Jharkhand High Court
Md Salim And Others vs The State Of Jharkhand And Anr on 19 March, 2013
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.1552 of 2012
1.Md.Salim
2.Siraj Kureshi
3.Irphan Ahmad..........................................Petitioners
VERSUS
State of Jharkhand and another.......Opposite Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners : Mr.B.N.Singh, Sr. Advocate
For the State :A.P.P
For the Complainant: Mr.Indrajit Sinha, Advocate
Reserved on 6.11.2012 Delivered on 19.3.2013
19.3.13. This application has been filed for quashing of the entire criminal proceeding of P.C.A Case no.110 of 2012 including the order dated 12.7.2012 whereby and whereunder cognizance of the offences punishable under Sections 3, 11(i)(a)(d)(e)(f)(h)(i)(k), 38(3), 39(4)(b), 29(1)(2)(3) and (5) of the Prevention of Cruelty to Animal Act, 1960 as well as Rules 47, 48,49, 50, 52,54, 96, 97 of the Cattle Transportation, 1978 and also Sections 3, 4, 4(a), 4(d), 5, 12(1)(2)(3) and 5 of the Jharkhand Bovine Animals Prohibition of Slaughter Act, 2005 as well as under Rules 5, 6 and 7 of the Jharkhand Bovine Animals Prohibition of Slaughter Rules, 2011 has been taken against the petitioners.
Before adverting to the submissions advanced on behalf of the petitioners, case of the complainant needs to be taken notice of.
It is the case of the complainant, Inspector I/C, SPCA, Jharkhand that one truck, bearing registration no.BR-44G-0114 when was intercepted by the complainant within the area of Rajganj Police Station, Dhanbad, 19 Bovine Animals (consisting of one young dry cow and eighteen bullocks) in place of six adult animals were found being carried in a condition which was not at all conducive for them tobe carried and that too without any facility for food, water and medicines which was in contravention of the provisions of the Act and Rules and, therefore, the truck along with 19 Bovine Animals were seized under the seizure list and those animals were handed over to Sri Ganga Gaushala, Katras, Dhanbad for their safe custody, daily maintenance and medical care as per relevant provision of the prevention of cruelty to Animal Act as well as Jharkhand Bovine Animals Prohibition of Slaughter Act, 2005 and the truck was handed over to Rajganj Police Station, Dhanbad for safe custody.
During investigation, it was found that the aforesaid animals were being transported from Arwal, Jehanabad,Bihar via Dhanbad (G.T. Road) to Ilam Bazar Pasuhatt, Birbhum, West Bengal for the purpose of their slaughter.
On such allegation, prosecution report was submitted on 12.7.2012, upon which cognizance of the offences as aforesaid was taken which is under challenge.
Mr.B.N.Singh, learned Sr. counsel appearing for the petitioners submitted that the complainant never happens to be an Inspector of Police, rather happens to be an Inspector of an N.G.O known as SPCA, Jharkhand, who has never been authorized under the Act to launch prosecution rather duties and power of the members of such Society under Rule 3(1) of the Rules of Establishment of Regulation of Societies for Prevention of Cruelty to Animals,2001 are to aid the Government or Local Authority to enforce provision of prevention of cruelty to animal Act but the complainant not only effected search and seizure but has also launched prosecution by filing prosecution report, upon which cognizance of the offence was taken, though under the provision as contained in Section 32 of the prevention of Cruelty to Animal Act, 1960, it is only the police officer who can launch prosecution under the prevention of cruelty to Animal Act and thereby the court committed illegality in taking cognizance of the offence against the petitioners.
It was further submitted that Prevention of Cruelty to Animal Rules, 2001 has been framed under Section 38(1) of the Prevention of Cruelty to Animal Act, 1960 whereby under Rule 3 District SPCA has been established in every district to which Deputy Commissioner is the President whereas Superintendent of Police is the vice-President whereas other officials such as, District Animal Husbandry Officer, District Animal Husbandry Doctor, Divisional Forest Officer including two members the representatives of the Animal Welfare Organization actively involved in the work of prevention of cruelty to animal and welfare of the animal shall be the member. That apart one person elected by the general body of the members of the society shall also be the member.
