2 was justified in relying on para No.20 of the Judgment of the learned Additional Sessions ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 ::: 11 Cri.WP_1329_2019 Judge, wherein it had come on record that the present petitioner is the owner of huge land having cattle shed. Therefore, he cannot be said to be a poor person. Though the proviso to Section 35(4) of the Prevention of Cruelty to Animals Act gives discretion to the Court to exempt the person from payment of maintenance charges, if he is poor, yet the necessary evidence to support his alleged contention that he is poor, the petitioner has not produced any documentary evidence on record. Under these circumstances, no direction can be given, as prayed.
12 There is absolutely no m erit in the writ petition. Hence, it deserves to be dismissed. Accordingly, it is dismissed.
( Smt. Vibha Kankanwadi, J. ) agd ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:31:58 :::