Gujarat High Court
Whether Reporters Of Local Papers May Be ... vs State Of Gujarat on 14 December, 2010
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION No 24 of 1996
WITH
CRIMINAL REVISION APPLICATION NO.
225/1996, 226/1996,
2/1993, 3/1993 AND 408/92
AND
SPECIAL CRIMINAL APPLICATION NO.1431/96
For Approval and Signature:
Hon'ble MR.JUSTICE N.N.MATHUR
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1. Whether Reporters of Local Papers may be allowed
to see the judgements? YES
2. To be referred to the Reporter or not? YES
3. Whether Their Lordships wish to see the fair copy
of the judgement? NO
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder? NO
5. Whether it is to be circulated to the Civil Judge?
NO
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GITABEN B SHAH
Versus
STATE OF GUJARAT
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Appearance:
Cr.R.A. No.24/1996 :
MR NS SHETH, counsel for the petitioner
MR KP RAVAL, APP for the State
MR EE SAIYED, counsel for the respondent No.2
Cr.R.A. No. 408/92, 2/93, 3/93 :
MR NS SHETH, counsel for the petitioners
MR KP RAVAL, APP for the State
Special Criminal Application No.1431/96 :
MR MM TIRMIZI for M/s THAKKAR ASSOCIATES, counsel for the
petitioner
MR KP RAVAL, APP for Respondent No.1
MR NS SHETH, counsel for Respondent No.2
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CORAM : MR.JUSTICE N.N.MATHUR
Date of decision: 08/04/97
COMMON JUDGEMENT
1.In this group of applications, which arises out
of different orders with respect to interim custody of
animals under the Prevention of Cruelty to Animals Act,
1960 (hereinafter referred to as 'the Act of 1960'), the
following questions arise for consideration :
Q-1 Whether Pinjrapole has locus to apply and also
approach to the High Courts in the matter of
interim custody ?
Q-2 Whether as a rule pending investigation, enquiry
or trial, the custody of the animal should be
given to Pinjarapole ?
Q-3 Whether the owner of the animal alone is liable
to pay the costs of maintenance of the animals
while in custody of pinjarapole ?
Q-4 Whether the seizure of animal by the police in
non-cognizable case under the Act of 1960 and
other ancillary Acts, is legal ? What is its
effect on order for interim custody ?
Q-5 What criteria should be adopted by the Courts
while directing the interim custody of animal
seized for the offence under the Act of 1960 and
other ancillary Acts ?
Question-1 :
2.Mr M.M.Tirmizi, learned counsel appearing for the
owners of the animal submits that panjarapole has no
locus to either apply for the interim custody of the
animal or to approach to the Higher Courts in that
regard. In the Criminal Proceedings for the offences
under the said Act of 1960, the concerned parties are
only the owner or accused and the State. It is only u/s
35 of the Act of 1960, the concerned Magistrate may
direct to send the animal to pinjarapole. This in itself
would not give power to pinjarapole to ask for the
custody.
3.Learned counsel relies on an unreported decision
of this Court rendered in Special Criminal Application
No.804 of 1985 on 30/10/1985, wherein this Court (Coram :
M.B.Shah, J., as His Lordships then was) said, 'In my
view, as such respondent No.2 has no locus stand in the
matter because possession of the animals was handed over
to panjarapole only as a custodian.' It may be stated
that in the said case, the panjarapole was the respondent
No.2. He has also referred to the order dated 2/9/1996
of the Supreme Court in Special Leave to Appeal
No.2349/96 wherein the apex Court rejected the appeal of
pinjarapole saying that :
"The petitioner is unconnected with the merits of
the case. He is thus not aggrieved by change of
custody of the case property. Special leave
petition is dismissed."
It is thus submitted by Mr. Tirmizi that panjarapole is
only a custodian and as observed by the Supreme Court, it
has nothing to do with the merits of the case and thus,
cannot be said to be an aggrieved party. In view of
this, the panjarapole cannot have any locus in the matter
of interim custody of the animal with respect to the
offence under the Act of 1960.
4.On the other hand, Mr.N.S.Sheth, learned counsel
appearing for the panjarapole contended that the
panjarapole being interested in the welfare and
protection of the animal, has a right to approach to the
Court and ask for the custody. Learned counsel has
placed reliance on the order of the Supreme Court dated
9/9/96 passed in Special Leave to appeal (Cr.)
