Gujarat High Court
Rajkot Mahajan Panjrapol Thro ... vs State Of Gujarat on 12 March, 2021
Equivalent citations: AIRONLINE 2021 GUJ 185
Author: S.H.Vora
Bench: S.H.Vora
R/CR.RA/584/2020 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 584 of 2020
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RAJKOT MAHAJAN PANJRAPOL THRO BHAVESHBHAI NARANBHAI JALLU Versus STATE OF GUJARAT ========================================================== Appearance:
MS VASVI N KAPADIA(6079) for the Applicant(s) No. 1 NISARG S SHAH(8886) for the Applicant(s) No. 1 MR HEMANT MAKWANA(3622) for the Respondent(s) No. 2 MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE S.H.VORA Date : 12/03/2021 CAV ORDER
1. By way of present Revision Application under section 397 read with section 401 of the Code of Criminal Procedure, the applicant has made following prayers in terms of para - 8(A) to 8(C) :-
"8(A) Your Lordship be pleased to quash and set aside the order dated 25.09.2020 passed by the learned 6th Additional District and Sessions Judge, Gondal in Criminal Revision Application No.32 of 2020;
8(B) That pending the hearing and final disposal of the present petition, Your Lordship be pleased to stay the implementation and execution of order dated 25.09.2020 passed by the learned 6th Additional District and Sessions Judge, Gondal in Criminal Revision Application No.32 of 2020;
8(C) Your Lordships be pleased to quash and set aside Page 1 of 6 Downloaded on : Sat Mar 13 01:16:00 IST 2021 R/CR.RA/584/2020 CAV ORDER the order dated 15.10.2020 passed by the Additional District and Sessions Judge, Gondal in Criminal Revision Application No.32 of 2020 and be further pleased to direct the restoration of the custody of the animals to the Panjarapole and be further pleased to direct the refund of the amount of Rs.5,000/- and be further pleased to direct the private respondent to pay the cost of the present proceedings to the petitioner."
2. Brief facts leading to filing of present Revision Application can be stated thus :-
2.1 The applicant is registered Panjrapole and is working for the well being of the speechless animals. The applicant Trust is recognized as infirmary by the State of Gujarat through Goseva Ayog, Gandhinagar as per order dated 13.08.2012. The applicant came to know on 28.09.2020, about the impugned order passed on 25.09.2020, when respondent no.2 went to the applicant for taking back possession of 9 buffaloes. The applicant immediately approached the concerned Court and obtained certified copy and preferred present Revision Application inter-alia challenging the order of learned Trial Court passed in exercise of powers under section 451 of the Code of Criminal Procedure.
2.2. On 08.09.2020 one Truck bearing registration No.GJ-1-BY-
6188 was intercepted and on inspecting the same, 9 buffaloes were found. They were tightly tied and kept in cruel manner, with no space to move around. On demand, accused was unable to produce pass and permit and thus, failed to produce requisite documents and therefore, the animals were removed Page 2 of 6 Downloaded on : Sat Mar 13 01:16:00 IST 2021 R/CR.RA/584/2020 CAV ORDER from the truck and sent to the applicant trust. Thus, FIR being C.R.No.1121-3015-201-323/2020 came to be lodged with Gondal Police Station.
3. Learned advocate for the applicant would submit that the impugned order passed by the learned Sessions Judge is not only erroneous and arbitrary but same is passed without giving any fair opportunity of hearing to the applicant trust, though the applicant had custody of the animals. Learned advocate for the applicant also challenges impugned order in touchstone on various provisions of Prevention of Cruelty to Animals Act and Rules framed thereunder and also under the provisions of Motor Vehicles Act.
4. Learned advocate for respondent no.2 while supporting the impugned order would submit that as present applicant was not party before the learned JMFC or learned Sessions Judge, present Revision Application is not maintainable as same being second Revision against the order passed by the learned Sessions Judge. Learned advocate for respondent no.2 would submit that the applicant Panjrapole has no preferential right at the time of deciding the interim custody of animals to whom the same should be given and therefore, respondent no.2 being original owner will have better claim for custody of animals during pendency of the prosecution. Thus, on various pronouncements, the applicant has no right to claim custody of animals, even if the applicant is not given opportunity of hearing by the learned Revisional Court. Learned advocate for respondent no.2 in support of his submission placed reliance on various pronouncement cited in his affidavit in reply.
