Delhi High Court
People For Animals & Anr. vs Md Mohazzim & Anr. on 8 August, 2018
Author: R.K.Gauba
Bench: R.K.Gauba
$~9
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 08th August, 2018
+ CRL.M.C. 2051/2015 and Crl. M.A. 7294/2015
PEOPLE FOR ANIMALS & ANR. ..... Petitioners
Through: Mr. Satyam Thareja, Advocate
versus
MD MOHAZZIM & ANR. ..... Respondents
Through: Imtiaz Ahmed, Mrs. Naghma
Imtiaz and Ms. Azna Rehan, Advocates for
R-1
Mr. Mukesh Kumar, APP for the State with
SI Subhash Chand, PS Lajpat Nagar
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner describes itself as a philanthropist organization doing work in the field of prevention of cruelty towards animals and for their general welfare. It has come up to this court invoking its inherent power under Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) read with Article 227 of the Constitution of India to challenge the order of the Metropolitan Magistrate, as confirmed in revision by the court of Sessions, releasing a set of birds to the first respondent (accused) in the corresponding criminal case for interim custody (superdari).
Crl. M.C. No.2051/2015 Page 1 of 102. It is stated that upon receiving information from the petitioner through its President Mr. Gaurav Gupta, on 13.10.2014 that some person was indulging in illegal trading in animals and birds, confining them in such a manner as amounted to inflicting cruelty within the mischief of the provisions, inter alia, of the Prevention of Cruelty to Animals Act, 1960 and Rule 2 of the Prevention of Cruelty (Capture of Animals) Rules, 1979, Sub Inspector Subhash Chand of Police Station Lajpat Nagar, assisted by certain other police officials, proceeded to the place in question described as opposite pet shop at BRT corridor near Moolchand Hospital. The first respondent (hereinafter referred to as "the accused") was found present having in his possession a large number of animals and birds, which had been kept in cages on the public street, apparently with the intent of they being offered for sale to the public at large, they statedly being subjected to cruelty. The animals and birds were seized by formal proceedings that were drawn up and handed over to the representative of the petitioner for being taken for medical aid to Sanjay Gandhi Animal Care Centre, a society registered under Societies Registration Act, 1860, it being a unit of Ruth Cowell Foundation having facility for animal care and shelter near Shivaji College, Raja Garden, New Delhi. The first respondent was arrested and released on bail. The police official logged daily diary (DD) entry no.34A in the police station on 13.10.2014 and presented a kalandara (complaint) in the court of Magistrate on 15.10.2014 seeking prosecution of the first respondent for the offence under Section 11(1)(a) of the Prevention of Cruelty to Animals Act, 1960.
Crl. M.C. No.2051/2015 Page 2 of 103. The first respondent (accused) moved an application on 15.10.2014 in the court of the Metropolitan Magistrate seeking release of the seized animals and birds on superdari in his favour. This application was considered by the said court in light of the report submitted by the investigating police officer. By order dated 20.10.2014, the Magistrate directed release on superdari of the seized animals and birds in favour of the first respondent against superdarginama in the sum of Rs.2,00,000/- with directions to the police, and to the first respondent (superdar), as under :-
"IO of the case shall ensure that the birds and animals are handed over to the superdar by meeting the condition required for transport of animal and birds as per provision of Transportation of Animal Act, 1978 and the superdar shall also furnish to the IO a certificate of the certified Veterinary Doctor to the fact that birds and animals are fit for transportation. IO shall also ensure that animals are property tagged with the tag number and birds are tagged with aluminum plate by their clow / legs for identification for future purpose. The satisfaction of these conditions shall be obtained by the IO and not by any other authority.
xxx The applicant shall take proper care and custody of the aforementioned animal and birds and shall produce the same as and when required before the court. The superdar shall also provide the medical treatment to the aforementioned birds and animals. The applicant shall not sell the birds and animals and in case any of them die he shall inform the IO during the investigation and to the court trial along with documents.Crl. M.C. No.2051/2015 Page 3 of 10
The applicant is also directed to submit the report to the IO after every 3 months with respect to the health of the aforementioned birds and animals till filing of charge sheet. SHO concerned is directed to release the animals and birds to the applicant after satisfying himself about the identity and fitness of the animals and further the ownership proof of applicant qua animal and birds. IO is directed to put identification mark on each animal and birds and shall take the photographs of each animal and birds from all angles. IO will file the superdarinama alongwith photographs at the time of filing the police report."