(Bharatbhai Kothari vs. Jabbar Mohd. Ramzan and
others). In the said Special Leave Application preferred
by the panjarapole, the Supreme Court while refusing to
interfere with the order of the High Court, added further
condition and directed the learned Magistrate to ensure
proper maintenance of the animal by appointing a Special
Officer from amongst the learned counsel appearing and
practising in that Court to ascertain the proper keeping
of the animal every month and furnish the statement in
that regard. On the strength of the said order, it is
contended by Mr. Sheth that the said condition was added
on a petition filed by the panjarapole and as such, the
apex Court accepted the locus of the panjarapole.
5.The aforesaid cases cited before me, of this
Court and the apex Court, in my view, cannot be taken as
precedent. Taking the first unreported case of this
Court viz. Special Criminal Application No.804 of 1985,
it appears that, after the petition was rejected, a
prayer was made by the counsel for the panjarapole for
Leave to Appeal to the Supreme Court. While considering
the said prayer, the Court observed that the respondent
No.2 has no locus. The Court had no occasion to examine
the question in depth and detail. Similarly, the apex
Court in both the cases referred to above, has not
examined the question of locus of panjarapole. In the
first order dated 2/9/96, the Court has said that the
petitioner i.e. panjarapole is unconnected with the
merits of the case and thus, cannot be said to be
aggrieved by the change of custody. In another order
dated 9/9/96, the apex Court on a petition filed by the
Pinjarapole, while refusing to interfere with the order
of High Court, added certain conditions for the welfare
of the animal. It will not be out of place to say that a
decision to be law under Article 141 must not be a mere
conclusion by which the case is disposed of. Because, a
conclusion, mere conclusion, may be on facts, it may not
be and does not necessarily involve consideration of law
It is well settled that Article 141 will not be attracted
if law is not declared or stated vocally to support the
conclusion reached for deciding the lis. A mute
declaration of the mere conclusion is not contemplated
under Article 141. Thus, in my view, none of the cases
referred to above can be of any assistance to the
controversy before me.
6.To get the key of the question raised, it would
be convenient to briefly acquaint with the relevant
provisions of the Act of 1960. It has been enacted to
prevent the infliction of unnecessary pain or sufferings
of animals. Panjarapole has not been defined under the
Act of 1960. However, section-9 of the Act, cast a duty
on the Animal Welfare Board to encourage by granting of
financial assistance or otherwise, the formation or
establishment of panjarapole, rescue homes, animal
shelters, sanctuaries where animals and birds find
shelter when they become old and useless or when they
need protection. Section-35 empowers the Magistrate to
direct that the animal seized in connection with the
offence under the Act, may be sent to panjarapole.
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.
Question-2 :
8.It is contended by Mr.N.S.Sheth, learned counsel
appearing for the panjarapole that, giving custody of
animal to a panjarapole is mandatory. He relies on
section 35 of the Act of 1960. Sub-section (1) of
section 35 cast a duty on the State Government to appoint
infirmaries for the treatment and care of the animals in
respect of which offence against the Act have been
committed and may also authorise the detention therein of
any animal pending its production before the Magistrate.
Sub-section (2) talks of infirmary and panjarapole. It
empowers a Magistrate to direct that the animal concerned
be sent for treatment and care to infirmary. The animal
can be kept in infirmary until they become fit to perform
its usual work or otherwise fit for discharge. Thus, as
per the Scheme, if the animal is sick or infirm, it may
be sent to infirmary and be kept there until it becomes
fit to perform its usual work. The infirmary is a place
for treatment of sick or injured animal. It is thus
different from panjarapole. If the condition of the
animal is not as such which requires to be sent to the
infirmary, then they can be sent to the panjarapole.
9.Learned counsel has much emphasized on the word
'shall' used in section-35 when it speaks that "it shall
be sent to panjarapole". Prima facie, the use of word
"shall" may indicate that the provision is mandatory, but
such an inference is rebuttable by other considerations.
There are several cases where the word "shall" has been
construed as merely directory. Though the Act of 1960
has referred to institution of pinjarapole, the Act does
not provide its functions and consequences of ill
functioning of pinjarapole. Thus, the provision on face
cannot be said to be imperative, just because, the
statute has used the word "shall".