In this regard it was further pointed out that the society as has been formed by the Government would also include a society of prevention of cruelty to animal functioning in the district on the date of commencement of the Rules but inspector, who has lodged the prosecution is not the Inspector of Society functioning in the district of Dhanbad, rather it is the society which is known as SPCA, Jharkhand and the Director of the SPCA claims to have deputed the complainant at Dhanbad but in spite of that the complainant does not have any authority to make search and seizure and to launch prosecution under the prevention of Cruelty to Animal Act and also under the provision of Jharkhand Bovine Animal Slaughter Act.
In this regard it was further submitted that in any event, any inspector of the society registered by the Central Animal Welfare Board will have no jurisdiction to launch prosecution under Section 32 of the Prevention of Cruelty to Animal Act rather only the police officer can launch prosecution and thereby the prosecution launched by the complainant would vitiate the entire prosecution and thereby the order taking cognizance is fit to be quashed.
As against this, Mr.Indrajit Sinha, learned counsel appearing for the opposite party no.2 submitted that Society for Prevention of Cruelty to Animals (SPCA, Jharkhand) is an Animal Welfare Organization which is duly registered under the Societies Registration Act and has been accorded recognition by the Animal Welfare Board of India. The same has been formed with its aim and objective of prevention of pain, suffering and cruelty to animals and to secure welfare of the animals through out the State of Jharkhand.
He would further submit that Section 32(1)(2) and also Section 34 of the Prevention of Cruelty to Animal Act, 1960 does empower a police officer to make search and seizure of the animals in case of violation of the provisions of the Act. At the same time, the said provision does also stipulate that the State Government may confer power of search and seizure upon a person which include society and, therefore, erstwhile State of Bihar had issued notifications nos.4273 and 4275 dated 7.6.1990 whereby Inspectors appointed by the Society for Prevention of Cruelty to Animals Act were empowered to exercise power under Section 13(3), 32(1), (2) and 34 of the Act. Subsequently, when Rules of Establishment and Regulation of Societies for the Prevention of Cruelty to Animals, 2001 were framed, a letter was issued, vide memo no.2226 dated 28.8.2002 wherein it has been stated that the Inspector of the SPCA, Jharkhand has been exercising power under the Act unauthorizedly as the Rule, 2001 does stipulate that only the Inspector of the Society established in the district in terms of the Rule 2001 can exercise the power and therefore, Deputy Commissioner, Superintendent of police of Dhanbad was requested to take action against the Inspector exercising power under the Act unauthorizedly. A similar letter dated 2.8.2002 was issued by the Joint Secretary, Government of India, Ministry of E and F, Animal welfare Division stating same thing that SPCA constituted for the district would confine to the limit of the district.
The aforesaid orders were challenged before this Court, vide W.P (C) No.5479 of 2002 whereby this Court, vide order dated 4.10.2002 stayed operation of the orders contained in the letters. The same remained pending for years together and when State of Jharkhand framed a Rule for establishing SPCA in the district in terms of Rule 3 of the Establishment and Regulation of Societies for the Prevention of Cruelty to Animals, 2001, a notification was issued on 1.6.2011 empowering the Inspector appointed by the SPCA, Jhakrhand to make search and seizure and to launch prosecution which power was being exercised earlier to them under the supervision of S.P/Dy.S.P of the district. When such notification empowering the Inspector of SPCA, Jharkhand to carry out the provisions of Prevention of Cruelty to Animal Act was issued, the aforesaid writ application was withdrawn. In such situation, the Inspector (complainant) when did find that 19 bullocks were being carried in contravention of the provisions of Prevention of Cruelty to Animals Act and also Jharkhand Bovine Animals Prohibition of Slaughter Act effected search and seizure and launched prosecution and as such, neither seizure nor prosecution can be said to be bad and thereby the order taking cognizance never warrants to be quashed.
In the context of the submissions advanced on behalf of the parties, one needs to take notice of the provision as contained in Sections 32 and 34 of the Prevention of Cruelty to Animal Act, 1960. So far section 32 of the Act is concerned that relates to the power of search and seizure but since it is for the specific purpose not relevant for the purpose of this case, it is being not referred to whereas Section 34 deals with the general power of seizure which reads as follows:
34- General power of seizure for examination - Any police officer above the rank of a constable or any person authorized by the State Government in this behalf, who has reason to believe that an offence against this Act has been or being, committed in respect of any animal, may, if in his opinion the circumstances to require, seize the animal and produce the same for examination by the nearest magistrate or by such veterinary officer as may be prescribed, any such police officer or authorized person may, when seizing the animal, require the person in charge thereof to accompany it to the place of examination.
