A.F.R.
Court No. - 49
Case :- CRIMINAL REVISION No. - 3051 of 2018 Revisionist :- Ghanshyam Yadav Opposite Party :- State Of U.P.
Counsel for Revisionist :- Vinay Kumar Singh Chandel Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present criminal revision has been filed to quash the impugned order dated 14.08.2018 passed by the A.C.J.M., Court No. 1, Varanasi, pertaining to Case Crime No. 209 of 2018, under Sections- 279, 307 I.P.C. & Section 3/5A/8 of the Prevention of Cow Slaughter Act, 1955 and Section 11 of the Prevention of Cruelty to Animal Act, 1960, Police Station- Mirza Murad, District- Varanasi by which the learned Magistrate has rejected the applicant's application for release of the cattle in his favour.
3. The grievance of the applicant appears to be that the applicant is the only rightful owner of the animals and that he had not infringed the law. The animals have been seized on a mere misunderstanding or wrong allegation and their custody has been deprived to the applicant by misreading the provisions of Prevention of Cruelty to Animal Act, 1960 (hereinafter referred to as the Act) read with Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals Rules), 2017 (hereinafter referred to as the Rules).
4. Learned counsel for the applicant submits that neither there is any dispute as to the ownership claimed by the applicant nor there is any other claimant. In such circumstances, it has been submitted that the learned Magistrate has erred in rejecting the application filed by the applicant. He has also relied on a decision of the Supreme Court in the case of Manager, Pinjrapole, Deodar Vs. Chakaram Moraji Nat reported in 1998 (6) SCC 520.
5. Learned AGA on the other hand submits that in view of the mandatory provisions of the Act read with Rules, during pendency of the proceedings, the animals could not be released in favour of the applicant and they had to be necessarily retained in the custody of the Court.
6. Having considered the arguments so advanced by learned counsel for the parties, it appears that the Supreme Court in the case Manager, Pinjrapole, Deodar Vs. Chakaram Moraji Nat (supra) has observed as under:-
"10. Now adverting to the contention that under Section 35(2), in the event of the animal not being sent to infirmary, the Magistrate is bound to give the interim custody to Pinjrapole, we find it difficult to accede to it. We have noted above the options available to the Magistrate under Section 35(2) . That sub-section vests in the Magistrate the discretion to give interim custody of the animal to Pinjrapole. The material part of sub- section (shorn of other details) will read, the Magistrate may direct that the animal concerned shall be sent to a Pinjrapole. Sub-section (2) does not say that the Magistrate shall send the animals to Pinjrapole. It is thus evident that the expression "shall be sent" is part of the direction he decides to give interim custody to Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not count to hand over custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, Pinjrapole has no preferential right. In deciding whether the interim custody of the animal be given to the owner who is facing prosecution, or to the Pinjrapole, the following factors will be relevant:
(1) the nature and gravity of the offence alleged against the owner; (2) whether it is the first offence alleged or he has been found guilty of offences under the Act earlier; (3) if the owner is facing the first prosecution under the Act, the animal is not liable to be seized, so the owner will have a better claim for the custody of the animal during the prosecution; (4) the condition in which the animal was found at the time of inspection and seizure; (5) the possibility of the animal being again subjected to cruelty. There cannot be any doubt that establishment of Pinjrapole is with the laudable object of preventing unnecessary pain or suffering to animals and providing protection to them and birds. But it should also be seen, (a) whether the Pinjrapole is functioning as an independent organization or under the scheme of the Board and is answerable to the Board; and (b) whether the Pinjrapole has good record of taking care of the animals given under its custody. A perusal of the order of the High Court shows that the High court has taken relevant factors into consideration in coming to the conclusion that it is not a fit case to interfere in the order of the learned Additional Sessions Judge directing the State to hand over the custody of animals to the owner."
7. Also, while technicality, it does appear upon reading of Rule 3 and Rule 4 of the Rules that during pendency of the proceeding the animal that were allegedly subjected to cruelty cannot be released in favour of the petitioner who is the owner, however, Section 35 of the Act, the Prevention of Cruelty to Animals Act, 1960 does not appear to suggest that such animal have been prohibited from being released in favour of their owner. In fact separate proceeding under Section 29 are contemplated where under the Court may deprive the person convicted of his ownership rights over the animals. Such a power is to be exercised upon conviction of the accused and not at any earlier stage.
8. Then, under Section 35 (3) of the Act, any animal sent for care and treatment to an infirmary may be sent to the pinjrapole only upon direction of the learned Magistrate or it may be destroyed upon such direction or it may be released from such place, upon such direction with a further certification of its fitness for discharge issued by the veterinary officer. Undisputedly, the prosecution against the petitioner is continuing. Though, the charge sheet has been submitted, the proceedings in the case are not expected to be concluded at an early date. Therefore, the conviction, if at all, is a distant and unknown or uncertain event. The time that may be taken in conclusion of the proceeding is also not definite or known today.
9. In such circumstance, indefinite continuance of custody of the animal with the Court may itself be detrimental to the petitioner's rights over the animal. In fact, even if the petitioner were to be acquitted, he may still loose his rights over the animal during the currency of the proceeding as the animal may loose in value or even die in the meanwhile.
10. Thus, continued indefinite custody of the animal with the Court would serve no useful purpose.
11. Accordingly, the present criminal revision is allowed with the following observations:
(i) Before releasing the animals the learned Court below shall get identification marks placed on each animal through the concerned police station at the expense of the owner-revisionist and details of the same shall be kept on the record of the police station as well as of the Court. It is made clear that the identification marks shall be of the nature other than branding of the animals and may be in such a manner as may be permissible in law such as the insurance laws where in case insurance of animals the insurer places his identification mark.
(ii) In case of death of any animal the owner-revisionist shall intimate the police station concerned as well as the Court and shall dispose of the carcass, in accordance with law.
(iii) The animals/cattle shall be produced if and when required by the Court.
(iv) The owner-applicant should furnish adequate security other than cash and bank guarantee to the satisfaction of the learned Magistrate.
(v) The owner-applicant shall deposit a reasonable lump sum amount commensurate to the actual amount already spent upon the maintenance of the animals and this reasonable amount shall be determined by the learned Magistrate, in accordance with law.
12. In case of any default committed by the owner-applicant, it will be open for the concerned police station or the learned Magistrate to seize the animals and keep the same in the custody of the Court and take action in accordance with law.
13. It is further directed that if the learned Magistrate shall conclude the trial, preferably within a period of four months from the date he receives a copy of this order.
14. The revision thus stands allowed and the order dated 14.08.2018 passed by the A.C.J.M., Court No. 1, Varanasi, is hereby set aside.
Order Date :- 13.9.2018 Abhilash