10.Mr Tirmizi, learned counsel has brought to my
notice some of the unreported decisions of this Court
which speaks about the functioning of the panjarapole.
In Special Criminal Application No.804/85 decided
on 30/10/1985, 200 sheep and goats were handed over to
panjarapole by the order of the learned Magistrate. The
said order was challenged by the owner of the animal.
During the pendency of the petition before the High
Court, a Criminal Misc. Application was filed stating
that 125 animals have died in the custody of the
panjarapole. This fact was not disputed by the learned
counsel for the panjarapole. The Court, considering the
various factors said that there is no reason to deprive
the petitioner of possession of animals belonging to him,
more particularly when the petitioner is prepared to
furnish necessary bonds for the production of the said
animals at the time of trial.
In Criminal Revision Application No.385/94
decided on 18/10/94, it was brought to the notice of the
Court that, out of 150 animal, more than 100 animals died
while they were with the panjarapole. The Court,
considering the fact, directed that the remaining live
stock be handed over to the owner of the animal.
In Criminal Revision Application No.111/96
decided on 17/04/96, this Court (Coram : S.D.Dave, J.)
noticed alarming averments made at para-13 of the said
application, saying that, in C.R. No.92/95 and No.93/95
registered at Deesa rural police station, the live stock
numbering 1366 were taken in their custody by the police
and later on, they were sent to the very same
panjarapole, but ultimately, it was reported by the said
panjarapole that, all the above said livestock have died.
S.D.Dave, J. narrated his experience in this regard as
follows :
"During this month, I have come across certain
petitions being filed by the accused persons
saying that, a large number of livestock which
were either handed over to the custody of Rajpur
- Deesa Panjarapole or to the concerned police
have ultimately come before the Court with the
case that, thousands of animals do not exist and
they have died. Such petitions are pending
before me and during the preliminary debate, I
was not able to satisfy myself that this could
have been legitimately happened. In the instant
case also, they have expressed such a fear."
S.D.Dave, J. reading the provision of section 29
and 35(2) of the Act of 1960, expressed that livestock is
generally to be restored to the custody of panjarapole.
However, looking to the facts that, large number of
cattle have died, indicates that there is no proper care
in respect of their up-keeping in the panjarapole and as
such, cattle should not be restored to the custody of
panjarapole till the entire picture is clear.
An apprehension was also expressed by the owners
of the animal in Special Criminal Application No.477/96
that the authorities of panjarapole would sell all the
animals and allow them to be killed for their monetary
benefits. It was submitted that the cruelty to the
animal would be through the medium of panjarapole
authorities. Considering the facts of the case,
M.S.Parikh, J. setting aside the order of custody to the
panjarapole, directed interim custody of the remaining
live goats and sheep to be handed over to the owner of
the animal on the conditions set out in the said order.
The Court also gave liberty to the owner of the animal to
take appropriate legal remedy against the concerned
responsible persons for such loss of goats and sheep at
an appropriate point of time.
M.P.Thakkar, J. (as His Lordships then was), in
Criminal Revision Application No.552/73 decided on
10/4/74, observed that, in normal circumstances,
panjarapole should have been a proper institution for
handing over the sheep and goats for interim custody, but
in the peculiar facts of the case, His Lordships declined
to give the custody to the panjarapole. His Lordships
observed that the Courts in secular democratic state
cannot be guided by emotions or sentiments.
11.It is next contended by Mr Sheth that the interim
custody cannot be given to the accused and/or owner of
the animal, as on conviction, in view of section-29, the
animal with respect to which offence is committed is
liable to be forfeitted to the Government. To appreciate
the contention, section-29 may be read, as follows :
Section-29 :: Power of Court to deprive person convicted
of ownership of animal :
(1) If the owner of any animal is found guilty of any
offence under this Act, the Court, upon his
conviction thereof, may, if it thinks fit, in
addition to any other punishment, make an order
that the animal with respect to which the offence
was committed shall be forfeited to Government
and may, further, make such order as to the
disposal of the animal as it thinks fit under the
circumstances.
(2) No order under sub-section (1) shall be made
unless it is shown by evidence as to a previous
conviction under this Act or as to the character
of the owner or otherwise as to the treatment of
the animal that the animal, if left with the
owner, is likely to be exposed to further
cruelty.
