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6. The main grounds urged in the petition is that the case is registered under Section 11 of the PCA Act on the allegation that the animals that are subjected to cruelty cannot remain in the custody of the owner of such animal, pending investigation. It is the further contention that as per Rules 3 and 4 of the PCA Rules, 2017, the accused cannot retain custody of animals that are subjected to cruelty, pending litigation. The Apex Court in the unreported judgment in the case of STATE OF UTTAR PRADESH v. MUSTAKEEM passed in Crl.A.Nos.283- 87/2002 dated 22.02.2002 has held that the allegation in the FIR was that the animals were transported for being slaughtered and were tied very tightly to each other. The criminal case is pending. It is observed that it is shocked as to how such an order could be passed by the learned Judge of the High Court in view of the very allegations and in view of the charges, which the accused may face in the criminal trial and set aside the order and directed that these animals be kept in the Goshala.

13. The learned counsel referring these judgments would contend that giving the animals to the custody of a person who has not treated them properly and not taken care, amounts to handing over the animals to the custody of the wrong person and hence the impugned order is liable to be set aside.

14. The learned counsel for respondent No.2 would vehemently contend that the police have given illegal custody of the dogs which are owned by respondent No.2. The offences under Section 428 of IPC and Section 11 of PCA Act does not attract. It is also his contention that one of the dogs died when the custody was given to the petitioner and the same is not reported to the Court. The post mortem report also discloses the reasons for cause of death. The dogs are stationed in different places. Section 11 of the PCA Act and Rules 3 and 4 of the PCA Rules, 2017 does not attract to cruelty. The investigation is not yet completed. Future custody in favour of the petitioner would cause loss to respondent No.2 and there are no grounds to set aside the order.

15. Having heard the learned counsel for the petitioner and the learned counsel for respondent No.2, this Court has to examine whether the learned Magistrate has not applied his mind while passing the order and committed an error in passing the impugned order.

16. Having perused the grounds urged in the petition and also the contention of the learned counsel for the petitioner and also respondent No.2, the paramount consideration of the case before this Court is in view of Rule 3 of the PCA Rules, 2017 and Section 11 of the PCA Act, this Court has to examine whether the order passed by the learned Magistrate is legally sustainable.

"Right to life

72. Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word "life"

has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, "life" means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity. Animals' well- being and welfare have been statutorily recognised under Sections 3 and 11 of the Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Sections 3 and 11 of the PCA Act read with Article 51-A(g) of the Constitution. Right to get food, shelter is also a guaranteed right under Sections 3 and 11 of the PCA Act and the Rules framed thereunder, especially when they are domesticated. The right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well. The right, not to be beaten, kicked, overridden, overloaded is also a right recognised by Section 11 read with Section 3 of the PCA Act. Animals also have a right against human beings not to be tortured and against infliction of unnecessary pain or suffering." x x x x x