Karnataka High Court
Bhagwan Mahaveer Gaushala vs State Of Karnataka on 3 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1334, 2019 (4) AKR 573
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY 2019
®
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.100900 OF 2019
BETWEEN
BHAGWAN MAHAVEER GAUSHALA
THROUGH ITS AUTHORIZED
REPRESENTATIVE, SHRI.NARAYAN,
S/O. RAMA KOLEKAR,
TRUST REG.NO.BK, IV-21(2003-04),
SURVEY NO.297/3,
KALIKOP GRAM,
P.B.ROAD, NH-4,
BELAGAVI, KARNATAKA. ...PETITIONER
(BY SRI. RAJU R.GUPTA & SRI.GOURISHANKAR H. MOT,
ADVOCATES)
AND
1. STATE OF KARNATAKA
THROUGH THE YAMAKANMARDI,
P.S.BELAGAVI,
REPRESENTED BY THROUGH THE
STATE PUBLIC PROSECUTOR,
DHARWAD.
2. GOUS KUTUBUDDIN BEPARI
AGE: 55 YEARS,
RESIDENT OF YAMAKANMARADI RC,
TQ: HUKKERI.
3. IRFAN ABDULRAHIM BEPARI
CRL.P. NO.100900 OF 2019
:2:
AGE: 45 YEARS,
RESIDENT OF YAMAKANMARADI RC,
TQ: HUKKERI.
4. MUSTAK DASTGEER BEPARI
AGE: 55 YEARS,
RESIDENT OF YAMAKANMARADI RC,
TQ: HUKKERI.
5. MISS.JOSHINE,
D/O GEORGE ANTHONY,
AGE: 30 YEARS, OCC: SERVICE,
R/O: 11/1A, 22/1BP,
KPJ NILAYAM, 3RD CROSS,
M.P.LAYOUT,
BOMMANAHALLI,
BENGALURU-560068. ...RESPONDENTS
(BY SMT. SEEMA SHIVA NAIK, HCGP FOR R1
SRI. VITTAL S.TELI, ADVOCATE FOR R2 TO R4)
(NOTICE TO R5 IS DISPENSED WITH)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER
DATED 06.05.2019 PASSED BY THE LD. VII ADDL.
DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT
CHIKODI AND TO QUASH THE IMPUGNED ORDER DATED
25.01.2019 PASSED IN C.C.No.1215/2018 BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, SANKESHWAR.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
CRL.P. NO.100900 OF 2019
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ORDER
This petition is filed by the petitioner - Bhagwan Mahaveer Gaushala being aggrieved by the order passed by the VII Additional District and Sessions Judge, Belagavi sitting at Chikodi passed in Crl.Rev. P. No.26 of 2019 dated 06.05.2019 whereby the petition filed by the petitioner came to be dismissed by confirming the order passed by the Additional Civil Judge & Judicial Magistrate First Class, Sankeshwar, in C.C.No.1215/2018 dated 25.01.2019.
2. I have heard learned counsel for the petitioner and learned counsel for the respondent.
3. The gist of the case of the prosecution is that the accused persons for making personal gain had stored bullocks, she-buffaloes and oxen and they were not provided with any food, water and other things and they were being treated with cruelty and were stored with an intention to be slaughtered. A complaint was CRL.P. NO.100900 OF 2019 :4: lodged on 18.11.2018 in this regard and a case was registered. During the course of investigation 49 bullocks were seized belonging to respondent Nos.2 to 4. Subsequently, respondent Nos.2 to 4 filed an application under Sections 451 and 457 of Cr.P.C. to release the cattle to their interim custody. The said application was seriously contested by the petitioner- organisation and contended that they are entitled for the interim custody of 49 bullocks and they are ready to keep them in custody. The Court below, after taking into consideration the application, allowed the application filed by respondent Nos.2 to 4 and the application filed by the petitioner-organisation came to be rejected. Being aggrieved by the same, the present petitioner filed criminal revision petition before the learned District Judge. The said petition was heard and decided on 06.05.2019 and by confirming the order of the Trial Court, the Revisional Court dismissed the revision petition. As such, the petitioner is before this Court.