(3)......
(4)......
(5)......
(6)......
12.The analysis of section 29 indicates that, while
sub-section (1) of section 29 empowers the Magistrate to
forfeit to the Government, the animal with respect to
which the offence has been committed, sub-section (2)
contemplates two situations. Firstly, there shall be no
order of forfeiture unless it is shown by evidence that
the accused is a previous convict under the Act or there
is an evidence to show that if the animal is left with
the owner, it is likely to be exposed to further cruelty.
Thus, in a case of first offence, there is no question of
forfeiture of animal unless there is enough material on
record to indicate that, if the animal is left with the
owner, it is likely to be exposed to further cruelty. It
may also be noticed that, looking to the nature of
offence under the Act of 1960, there may be hardly any
necessity of the production of the animal in the Court
during trial for identification or for any other purpose.
Thus, a Court while considering the question of proper
custody pending enquiry or trial u/s 451 Cr.P.C., is to
keep in view, that because of the pendency of enquiry or
trial, the owner of the muddamal is not deprived of the
possession which may cause loss in his business, unless
there are compelling reasons to deprive him, on the
ground that, during the trial, presence of the said
muddamal is "must" and further, presence cannot be
secured even by imposing a suitable condition or there
are strong ground to form an opinion that the muddamal is
likely to be forfeited at the conclusion of the trial or
in case of animal, the custody to owner shall not be in
the welfare of the animal, even by imposing suitable
condition. Thus, my answer to second question is that,
section 35(2) does not cast any duty on the Court to give
custody of the animal to pinjarapole, as a rule.
Question-3 :
13.It is contended by Mr Tirmizi, learned counsel
for the owner of the animal that the necessary expenses
for up-keeping the animal should be either born by the
panjarapole or the State as the custody is given to the
panjarapole at their instance. It is required to be
noted that, under the Act of 1960, Animal Welfare Board
is to be established for the protection of the animal,
welfare and for the purpose of protecting animal from
being subjected to unnecessary pain or suffering in
particular. Section 9 of the Act enumerates the function
of the Board. Sub-clause (e) provides that the Board
shall encourage by grant of financial assistance or
otherwise the formation or establishment of panjarapole,
rescue homes, animal shelters etc. Sub-clause (i)
provides that the Board shall give financial and other
assistance to Animal Welfare Organisation functioning in
a local area or to encourage the formation of the animal
welfare organisations in any local areas which shall work
under the general supervision and guidance of the Board.
Section 8 of the Act provides that the funds of the Board
shall consist of grants made to it from time to time by
the Government and of the contributions, donations,
subscriptions, bequest, gifts and the like made to it by
any local authority or by any other person. The scheme
therefore indicates that there are resources to fund the
pajarapole, for maintenance of the animal, and thereby to
achive the object of the Act.
14.A Division Bench of the Bombay High Court in an
unreported case Criminal Writ Petition No.917/93 (Goshala
Panjrapol Sanstha vs. Mohd. Kalimkhan and another)
decided on 16/09/1993, held that it is the prosecution
who lodges the complaint against the accused and desires
the owner of the animal during the enquiry should make
the payment for the maintenance of the animal. At this
juncture, it may be noticed that sub-section (3) of
section 35 provides that, an animal sent for care and
treatment to an infirmary shall not, unless the
magistrate directs that it shall be sent to a Panjrapole
or that it shall be destroyed, be released from such
place except upon a certificate of its fitness, for
discharge issued by the veterinary officer in charge of
the area in which the infirmary is situated or such other
veterinary officer as may be authorised in this behalf by
rules made under this Act. Sub-sections (4) and (5)
provides that the costs of transporting and its
maintenance and treatment in the infirmary shall be
payable by the owner of the animal. Thus, the Act
directs for payment of maintenance of the animal only in
a case where the animal is kept in infirmary for the
treatment. Except this, there is no provision under the
Act of 1960 or Code of Criminal Procedure which provides
that the accused should be called upon to make payment
for the maintenance of the animal during investigation,
enquiry or trial. The financial sources are provided
under the Act, if pinjarapole wish to maintain the
animals. Thus, if the State or Pinjarapole, whosoever
ask for custody, it is their duty to maintain and they
cannot ask for costs of maintenance to be paid by the
accused or the owner of the animal. The question is
decided accordingly.
