Delhi District Court
Gaurav Gupta vs Irfaan on 3 November, 2014
IN THE COURT OF SH. DINESH BHATT, ASJ07 (CENTRAL)/ TIS
HAZARI COURTS, DELHI
Criminal Appeal No.:135/14
Unique ID no.:02401R0397032014
Gaurav Gupta
S/o Ashok Kumar Gupta
R/o 14 Ashoka Road,
New Delhi ..........Revisionist
Versus
1. Irfaan
S/o Noor Hassan
R/o Railway Road, Khandhla
Distt. Shamli, UP
2. Aarif
S/o Ijhaar
R/o Mohalla Kanojaan,
Muzzafar Nagar, UP
3. Firoj
S/o Naafij
R/o Mohalla Maulana Azad,
Distt. Shamli, UP
4. Naseem Ganj
S/o Umar Ganj,
R/o Railway Road, Khandhla
Distt. Shamli, UP
CA no. 135/14 1/9
5. Rajender
S/o Sh. Sita Ram
R/o Village Sakoti, PO Pilana
Distt. Meerut (UP)
6. Sh. Sube Singh
S/o Sh. Ram Chander
R/o Village Sakoti, PO Pilana
Distt. Meerut (UP)
7. Sh. Shantu Singh
S/o Sh. Jay Singh
R/o VPO Khata,
Distt. Meerut (UP)
8. Sh. Pappu Ram
S/o Sh. Asha Ram
R/o VPO Panchali,
Distt. Meerut (UP)
9. Sh. Amit
Sh. Jagna Singh
R/o VPO Panchali
Distt. Meerut UP
10. Sh. Nawab
S/o Sh. Wahid
R/o VPO NaglaHerrauu
Distt. Meerut UP
11. Sh. Sanath
S/o Sh. Sukkam
CA no. 135/14 2/9
R/o VillageSakoti,
Distt. Meerut (UP)
12. Sh. Vinod
S/o Sh. Raman Singh
R/o VPO, Nagla Herrau
Distt. Meerut (UP)
13. Sh. Saud
S/o Manfuzz Ali
R/o VPO, Nagla Herrau
Distt. Meerut (UP)
14. Sh. Kallu
S/o Manfuzz Ali
R/o VPO, Nagla Herrau
Distt. Meerut (UP)
15. Shabbir
S/o Sh. Sardar
R/o VPO, Rasulpur Sardhana
Distt. Meerut (UP)
16. Sh. Akleem
S/o Sh. Kale
R/o VPO, Nagla Herrau
Distt. Meerut (UP)
17. Vijender
S/o Sh. Ram Chander
R/o VPO, Nagla Herrau
Distt. Meerut (UP)
CA no. 135/14 3/9
18. Sh. Jakir
R/o VPO Kasba, Phalawada
Distt. Meerut (UP)
19. State(Govt. Of NCT of Delhi)
Through SHO Bara Hindu Rao Delhi ..........Respondents
Date of Institution : 12/08/2014
Date on which order was reserved : 20/10/2014
Date of Decision : 03/11/2014
O R D E R:
1. This is revision petition against order dated 08/08/13 whereby 18 applications for release of Oxen on superdari has been allowed by the Ld. Trial Court.
2. As per allegations 62 oxen were recovered by the police when they were being transported in a cruel manner for slaughtering. 2 oxen died during transportation and thereby offence U/s 11(1) Prevention of Cruelty against Animal Act and Section 5 and 12 of Delhi Agricultural Cattle Preservation Act 1994 was committed.
3. Charge sheet was filed but the ld. Trial court found that cognizance against 04 persons i.e. drivers of the Trucks in question only under section 11(1) Prevention of Cruelty against Animal Act could be taken. Applicants are the owners of the oxen in question and had moved various application for release of oxen which were dismissed and lastly dismissed for want of identification number of the oxen. Revision was preferred against the same which was allowed and the matter was remanded for deciding a fresh after allowing opportunity to the applicant. Thereafter, application was allowed which was again challenged in revision. The same vide order dated 24/05/2014 was again setaside with CA no. 135/14 4/9 directions to the Trial Court to decide a fresh after due consideration of facts and documents. The Ld. Trial Court has now vide present impugned order allowed the application for release of the oxen on superdari.
4. The present revision has been filed mainly on the ground (1) that the Ld. Trial Court failed to appreciate that the oxen were being taken for slaughtering and therefore discretion should have been exercised for furtherance of the Prevention of cattle. (2) There was no permanent identification mark on the cattle so as to enable IO and superdar to identify them and only temporary mark with the help of paint had been used which had been washed away. (3) The Safed Chitti(receipt) was not authentic proof of ownership of the oxen. (4) The Ld. Trial court failed to appreciate the mismanagement prevalent in the animal fair of Rajasthan. (5) The superdar had failed to identify their live stock or to show their ownership proof or transit permit. (6) The Ld. Trial Court erred in not retaining the cattle as Gosadan had a preferential right for interim custody of the animals. (7) The 5 factors laid down for release of Animals by the Hon'ble Apex Court had not been considered. (8) The Ld. Trial Court failed to consider that under the circumstances all the 28 owners, 12 helpers, 8 conductors and 4 drivers would have been the accused in the present case. The Ld. Trial Court also erred in directing the superdar owners to file affidavit stating that it was first offence or subsequent offence as the said affidavit could not be relied being filed by the accused persons. The order in question was against the law laid down by the Hon'ble Supreme Court and also against the procedure to be followed for transport identification and medical examination of the live stock.