CRL.P. NO.100900 OF 2019 :5:
4. It is the submission of the learned counsel for the petitioner that the learned Magistrate as well as the learned District Judge, without proper application of mind and law have passed the impugned order; they have not kept in view the provisions of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 (hereinafter referred to as 'the Rules', for short). As per Rule 3 sub-rule (b) of the Rules, the Magistrate is authorized to direct the animals to be housed at an infirmary, pinjrapole, SPCA, Animal Welfare Organization or Gaushala during the pendency of the litigation. But, without following the said procedure, both the Courts have passed an order for interim custody to the respondent Nos.2 to 4. It is his further submission that though the case has been registered against respondent Nos.2 to 4 for having violated the provisions of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 (hereinafter referred to as 'the Act, 1964', for short) and CRL.P. NO.100900 OF 2019 :6: also under the provisions of Prevention of Cruelty to Animals Act, 1960 (for short, 'the Act, 1960). It is his further submission that if the interim custody of the said 49 bullocks is ordered to be given to respondent Nos.2 to 4, again there will be cruelty to the said animals and there is every likelihood of they being used for the purpose of slaughter; the said apprehension cannot be overruled. He further submitted that the Courts below have not kept in view the decision of the Hon'ble Apex Court in the case of State of U.P. Vs. Mustakeen & Ors. rendered in Criminal Appeal Nos.283- 287/2012, wherein it has been observed that when the petitioners are vitally interested in preservation and custody of the animals, then under such circumstances, the Courts below ought to have passed an order to keep them in the custody of the petitioner and the said custody can be finalized only after the final adjudication of the case. He also relied upon the decision of other High Courts to substantiate the said facts. On these CRL.P. NO.100900 OF 2019 :7: grounds he prayed to allow the petition and to release the said oxen to their interim custody. It is his further submission that though the charge sheet material shows that 49 oxen have been seized, but they were handed over to the petitioner and it is submitted that out of 49, four died natural death and they have also conducted post-mortem and the post-mortem report is also kept in this behalf. On these grounds, he prayed to allow the petition.
5. Per contra, the learned counsel appearing on behalf of the respondents vehemently argued and submitted that respondent Nos.2 to 4 are the owners of the said bullocks; they are having the licence to trade in animals and they have also produced the receipt for having purchased the said bullocks from the APMC. After considering the said facts and circumstances, the Courts below have ordered the interim custody of the said bullocks in favour of respondent nos.2 to 4. It is his further submission that when the respondents have CRL.P. NO.100900 OF 2019 :8: proved that they are the owners of the said bullocks, then they are entitled to the custody of the said animals. It is his further submission that the owner is having a right to the custody of the said goods or the animals which have been seized in a criminal case. To substantiate his arguments, he relied upon the decision in the case of Manager, Pinjrapole Deudar and Another Vs. Chakram Moraji Nat and Others reported in (1998)6 SCC 520. He further submitted that the petitioner has not maintained the said animals in a proper way and as per his instructions no animals are there in the pinjrapole and that they are charging Rs.200/- animal and only to gain the said amount the petitioner is seeking interim custody. The Trial Court, after considering all the material, has rightly passed the order and there are no grounds to interfere with the orders of the Courts below. On these grounds, he prayed to dismiss the petition.
CRL.P. NO.100900 OF 2019 :9:
6. I have carefully and cautiously considered the submissions made by the learned counsel appearing for the parties and perused the records.
7. At the outset, it is appropriate to mention here that huge numbers of cattle are being transported without any facility in the vehicles in an inhumane manner and thereby they violate the provisions of the Act, 1960. It is also noticed by this Court that during the transportation of animals, they are stuffed with chilli in their eyes in order to prevent them from sleeping during the course of transit and also to prevent them from moving from their place in the vehicle. Their nose is roped and fastened and they will be carried in a suffocated manner from one place to another place. It is also noticed that during the transit some animals are going to loose their life and the said animals are used and transported only for the purpose of butchering them. That is a matter which depends on the each case of the prosecution.
CRL.P. NO.100900 OF 2019 : 10 :
8. In the case on hand, chargesheet has been filed against the accused persons alleging that they violated the provisions of Sections 4, 5, 7, 8 and 11 of the Act, 1964; Section 11(1) of the Act, 1960; and under Sections 429 and 278 of the Indian Penal Code. If a discussion is made on the said matter at this juncture, it would prejudice the main matter and as such, I am not inclined to go in detail because the scope of this petition is limited only to consider whether the petitioner is entitled to the interim custody of the said animals.