Question-4 :
15.It is contended by Mr Tirmizi, learned counsel
that the entire proceedings under the Act of 1960 right
from the seizure of the animal and the order of the
concerned Court, directing the interim custody, is
illegal and without jurisdiction inasmuch as the offence
under the Act of 1960 or under the Bombay Police Act or
under the Motor Vehicles Act are noncognizable and hence,
seizure of animal by police is illegal and without
authority of law. Learned counsel has invited my
attention to section 31 of the Act of 1960, which reads
as follows :
Section-31 : Cognizability of offences :
"Notwithstanding anything contained in the Code
of Criminal Procedure, 1898, an offence
punishable under clause (i), clause (n) or clause
(o) or sub-section (1) of section 11 or under
section 12 shall be cognizable offence within the
meaning of that Code."
Thus, according to section 31, all the offences except
punishable under clause (i), (n) or (o) of sub-section
(1) of Section 11 or under section 12 are non-cognizable
offences within the meaning of the Code of Criminal
Procedure. In all the cases in hand, the offences are
under section 11(i) (d) and (e) of the Act of 1960 and
thus, admittedly they are noncognizable offences.
16.It is contended by Mr Tirmizi, learned counsel
that, the offences being non-cognizable, the police has
no power to investigate the case except with the order of
the Magistrate having power to try such case or conduct
the cases for trial as provided u/s 155(2) of the Cr.P.C.
17.On the other hand, Mr N.S.Sheth, learned counsel
submits that irrespective of the fact that the offence is
non-cognizable, section 32 of the Act empowers the police
officer not below the rank of sub-inspector or any person
authorised by the State Government in this behalf who has
reason to believe that an offence under clause (l) of
sub-section (1) of section 11, has been committed.
18.Though at the first instance, the contention
raised by Mr.Tirmizi appears to be attractive, in my
view, it has no substance. Section 102 of the Cr.P.C.
empowers the police officer to seize any property which
may be alleged or suspected to have been stolen or which
may be found under the circumstances which create
suspicion of the commission of an offence. Section-102
reads as follows :
Section-102 :
Power of police officer to seize certain property.
(1) Any police officer may seize any property which
may be alleged or circumstances which create
suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the
officer in charge of a police station, shall
forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section (1)
shall forthwith report the seizure to the
Magistrate having jurisdiction and where the
property seized is such that it cannot be
conveniently transported to the court, he may
give custody thereof to any person on his
executing a bond undertaking to produce the
property before the court as and when required
and to give effect to the further orders of the
court as to the disposal of the same.
The word 'any offence' employed u/s 102 shows
unmistakably that even though there may be commission of
noncognizable offence, the police may seize any property
found under the suspicious circumstances. Sub-section
(2) of section 102 provides that, such officer,
subordinate to the officer in charge of the police
station, shall forthwith report the seizure to that
officer. Sub-clause (3) provides that, every police
officer acting under sub-clause (1) shall forthwith
report the seizure to the Magistrate having the
jurisdiction. Thus, the police officer has a power to
seize animal on suspicion of commission of an offence
committed under the Act of 1960 or under the other
ancillary provisions, irrespective of the fact that they
are noncognizable offences. On such seizure, the police
officer is required to forthwith report to the Magistrate
having the jurisdiction. The Court is required to pass
an appropriate order with respect to the custody of the
animal under the provisions of section 451 of the Cr.P.C.
Thus, in my view, irrespective of the fact that, except
offences under clause (i) (n) or (o) of sub-section (1)
of section 11 or 12 of the Act of 1960, rest of the
offences are noncognizable, the police has a power to
seize the animal under section 102 of the Cr.P.C. and
the Magistrate will be competent to pass an order u/s 451
of the Cr.P.C.
Question-5 :
19.Having held that, as a rule, the custody of the
animal is not to be given to the panjarapole, it will be
for the Court concerned to exercise judicial discretion
for the custody of the animal. Though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or
rigid formula, the Court, while considering the question
of custody should take into consideration and bear in
mind the following criteria :-
(A) The prime consideration of the Court should be
for the preservation of livestock and elimination
of chances of further cruelty to livestock.
(B) The Court should not be unnecessarily guided by
emotions and sentiments.