4. On 20.10.2014, the first respondent moved another application seeking relaxation of certain conditions in the superdari order. This application was considered by the Metropolitan Magistrate and, by order passed thereupon on 30.10.2014, the condition of "tagging" of the birds and animals with aluminum plates was waived and the investigating police officer was directed to take group photographs of the birds and animals at the cost of the accused. On 03.11.2014, the accused moved yet another application seeking primarily a direction to the Superintendent of Sanjay Gandhi Animal Care Centre to produce the seized birds and animals before the court for being handed over. The Metropolitan Magistrate agreed with the submissions at that stage that medical examination of the seized birds and animals by government doctor was not required and certification about good health by a doctor practicing veterinary medicines would suffice.
5. The status report dated 27.05.2015 by the SHO of police station Lajpat Nagar would reveal that, in the meantime, on 29.10.2014, Sanjay Gandhi Animal Care Centre had reported that 43 birds and 5 Crl. M.C. No.2051/2015 Page 4 of 10 rabbits out of the seized birds and animals had died "due to shock". Eventually, on 06.11.2014, 91 birds and animals were released to the first respondent. On 07.11.2014, Sanjay Gandhi Animal Care Centre reported death of one black cat "due to high fever". Some birds and animals continued to remain with the said facility i.e. Sanjay Gandhi Animal Care Centre. The Metropolitan Magistrate passed yet another order for their release on 17.11.2014. He issued further directions on 27.11.2014 and 29.11.2014 but inspite of the Animal Care Centre being approached for compliance with the release order(s), the remaining birds and animals were not handed over on superdari for some reason or the other.
6. The petitioner, however, felt aggrieved by the said orders and approached the Sessions court invoking its revisional jurisdiction by submitting petition (Crl. Revision No.49/14) challenging their correctness, legality and propriety. The revisional court dismissed the said revision petition, by order dated 10.03.2015, observing that there was no illegality or perversity in the view taken by the Magistrate.
7. Pertinent to note that while praying for release on superdari, the first respondent had claimed to be the rightful owner of the birds and animals denying that there was any possibility of they being subjected to any cruelty. In resisting the revision petition before the court of Sessions, he sought to explain that he was dealing in the trade of "exotic birds" and had all the requisite facilities for such purposes, his submission being that the birds in question were so "delicate" that if Crl. M.C. No.2051/2015 Page 5 of 10 subjected to cruelty, they would die and, therefore, he had been keeping them in a healthy atmosphere.
8. The core reasoning on the basis of which the revisional interference was declined by the court of Sessions is set out in the impugned order dated 10.03.2015 as under :-
"There is no dispute that respondent is not the owner of the seized birds and animals. There is no restriction in dealing and keeping the exotic birds. There is no dispute to the fact that the seized birds are not exotic. In the given circumstances, I do not find any illegality, impropriety or infirmity in the impugned orders passed by learned MM in release of seized birds and animals to respondent on taking superdarinama with specific direction that no cruelty be caused to them. The seized birds and animals be kept in healthy condition and they be regularly examined by the doctor and their fitness be reported to the IO of the case during the course of investigation."
9. The trial court record has been called for and perused.
10. There is whole lot of confusion as to how many birds and animals were seized from the possession of the accused on 13.10.2014. The seizure memo dated 13.10.2014, which was prepared by the investigating police officer is difficult to decipher. On careful scrutiny, however, it seems to be in sync with the report dated 05.12.2014 of Sanjay Gandhi Animal Care Centre. The accused, in his application dated 29.10.2014, had given a list of seized birds and animals setting out their value in terms of Indian rupee. The description of the birds and animals in whose respect he was seeking medical report does not match completely either with the seizure Crl. M.C. No.2051/2015 Page 6 of 10 memo or with the report of the Sanjay Gandhi Animal Care Centre. Broadly speaking, as was also brought out at the hearing, the case involves approximately 272 birds and 22 animals. It appears from the documents on record that these birds and animals were found confined in twenty-eight cages.
11. Though the accused would claim, in his application for release of the birds and animals, that he had the requisite facilities for keeping them in a healthy atmosphere, he has not come up, till date with any details or particulars of such facilities. Though he claims to be the owner of such birds and animals - which may be presumed because it was he who was found having them in his possession at the time of the seizure and there being no other claim till date - there is no explanation as to how he had come to be in such possession. From the facts and circumstances, particularly the fact that he was keeping them on the road side, it has to be presumed that he was offering them for sale to the public at large.
