Karnataka High Court
Dhyan Foundation Gau Raksha Trust vs State Of Karnataka By on 8 March, 2017
Equivalent citations: 2017 (4) AKR 87
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.9597 OF 2016
BETWEEN:
DHYAN FOUNDATION GAU RAKSHA TRUST
A REGISTERED TRUST HAVING ITS OFFICE
AT # 302, A BLOCK
RANKA D-PARADISE
153, WHEELERS ROAD, FRASER TOWN
BENGALOORU-560 005
REPRESENTED BY ITS AUTHORISED SIGNATORIES
ARAVIND AND SAHANA ... PETITIONER
(By Sri: G S PRASANNA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
KALLAMBELLA POLICE STATION
REPRESENTED BY PUBLIC PROSECUTOR
2. C JAYAPRAKASH
AGED ABOUT 29 YEARS
S/O CHANDRAPPA
AAYATHOLU VILLAGE, IYYANAHALLI
CHITRADURGA TALUK AND DISTRICT-577501.
... RESPONDENTS
2
(By Sri: VIJAYKUMAR MAJAGE, ADDL. SPP FOR R1
SRI.B.V.SHANKAR NARAYANA RAO, ADV FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED
13.12.2016 IN CRL.RP.NO.82/2016 PASSED BY THE II ADDL.
DIST. AND S.J., TUMAKURU AND CONFIRM THE ORDER DATED
22.09.2016 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, SIRA
IN CR.NO.203/2016.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.02.2017 AND COMING ON FOR
PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE
THE FOLLOWING:-
ORDER
In this petition filed under section 482 of Cr.P.C., the petitioner has called in question the order dated 13.12.2016 passed by the II Addl. District & Sessions Judge, Tumakuru, in Crl.R.P.No.82/2016 reversing the order passed by the Prl. Civil Judge and JMFC, Sira in Cr.No.203/2016 dated 22.9.2016. 3
2. Brief facts essential for the disposal of the petition are as follows:
The respondent No.1 Kallambella Police seized seven cattle (oxen) under PF No.134/2016 and registered a case against second respondent C.Jayaprakash for the offences punishable under section 429 of Indian Penal Code, sections 4, 8, 9 and 11 of the Karnataka Prevention of Cow Slaughter and Cattle Prevention Act 1964, section 11(1)(D) of Prevention to Cruelty to Animals Act 1960, sections 192(A) and section 177 of I.M.V. Act and sections 46 to 57 and 96 to 98 of the Transportation of Animals Act 1978. Before the learned Magistrate, the petitioner herein namely Dhyan Foundation Gou Raksha Trust as well as the 2nd respondent/accused filed applications under section 457 of Cr.P.C., praying to release the seven cattle seized in PF 134/2016 to their respective interim custody. The second respondent/accused claimed interim custody on the ground that he is the owner of the said oxen and they are very much necessary for his agricultural work. The petitioner herein 4 claimed interim custody thereof to prevent the slaughter of the said cattle, as it is fully equipped and possessed sufficient fodder, water and medicine to protect the animals.
3. The learned Addl. SPP opposed the application of respondent No.2 contending that if the oxen are released to the interim custody of the second respondent, there are chances of selling the same and using the same for committing similar offences. The I.O. submitted a report to the effect that the seized seven oxen were transported for slaughter without any license and protection. The learned Magistrate rejected the claim of the second respondent on the ground that the second respondent did not produce any documents to prove that he was the owner of the seized oxen. Further the learned Magistrate observed that on perusal of the prosecution papers and the material produced before him, the accused were transporting the oxen in a goods vehicle without any protection in a cruel and inhuman manner and without any valid license. Further the learned Magistrate observed that if the oxen are released to the 5 interim custody of second respondent, there are chances of committing similar offence and slaughtering them and hence, rejected the application of the second respondent and allowed the application of the petitioner herein observing that the petitioner being a charitable trust engaged in the activities of looking after the welfare of the cattle is entitled for interim custody of the cattle.
4. The second respondent challenged the said order under section 397 of Cr.P.C., and the learned II Addl. District & Sessions Judge, Tumakuru by the impugned order dated 13.12.2016, set-aside the order of the learned Magistrate and granted interim custody of the seized seven oxen to the second respondent subject to executing an indemnity bond for Rs.2,00,000/- on condition that the second respondent shall not sell the oxen and part with the possession until disposal of the case and produce them as and when called upon by the Trial Court.
6
5. The order passed by the revisional court is called in question by the petitioner herein inter alia contending that in the absence of any documents to establish his ownership, the custody of the seized oxen should not have been granted to the second respondent. Further it is contended that the revisional court has failed to consider the citations relied on by the petitioner and the charge sheet having already been filed against second respondent, there is sufficient material on record to demonstrate that the oxen were transported for purpose of slaughtering and therefore, second respondent is not entitled for custody of seized oxen.
6. I have heard the learned counsel for the petitioner and the learned counsel for the respondent No.2 and learned HCGP.
7. The question that arises for consideration is:
Who amongst the two rival claimants are better entitled for the custody of the seized oxen?7
8. Section 457 of Cr.P.C. empowers the Magistrate "to make such order as he thinks fit." But, this power is circumscribed by the limitation that he is required to (1) deliver the property to the person entitled to the possession thereof; (2) if such person cannot be ascertained, to pass appropriate orders for custody thereof. The section does not say that the articles should be made over to the person from whom it was seized, but to the person entitled to the possession thereof. The expression "entitled to possession" would normally mean lawful or rightful title to hold the property. It is only when the lawful or rightful title to hold the property is not established, the property should be ordered to be delivered to the person from whose possession it was seized.