(C) If it is a first offence, unless there are strong
reasons to believe that if the custody of animal
is given to accused or owner, the animal will be
further exposed to cruelty, the custody should be
given to owner or the person from whose
possession possession the animal is taken, on
just conditions.
(D) Looking to the nature of trial, unless presence
of the animal for identification or other purpose
is required, the custody should be given to the
owner or person from whose custody the animal is
taken, on just conditions.
(E) In case the animal or animals are likely to be
forfeited to Government at the conclusion of the
trial or their presence is necessary during
trial, whether the object can be achieved by
imposing appropriate conditions ?
(F) In case, it is considered necessary to give
custody to pinjarapole, following steps shall be
taken :
(i) Reputation of Pinjarapole concerned be
ascertained with respect to maintenance
of animal.
(ii) Undertaking be obtained from Authorities
of Pinjarapole that they will maintain
and take proper care of the health of
animal and further, they will not claim
costs for maintenance of animal from
accused or owner of the animal.
(iii) They will not sell or transfer the animal
and they will produce the animal as and
when they are directed to do so.
(iv) If they fail to produce animal at the
conclusion of trial and if the Court so
directs, they will pay the compensation
for the loss of each animal.
(G) Keeping in view Animal as a muddamal, all efforts
should be made to complete the trial
expeditiously.
Bearing in mind the aforesaid principles, I shall deal
with each Applications.
Criminal Revision Application No.24 of 1996 :
20.This Criminal Revision Application by panjrapole
- Deodar is directed against the order of the learned
Additional Sessions Judge, Banaskantha, at Palanpur dated
12/01/1996 below exh.10 in Criminal Revision Application
No.131/95, whereby the learned Judge set aside the order
of the learned J.M.F.C. - Sihori dated 21/11/1995 and
directed the interim custody with the owner of the animal
on the conditions set out therein.
21.It is contended by Mr.N.S.Sheth, learned counsel
for the panjarapole that the learned Additional Sessions
Judge has committed error in overlooking the fact that
300 cattle were being transported in one truck which
itself speaks cruelty to animal on part of the owner. It
is submitted by the learned counsel that the learned
Additional Sessions Judge did not properly appreciate the
ratio laiddown by this Court in Special Criminal
Application No.804/85 decided on 30/10/1985.
22.I have gone through the impugned order. The
learned Judge found that the learned Magistrate was
swayed by the fact that the animals were taken for
slaughtering purpose, without there being any foundation.
In the opinion of learned Judge, animal could be
protected by imposing appropriate condition. Considering
the fact that it is the first offence and there is no
allegation that if the animal is left with the owner,
there is likelihood of further cruelty, in my view, the
order of the learned Additional Sessions Judge, does not
call for any interference. The conditions set out in the
impugned order sufficiently safeguards the welfare of the
animal.
23.In view of the aforesaid, I find no merits in
this Criminal Revision Application and the same is
accordingly rejected.
CRIMINAL REVISION APPLICATION NO. 225/1996 & 226/1996 :
24.The petitioner Chunilal Nagaji, Manager, Dhanera
Panjarapole has preferred these two Applications.
25.The facts giving rise to these Applications are
that, 230 cattle (sheep and goats) were found being
transported on 21/3/1996 in truck No. GJ-1-X-3986 from
Dhori Muna to Bombay. The truck was being driven by
driver Rahimkhan Muradkhan. The said truck was detained
near village Samarvada and criminal complaint being
Cr.R.No. II 32/1996 was filed by one Bhikhabhai under
the provisions of Prevention of Cruelty to Animal Act,
1960 as well as under the provisions of Bombay Police
Act, as well as under Rule 65 to 75 of the Gujarat
Diseases of Animals Control Act, 1963. On 22/02/96,
Dhanera police seized the vehicle alongwith the cattle.
The cattle were given in the custody of panjarapole on
the same day. On 4/4/1996, on an application filed u/s
451 and 457 of the Cr.P.C the learned J.M.F.C. Dhanera,
after issuing notices to the Dhanera panjarapole,
directed to release the muddamal to the owner of the
animal by order dated 15/4/96. The said order dated
15/4/96 has been challenged by the Dhanera panjarapole by
way of Criminal Revision which has been registered as
Criminal Revision Application No. 226/1996. Against the
same order dated 15/4/1996, the accused persons also
preferred a Revision, aggrieved of certain conditions
imposed, which was registered as Criminal Revision
Application No.48/1996. The learned Additional Sessions
Judge, by his order dated 25/6/96, has modified the order
and set aside those conditions. The Criminal revision
Application No.225/96 has been preferred against the said
order.