9. As could be seen from the Rules, Rule 3 reads as under:
"3. Custody of animals pending litigation.- When an animal has been seized under the provision of the Act or the rules made thereunder-
(a) x x x x x x x x x
(b) the magistrate may direct the animal to be housed at an infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala during the pendency of the litigation;
CRL.P. NO.100900 OF 2019 : 11 : On a close reading of sub-rule (b) of the said Rule, it is seen that the Magistrate may direct the animal to be used at an infirmary, panjarpol, SPCA, Animal Welfare Organisation or a Gaushala during the pendency of the litigation. However, the Hon'ble Apex Court in the Case of Manager, Pinjrapole Deudar, (quoted supra), has observed at para 10 as under:
"10. Now adverting to the contention that under Section 35(2), in the event of the animal not being sent to an infirmary, the Magistrate is bound to give the interim custody to Pinjrapole, we find it difficult to accede to it. We have noted above the options available to the Magistrate under Section 35(2). That sub- section vests in the Magistrate the discretion to give interim custody of the animal to Pinjrapole. The material part of the sub-section (shorn of other details) will read, the Magistrate may direct that the animal concerned shall be sent to a Pinjrapole. Sub-section (2) does not say that the Magistrate shall send the animals to Pinjrapole. It is thus evident that the expression "shall be sent" is a part of the direction to be given by the Magistrate if in his discretion he decides to give interim custody to Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has CRL.P. NO.100900 OF 2019 : 12 : discretion to hand over interim custody of the animal to Pinjrapole but he is not count to hand over custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, the Pinjrapole has no preferential right. In deciding whether the interim custody of the animal be given to the owner who is facing prosecution, or to the Pinjrapole, the following factors will be relevant:
(1) the nature and gravity of the offence alleged against the owner;
(2) whether it is the first offence alleged or he has been found guilty of offences under the Act earlier;
(3) if the owner is facing the first prosecution under the Act, the animal is not liable to be seized, so the owner will have a better claim for the custody of the animal during the prosecution;
(4) the condition in which the animal was found at the time of inspection and seizure;
(5) the possibility of the animal being again subjected to cruelty. There cannot be any doubt that establishment of Pinjrapole is with the laudable object of preventing unnecessary pain or suffering to animals and providing protection to them and birds. But it should also be seen, CRL.P. NO.100900 OF 2019 : 13 :
(a) whether the Pinjrapole is functioning as an independent organization or under the scheme of the Board and is answerable to the Board; and
(b) whether the Pinjrapole has a good record of taking care of the animals given under its custody.
A perusal of the order of the High Court shows that the High court has taken relevant factors into consideration in coming to the conclusion that it is not a fit case to interfere in the order of the learned Additional Sessions Judge directing the State to hand over the custody of the animals to the owner." In the said case, it has been observed that in deciding whether interim custody of animals is to be given to the owner who is facing prosecution or to the Pinjrapole, their Lordships have given certain guidelines and factors which are to be considered by the Court while dealing with such an application. The said guidelines are as under:
(1) the nature and gravity of the offence alleged against the owner;
(2) whether it is the first offence alleged or he has been found guilty of offences under the Act earlier;
CRL.P. NO.100900 OF 2019 : 14 : (3) if the owner is facing the first prosecution under the Act, the animal is not liable to be seized, so the owner will have a better claim for the custody of the animal during the prosecution;
(4) the condition in which the animal was found at the time of inspection and seizure;
(5) the possibility of the animal being again subjected to cruelty;
(6) whether the pinjrapole is functioning as an independent organization or under the scheme of the Board and is answerable to the Board; and (7) whether the pinjrapole has a good record of taking care of the animals given under its custody.
10. Keeping in view the above said facts and circumstances and the guidelines issued by the Hon'ble Apex Court, if the chargesheet material is perused the accused persons have been chargesheeted under the provisions of the Act, 1964; 1960 Act and IPC; even seizure mahazar drawn by the police dated 18.11.2018 in the presence of panch witnesses goes to show that the said bullocks were tied and were left in a compound CRL.P. NO.100900 OF 2019 : 15 : and that there was no shelter and other material to the said animals from where that they have been seized and even that they have seized 50 horns of the animals from the said place. The accused being the traders in cattle, I find that the cattle, if again, left with the owners is likely to expose them to further cruelty and if the cattle is given to their custody then there is every likelihood of they being misused. All these materials, which is found from the police records, goes to show that if the said animals are given to the custody of Respondent Nos.2 to 4. Then under such circumstances there will be violation of the above said provisions of law.
11. I have carefully and cautiously gone through the decision of the Hon'ble Apex Court. While interpreting Section 35(2) of the said Act, it has been observed that the Magistrate is having discretion to give the interim custody of the animals to pinjarpole. But, at the same time, the Court has to see that when it is to be given to owner and the condition in which the animal CRL.P. NO.100900 OF 2019 : 16 : was found at the time of inspection and seized also to be kept in view while giving interim custody. This Court directed the petitioner to file the present position of the animals in their custody and rearing them. He has filed his report along with photographs. The said animals are in a healthy condition and they have been well- protected. Under the said facts and circumstances, I feel that the interim custody, if given to the petitioners with a direction that they should not claim any charges from respondent Nos.2 to 4 till the finalization of the case and they should maintain the animals in a good and healthy condition without there being any cruelty, it would meet the ends of justice.
With the above condition, the petition is allowed and the interim custody of the animals is given to the petitioners till the disposal of the case pending before the Court below.
CRL.P. NO.100900 OF 2019 : 17 : After disposal of the case finally, the Court below can take a decision for disposal of the property in accordance with law. Since the live stock is involved in this case and both petitioners as well as respondent Nos.2 to 4 are fighting for the interim custody, I feel that if the case is expeditiously disposed of within a period of six months from the date of receipt of a copy of this order, it would meet the ends of justice.
Sd/-
JUDGE Kms