9. In the instant case, it is not in dispute that the second respondent is prosecuted for the alleged violations as the owner of the cattle/oxen. In column (ix) of the charge-sheet, accused No.3 namely respondent No.2 herein is described as 8 "owner of the cattle/oxen 7 Nos. Ayatholu village, Iyyanahalli, Chitradurga Taluk". Therefore, the learned Magistrate was in patent error in rejecting the claim of the respondent No.2 on the ground that the respondent No.2 has not produced any document to show the ownership of the seized cattle. Undisputably, the rival claimant namely the petitioner herein does not possess any document of ownership in respect of the seized oxen. As a matter of fact, the petitioner is a total stranger and intervener who could not have maintained the application under section 457 of Cr.P.C. As the petitioner does not satisfy any of the requirements of section 457 of Cr.P.C., as against the second respondent, the petitioner herein is totally disentitled for the custody of the seized oxen. Therefore, in my view, the claim made by the petitioner herein is liable to be rejected outright.
10. There are no allegations in the charge-sheet that the second respondent has been transporting the cattle in "a cruel and inhuman manner". Records reveal that the complaint was 9 lodged by one Kowshik.P. who has described himself as honorary Animal Welfare Officer from Animal Welfare Board. It is pertinent to note in the complaint he has stated that, "These vehicles was intercepted at 10.45 A.M. on N H 48 in Kalambella Police Station limits by the Highway Petrol, the cleaners have fled from the spot, there are 7 cattle in the vehicle. The vehicle does not have any permit to transport cattle. They do not have any valid certificate stating that the cattle are fit for transportation. The cattle are stuffed into the vehicle in a cruel and inhuman manner."
11. From the reading of the complaint, it is clear that the complainant himself took the vehicle to the Police Station. Panchanama is seen to have been prepared in the Police Station. It is relevant to note that in the panchanama it is mentioned that, mÉA¥ÉÆÃzÀ M¼À ¨sÁUÀzÀ°è CqÀ¯ Ø ÁV MAzÀPÉÆAÌ zÀÄ C®ÄUÁqÀzAÀ vÉ eÁ£ÀĪÁgÀÄUÀ¼£ À ÀÄß PÀl¯ Ö ÁVzÉ. eÁ£ÀĪÁgÀÄUÀ¼£ À ÀÄß Jt¸¯ À ÁV 7 JvÀÄU Û ¼ À ÀÄ EzÀÄ,Ý JvÀÄU Û ¼ À ÀÄ C®ÄUÁqÀzAÀ vÉ MAzÀPÉÆAÌ zÀÄ vÁVPÉÆAqÀÄ 10 ¤°è¹zÀÄ.Ý F eÁ£ÀĪÁgÀU¼ À À ªÀÄÆUÀtU Â É ºÀUU ÀÎ ¼ À À£ÀÄß PÀnÖ ªÉÄïÁãUÀ mÉA¥ÉÆà PÉÆðUÉ PÀng Ö ÀÄvÉ.Û mÉA¥ÉÆà PÁå©£ï PÀqÉ 3 zÀ£U À ¼ À £ À ÀÄß, »A¨sÁUÀzÀ PÀqÉ 4 zÀ£U À À ¼£ À ÀÄß PÀng Ö ÀÄvÉ.Û ¸Àzj À JvÀÄU Û ¼ À ÀÄ ¸ÀĪÀiÁgÀÄ 12 ªÀµÀð ¥ÁæAiÀÄzÀ JvÀÄU Û ¼ À ÁVzÀÄ,Ý ¸ÀĪÀiÁgÀÄ JgÀqÀÄ ®PÀë ¨É¯É ¨Á¼ÀÄvÉAÛ vÀ ºÁUÀÆ mÉA¥ÉÆÃzÀ ¨É¯É 3 ®PÀë ¨É¯É ¨Á¼ÀÄvÉAÛ vÀ ¥ÀAZÁAiÀÄÄÛzÁgÀgÁzÀ £ÀªÀÄäU¼ À À C©ü¥ÁæAiÀĪÁVgÀÄvÉ.Û
12. A reading of this panchanama indicates that apart from the seven oxen, there were seven cows. It is not known as to whether the said cows were also seized under the said panchanama. But the property form discloses that permission was sought from the learned Magistrate to forward only seized seven oxen to G.G.F. Goshala at Gubbi. The endorsement made thereon discloses that the learned Magistrate had permitted to retain the said oxen.
13. From the above facts, it is clear that the second respondent is prosecuted as owner of the seized oxen. Therefore, in my opinion, the second respondent is legally 11 entitled to the custody of the seized oxen. However, as there are allegations of ill-treatment and cruelty to the said animals and the prosecution having voiced concern that the animals were being transported for slaughter, in order to effectuate the objects of the Karnataka Prevention of Cow Slaughter and Cattle Prevention Act 1964 and Prevention to Cruelty to Animals Act 1960, pending trial, it would be just and proper to shift the seized oxen to any State run Goshala for their preservation and upkeep.
Accordingly, the petition is disposed of. It is directed that the seized seven oxen be kept either in G.G.F. Goshala at Gubbi or in any other State run Goshala and the Government shall undertake to take the entire responsibility of the preservation of seven oxen so long as the matter is under trial.
Sd/-
JUDGE Bss.