26.Taking up Criminal Revision Application
No.226/1996, the contention of the petitioner is that, as
a rule, the learned Magistrate ought to have given the
custody of the animal to the panjarapole keeping in view
the provisions of section 35(2) of the Act of 1960. As I
have held that sub-section (2) of section 35 does not
give a command that , as a rule, the custody should be
given to the panjarapole, I find no justified ground to
interfere with the impugned order of the learned
Magistrate, Dhanera.
27.In view of the aforesaid, I find no merits in
this Criminal Revision Application No.226/1996 and the
same is accordingly rejected.
28.So far as the Criminal Revision Application
No.225/96 is concerned, the condition imposed by the
learned Magistrate were found to be harsh and as such,
learned Additional Sessions Judge has rightly interfered
with the order. In view of this, I am not inclined to
interfere with the just order passed by the learned
Additional Sessions Judge. The contention with respect
to the maintainability of revision at the instance of
pinjarapole has been answered by me, as such it is
decided accordingly.
29.In view of this, there is no merit in this
Criminal Revision Application and the same is accordingly
rejected.
CRIMINAL REVISION APPLICATION NO.408/1992, 2/1993 AND
3/1993 :
30.One Geetaben B. Shah, Inspector,(on her death,
now substituted by Bachubhai Rambhai), Akhil Bharatiya
Hinsa Nivaran Sangh filed a complaint u/s 11(d) of the
Act of 1960 read with sections 5, 8 and 10 of the Bombay
Animal Preservation Act and section 4(c)(b) and 62 of the
Bombay Essential Commodities and Cattle (Control) Act,
1958 (Gujarat Amendment), 1983. She filed the said
complaint in her capacity as Inspector of Animal
Liberation Front. She stated that 13 animals were being
taken to the slaughter house for being slaughtered. They
were being transported in truck No.GPS 7144. The
application of the owner of animal for interim custody
was rejected by the order of the learned J.M.F.C.
Valbhipur dated 13/11/1992. The owner of the cattle
preferred a revision to the Court of the learned
Additional Sessions Judge, Bhavnagar and the same was
allowed by the order dated 30/11/92. The learned Judge,
on the conditions set out in the impugned order, directed
to release the custody of animal to its owner. Geetaben
approached to this Court by way of revision which has
been registered as Criminal Revision Application
No.408/92. The main contention raised in this Criminal
Revision Application is that panjarapole was not heard by
the learned Additional Sessions Judge.
31.While said petition was pending before this
Court, the owner of the animal filed another Criminal
Revision Application before the learned Additional
Sessions Judge, after impleading the complainant as a
party. The said Revision Application was registered as
Cr.R.A. No. 101/92 which was allowed by the order of
the learned Additional Sessions Judge and a direction was
given that the accused shall pay Rs. 10/- per animal per
day towards the costs of maintenance of the animal. The
present two Revisions have been filed against the said
order, which have been registered as Criminal Revision
Application No.2/93 and 3/93.
32.The contention raised in Criminal Revision
Application No.2/93 and No.3/93 is that, in view of the
fact that, one Revision Application filed by the
petitioner was disposed of by the learned Sessions Judge,
the second revision before the same Court was not
maintainable. In my view, there is substance in the
contention raised by the petitioner. The learned
Additional Sessions Judge ought not to have entertained
the Criminal Revision Application No.101/92 having
entertained and decided the Criminal Revision Application
No.90/92 filed by the same party against the same order.
In view of this, both the Criminal Revision Applications
No.2/93 and 3/93 deserves to be allowed and the impugned
order of the learned Additional Sessions Judge, Bhavnagar
dated 31/12/1992 deserves to be quashed and set aside.
33.In view of the aforesaid, Criminal Revision
Application No.2/93 and 3/93 are allowed. The impugned
order of the learned Additional Sessions Judge, Bhavnagar
dated 31/12/1992 is quashed and set aside.
34.So far as the Criminal Revision Application
No.408/92 is concerned, the grievance of the petitioner
panjarapole is that the Revision Application has been
decided by the order of the learned Additional Sessions
Judge without hearing them. There is substance in the
contention raised by the petitioner.