5. As per FIR, in the night of 09/02/2014 four trucks packed with 64 cattle (Goavansh) were seized at the instance of SHO Bara Hindu Rao and FIR u/s 11(1 PC Act) r/w 429 IPC and section 5 and 12 of Delhi Agricultural Cattle Preservation Act 1994 had CA no. 135/14 5/9 been lodged. The said 64 animals were packed in four trucks driven by the four accused persons and were carrying 13, 19, 16 and 16 Oxen respectively. All the trucks had been covered by turpoline (Tirpal). On removing the said Tirpal the cattle were found to be packed(squeezed) with cruelty in the truck and mouth of all the oxen had been tied with the body of the truck. At the said time driver could not produce the permit. Consequently FIR had been lodged.
6. As per petitioner, four oxen were found dead and the oxen in question were being transported without any medical certificate, transit permit, identification mark and ownership documents to UP for purpose of slaughtering.
7. As per petitioner they have challenged the order of not charging the owners and the accused under other provisions of FIR in revision in a different court and prayed for impleading all the owners of the cattle as accused in the present case. Thus, as per record till date the applicants i.e. respondent no. 5 to 18 are not accused in the present case.
8. The main substance of the objections of the petitioner against the impugned order are that oxen could not be released to the applicants as they themselves were guilty of committing cruelty on the animals, the animals were being transported in a cruel manner for slaughtering, there was no proper identification mark on the oxen, there was no proper ownership documents and transit permit and medical examination of the oxen in question. It is also stated that four oxen had died due to suffocation and injury during transport proving cruelty committed by applicant on the animals in question.
9. As per the impugned order in question the owners/applicants had submitted Safed Chitti and permit for purchase and transportation of the oxen in question alongwith Khasra Khatauni of the applicants as farmers. The said documents were given to IO who had CA no. 135/14 6/9 filed verification report stating that the Safed Chitti, permit, medical record of the oxen from the concerned authority was found to be genuine and has also filed letter no.832 dated 18/02/2014 of joint director to this effect. IO also filed report alongwith photographs of the oxen with specific identification number from 1 to 62 written on the body of the oxen in yellow colour. During this period 2 oxen were further stated to have died. Therefore there were only 60 oxen left. 18 are stated to have already been released, but did not surrender even after the order was setaside.
10. IO has now, on 03/11/2014 filed further report before this Court stating that two more oxen had died as per information given by the Manager of Goshala. In respect of the identification request to Director Animal Husbandry has been sent. Thereafter, Doctor had asked Manager Goshala to write numbers on the head of the oxen with further photographs and health certificate of the oxen for purpose of identification. Both the said Doctor and the Manager had stated that the said identification was proper and would be compliance of the court orders in respect of identification. Further at the time of release the owner is required to identify his oxen and thereafter, photographs of the oxen with his owner is taken and maintained on record.
11. Thus, as per the latest position out of 64 oxen, 06 oxen in total had died. 13 have not been claimed by the owner. Thus, the present revision relates to release of 45 oxen only.
12. It appears from the FIR and the facts available on record, that the oxen in question were being transported in a cruel manner and had been squeezed in the Truck to the extent that 19 oxen were being carried in a vehicle authorized for carrying only 06 oxen. It is also on record that 06 oxen in total have died till today. 04 are stated to have died due to CA no. 135/14 7/9 cruelty of the accused and the owners during transportation of animals, while two have died when the oxen were in possession of the Manager of Goshala.
13. In the present background the fact whether owners would also be responsible for such cruelty of animals required consideration of the trial court. The question whether the Oxen were being transported for the purpose of slaughtering is also a matter of dispute. But as both the said matters were subjudice in a different revisional court and before the Ld. Trial Court therefore, this court is not required to express any opinion on the said subject. But for the present petition, the fact remains that till date applicants have not been charged with any offence. Thus, there would be no legal bar for the applicants, till they are impleaded as accused, to apply for release of the oxen if all other provisions for identification, transportation, care, etc. of the oxen is followed by the applicants. Since all the above said formalities relating to procedure of establishing ownership and identification have been considered and substantiated to the satisfaction of Ld. Trial Court. There is no infirmity in the order in question to the extent of release of the said 45 oxen. But the Ld. Trial Court has also observed in para 17 about waiving of the maintenance cost of oxen for the period from 14/03/2014 till 08/08/14. The same is not sustainable as the earlier order of release vide order dt. 24/05/2014 had been set aside by the Ld. Revisional Court.
14. It is also on record that the oxen in question were being transported in a cruel manner and 06 oxen have already died. Thus, some more specific directions in regard to maintenance of the oxen and ensuring their well being as well as establishing their identity are required. Thus, before release of the oxen, IO would require to maintain record in regard to identification of the released oxen and the owners would regularly file report with photographs in regard to health of the released oxen on two monthly basis with the Ld. Trial Court till the conclusion of the trial.
CA no. 135/14 8/9
15. Accordingly, the appeal is disposed off with modification of para 17 of the impugned order holding that maintenance cost till date of release of the oxen would be payable by the owners and all the above stated conditions in addition to condition as per impugned order for release would be followed by the applicants in question. Revision is accordingly, partly allowed. Impugned order modified to the above extent. Trial Court Record with copy of order be sent back. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 03/11/2014 ASJ/Delhi/03/11/2014
CA no. 135/14 9/9