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5. Before issue as to locus standi to maintain present Revision Application with regard to interim custody of animals is considered, it is necessary to reproduce observations made by the Co-ordinate Bench in the case of Manager, Panjrapole, Deodar v/s. Chakaram Moraji Nat and Ors. reported in 1997 (2) GLR 1321, more particularly, para 7, which reads as under :-
"7. Thus, from the scheme of the Act, it appears that the panjarapole is an important institution to achieve the object of the Act i.e. to prevent infliction, unnecessary pain or sufferings on animals and further to prevent the cruelty to animals. Panjarapole is a charitable institution and it functions for the noble purpose and do their best for preserving the cattle in the State. In view of this, it cannot be said that panjarapole has no interest in the case pertaining to cruelty to animals. Thus, keeping in view the scheme of the Act and the fact that it is not only recognized by the State, but it is vested with statutory obligation, in my view, the pinjarapole has locus to maintain a petition with respect to the interim custody of the animal seized for the offence under the Act of 1960 or the ancillary Acts."
6. It is a matter of fact that upon registration of FIR custody of animals were handed over to the applicant trust. While considering the application preferred by respondent no.2 under section 451 of Code of Criminal Procedure for getting custody of Muddamal, the applicant trust was not heard or not made party in the proceedings before the Subordinate Courts. So it becomes clear that while passing impugned order, the applicant trust was not heard. The controversy in question is squarely covered by the decision of this Court reported in Manager, Panjrapole, Deodar (supra). The impugned order is passed without giving opportunity of being heard to the applicant and only on that ground, impugned order dated Page 4 of 6 Downloaded on : Sat Mar 13 01:16:00 IST 2021 R/CR.RA/584/2020 CAV ORDER 25.09.2020 and 15.10.2020 passed by the learned Additional District and Sessions Judge, Gondal in Criminal Revision Application no.32 of 2020 requires to be interfered with at the hands of this Court.
7. At this stage, it is also important to note that learned advocate for respondent no.2 raised a contention that present Revision Application being second Revision, it is barred by sub- section (3) of Section 397 of Code of Criminal Procedure. The said contention is devoid of merits because present applicant has not preferred Revision either before this Court or before learned Sessions Judge; further application by the same party is barred. It is a matter of fact that present applicant has not preferred any application before the learned Sessions Judge, but presented present Revision Application before High Court challenging the order dated 25.09.2020 and 15.10.2020 passed by the learned Additional District and Sessions Judge, Gondal in Criminal Revision Application no.32 of 2020 in exercise of its jurisdiction under the provisions of section 397 of Code of Criminal Procedure, so the contention as raised is meritless.
8. So far as second contention by learned advocate for respondent no.2, whether the applicant has preferential right or not is a matter to be dealt with by the learned Revisional Court because this Court has not entered into merits of the impugned order at this stage and the Court is inclined to exercise its power only on the premise that impugned order passed by the learned Revisional Court is without hearing the applicant Panjrapole. Therefore, without expressing any opinion on merits of the case, and also on the contention so Page 5 of 6 Downloaded on : Sat Mar 13 01:16:00 IST 2021 R/CR.RA/584/2020 CAV ORDER raised by learned advocate for respondent no.2 as to nature of right, the matter requires to be remanded to the concerned learned Sessions Judge for deciding the aforesaid Revision Application on its merits after giving opportunity of being heard to the applicant and also respondents herein.
9. In view of above, present Revision Application is allowed. The impugned orders are hereby quashed and set aside. In view of nature of controversy involved in the present proceedings, the matter is remanded to the concerned learned Sessions Judge, who shall decide the Revision Application afresh within four weeks from the date of return of Muddamal viz. 9 buffaloes to the applicant - Panjrapole. Learned Sessions Judge shall also ensure that Muddamal are returned to the applicant Panjrapole so as to restore position as prevailing on the date of presentation of Revision Application before the Sessions Court. Learned Sessions Judge shall also refund the amount of Rs.5000/- recovered from the applicant - Panjrapole within two weeks from today.
(S.H.VORA, J) SATISH Page 6 of 6 Downloaded on : Sat Mar 13 01:16:00 IST 2021