12. The statutory provisions contained in the Prevention of Cruelty to Animals Act, 1960 apply to every "living creature other than a human being" and consequently to animals and birds alike [Section 2(a)]. The statute prohibits, by virtue of Section 3, infliction of "unnecessary pain or suffering" upon any animal, a person having care or charge of such animal being obliged "to take all reasonable measures to ensure" its "well-being". This duty is to be read alongside the penal clause contained in Section 11 which has been invoked to seek prosecution of the second respondent herein.
Crl. M.C. No.2051/2015 Page 7 of 1013. The petitioner has submitted two photographs (Annexure P-2) showing some of the cages, with the birds in captivity, as found at the time of the seizure. Going by the description of some of the seized birds and animals, and their number, prima facie it does appear that confinement in small cages of iron mesh would amount to subjecting them to "unnecessary pain or suffering", unreasonably restricting their movement, additionally on account of the space being "over crowded" within the mischief of penal clauses contained in Section 11(1)(a)(e) and (k) of the Prevention of Cruelty to Animals Act, 1960.
14. The possibility that some of these birds and animals, may have suffered injuries or afflictions on account of confinement and captivity in such small cages is writ large in the fact that the death of forty-three birds and five rabbits "due to shock" was reported on 29.10.2014 followed by death of another animal "due to high fever" on 07.11.2014. It does appear that a large number of seized birds and animals included those of foreign origin, e.g. gouldian finch, red lori, cockateel, Australian sun conure etc.
15. The release of the seized birds and animals in favour of the accused merely on the grounds that they are "exotic" and that he is their owner, in the given facts and circumstances, was not justified. The said conduct of the accused, as is the foundation of the criminal case against him under Section 11 of the Prevention of Cruelty to Animals Act, 1960, with absence of any prior verification of the place where he intended to keep them after such release impels this court to conclude that the release of the birds and animals on superdari to the Crl. M.C. No.2051/2015 Page 8 of 10 accused amounted to reviving the possibility of they being subjected to continued cruelty.
16. The orders of the courts below directing the release of the birds and animals to the very person who was prima facie found subjecting them to cruelty ignores the fundamental duty of every citizen of India "to have compassion for living creatures" [Article 51-A (g) of the Constitution of India] and their internationally recognized right to "freedom from pain, injury and diseases" which has been declared to be read into Sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960, and one that requires to "be protected and safeguarded" as per ruling of the Supreme Court in Animal Welfare Board of India vs. A. Nagaraja & Ors., (2014) 7 SCC 547.
17. For the foregoing reasons, the impugned orders of the Metropolitan Magistrate, as indeed the order of the revisional court, are hereby set aside.
18. The superdari of the seized birds and animals handed over to the accused, i.e., the first respondent is cancelled. He is directed to return forthwith all the birds and animals the custody whereof was entrusted to him in terms of the impugned orders by handing them over to the Sanjay Gandhi Animal Care Centre, the management whereof shall continue to take their care till further directions are passed by the criminal court upon conclusion of the proceedings in the case against the second respondent.
19. Before parting, some observations vis-à-vis the manner in which the criminal case under Section 11 of the Prevention of Cruelty Crl. M.C. No.2051/2015 Page 9 of 10 to Animals Act, 1960 has been handled in the court of Metropolitan Magistrate are necessary.
20. The offence under Section 11 of the Prevention of Cruelty to Animals Act, 1960 in the first instance, is punishable with fine only. The case against him, thus, was required to be tried as a summary case. Yet, the proceedings on the kalandara (complaint) have lingered on for almost four years with no effective proceedings taking place. The accused remained absent on some of the dates of hearing leading to duress process being issued. Each time, the case was listed for the notice or charge to be framed, it was adjourned mostly for reasons like non availability of the defence counsel. This cannot go on. A case of this nature has to be proceeded with and taken to the logical conclusion expeditiously.
21. The trial court record would show that the case is now listed on 14th November, 2018. The Magistrate in seisin of the case is directed to proceed with it expeditiously, not granting any further adjournments, taking it to the conclusion within three months of the said date.
22. The petition is disposed of with above directions.
23. A copy of the order shall be sent to the trial court for information and compliance.
R.K.GAUBA, J.
AUGUST 08, 2018 yv Crl. M.C. No.2051/2015 Page 10 of 10