From its perusal it does appear that not only the police officer above the rank of a constable but even a person which in terms of provision of the General Clauses Act can be a society, authorized by the State Government may make search and seizure when he has reason to believe that the provisions of Prevention of Cruelty to Animal Act, 1960 has been violated.
For the purpose of carrying out the provisions of the said Act, a Rule has been framed in the year 2001 which is known as Rules of the Establishment and Regulation of Societies for Prevention of Cruelty to Animal, 2001.
Rule 2(e) of the said Rule defines society as follows:
"Society means Society for Prevention of Cruelty to Animals (hereinafter referred to as SPCA) established in any district under the Societies Registration Act, 1860 (21 of 1860) or any other corresponding law applicable in a State and shall include the existing SPCA functioning in any district.
Further Rule 3 does prescribe that every State Government shall, by notification in the Official Gazette, establish, as soon as may be and in any event within six months from the date of commencement of these rules, a society for every district in the State to be the SPCA in that district.
In compliance of the provision of the aforesaid rules, a notification was issued by the State of Jharkhand on 1.6.2011 whereby a committee known as "district Prevention of Cruelty to Animal Act Committee" was formed in every district consisting of Deputy Commissioner of the district as Chairman, Superintendent of Police as Vice-Chairman and also District Animal Husbandry Officer, District Animal Doctor, Divisional Forest Officer and two members of the society registered in the district.
Since notification has been made for constitution of the society in every district, plea is being taken on behalf of the petitioners that provision of the Act is to be carried by the said committee constituted n every district.
Further submission is that though as per definition of the society given in Rule 2(e) of the Establishment and Regulation of Societies for the Prevention of Cruelty to Animal, 2001, SPCA functioning from before may act to carry out the provision of the Act but that SPCA should be recognized at the district level. Since the society by whom opposite party no.2 was appointed as Inspector, Dhanbad has never been established in the district of Dhanbad, rather it has been established at the State level, the society of which complainant is the Inspector can not be said to be a valid society in terms of Rule 2(e).
But all these submissions loose its ground in view of the notification dated 1.6.2011 whereby decision has been taken to constitute SPCA in the district consisting of Deputy Commissioner and the members as aforesaid but at the same time, it had been notified in order to carry out the provisions of the Act that the Inspector appointed by the SPCA, Jharkhand in the district will go on effecting search and seizure and to launch prosecution as was being done from before under the supervision of Superintendent of Police or Dy. Superintendent of Police in order to carry out the provisions of the Act.
Thus, it does appear that the Inspector appointed by the SPCA, Jharkhand has been empowered not only to carry out search and seizure but to launch prosecution also under the Act. In exercise of such power, opposite party no.2 when found 19 bullocks being carried over a truck in contravention of the provision of Prevention of Cruelty to Animal Act, 1960 and also the Jharkhand Bovine Animals Prohibition of Slaughter Act, 2005, seized bullocks and after completing the investigation, submitted prosecution report.
It is true that under the Jharkhand Bovine Animals Prohibition of Slaughter Act, 2005, the Inspector SPCA has not been empowered to make search and seizure but since there was a violation under the Prevention of Cruelty to Animal Act, a search and seizure effected can be said tobe in connection with the offence under the Prevention of Cruelty to Animal Act, 1960 . While launching prosecution under Prevention of Cruelty to Animal Act, the complainant cannot be said to have committed any illegality in launching prosecution also under the Jharkhand Bovine Animals Prohibition of Slaughter Act, 2005 as offences thereunder being cognizable, any one can set the law in motion for commission of the offence under the aforesaid Act.
Therefore, I do not find any illegality with the order taking cognizance and hence, it never warrants to be quashed.
Before parting with the order, it be recorded that one more prayer is there in the petition with respect to release of the animals which has been seized but since the petitioners have never moved before the court below for release of the animals, I am not inclined to entertain the said prayer in exercise of power under Section 482 of the Code of Criminal Procedure. Thus, this application stands dismissed.
( R.R.Prasad, J.) ND/