35.In view of this, Criminal Revision Application
No.408/92 is allowed and the order of the learned
Additional Sessions Judge, Bhavnagar dated 30/11/1992 is
quashed and set aside. It is directed that the learned
Judge shall pass afresh order, after hearing all the
concerned parties, and decide the same in the light of
the law laid down by this Court.
SPECIAL CRIMINAL APPLICATION NO.1431/96 :
36.At Deodar police station, on 27/3/96, a criminal
complaint being Cr.R. No. II-79/96 was registered
against the owner of the truck No.GJ-8-T-4414. It was
found that, on 20th June 1996, in the night hours,218
sheep and goats were being carried in the said truck, on
which a case was registered. Out of 218 animals, three
had died during transit and accordingly 215 goats/sheep
were seized by the police. The petitioner made an
application before the learned Magistrate for interim
custody, which was rejected. The learned Magistrate
directed that the cattle be handed over to the custody of
panjarapole. Against the said order of the learned
Magistrate dated 27/6/96, the petitioner preferred a
Revision Application, which was rejected by the order of
the learned Additional Sessions Judge, Banaskantha, at
Palanpur dated 20/8/1996.
37.A preliminary objection has been raised by
Mr.N.S.Sheth, learned counsel for the panjarapole, with
respect to the maintainability of the present Criminal
Revision Application on the ground that the petitioner
has sought to invoke the inherent powers of this Court
under Article 226 and 227 of the Constitution of India
with a view to circumvent the provisions of section
397(3) Cr.P.C which prohibits, second revision.
38.Mr.M.M.Tirmizi, learned counsel submits that the
orders of both the Courts below are wholly without
jurisdiction, for the reason that the entire complaint
deserves to be quashed and set aside, as it does not
disclose a cognizable offence justifying the
investigation by the police officer u/s 156(1) of the
Cr.P.C. He further submits that the police has not
obtained any permission from the Magistrate in accordance
with the provision of section 155 (2) of the Cr.P.C.
39.I have considered this contention and it is found
that the police has a power u/s 102 of the Cr.P.C. to
seize the property if he suspects that some offence has
been committed in respect of the said property. It makes
no difference whether the offence is cognizable or
noncognizable. In view of this, the contention is not
sustainable and the same deserves to be rejected.
40.It is next contended by Mr.Tirmizi that the
petitioner is not a previous convict and there is no
material on record to indicate that if the custody of the
animal is allowed to be with the petitioner, it is likely
to be exposed to further cruelty. In my view, this
aspect goes to the route of the case. Therefore, in
order to meet the ends of justice, it is expedient that
the matter is reheard by the learned Magistrate.
41.In view of this, this Special Criminal
Application is allowed and the order of the learned
J.M.F.C. - Deodar dated 27/6/96 and the order of the
learned Additional Sessions Judge, Banaskantha, at
Palanpur dated 20/8/96 are quashed and set aside. The
learned Additional Sessions Judge is directed to rehear
the Revision Application and decide afresh in the light
of the law laid down by this Court.
::: O R D E R :::
42.In view of the aforesaid, following order is made:-
(A) Criminal Revision Application No.225/96 and No.226/96 are rejected. Rule discharged.
(B) Criminal Revision Application No.408/92 is allowed and the impugned order of the learned Additional Sessions Judge, Bhavnagar dated 30/11/1992 is quashed and set aside. It is directed that the learned Magistrate shall pass afresh order after hearing all concerned and decide the same in light of the law laid down by this Court. Rule made absolute to the aforesaid extent.
(C) Criminal Revision Application No.2/93 and No.3/93 are allowed and the impugned order of the learned Additional Sessions Judge, Bhavnagar dated 31/12/1992 is quashed and set aside. Rule made absolute to the aforesaid extent.
(D) Special Criminal Application No.1431/96 is allowed and the impugned order of the learned J.M.F.C. - Deodar dated 27/06/1996 and the order of the learned Additional Sessions Judge, Banaskantha, at Palanpur dated 20/08/1996 are quashed and set aside. The learned Additional Sessions Judge is directed to rehear the Revision Application and decide the same afresh in light of the law laid down by this Court. Rule made absolute to the aforesaid extent.
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