Important Point
Under Section 35(2) of the Prevention of Cruelty to Animals Act, 1960, the Magistrate has discretion to handover interim custody of the animals to Pinjrapole but he is not bound to handover custody of animals to Pinjrapole in the event of not sending them to an infirmary.

Headnote:Prevention of Cruelty to Animals Act, 1960 - Section 35 -Treatment and care of animals-Criminal Procedure Code, 1973-Section 451-Competing claims of the owner of animals and the Pinjrapole for their custody when owner is facing prosecution-High Court declining to grant interim custody of the animals to appellants Pinjrapole-Whether contrary to Section 35 of Act? (No)-Appeals dismissed.
Held : In view of the above discussion and provisions of Section 451 Cr.P.C., it appears to us that unless the owner of the animal in respect of which he is facing prosecution, is deprived of the custody (which can be done only on his conviction under the Act for the second time), no bar can be inferred against him to claim interim custody of the animal. 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, 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 to be given by the Magistrate if in his discretion 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 bound 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 offences 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 paid 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. Dr. Singhvi represents that Pinjrapole is prepared to keep animals in custody without charging any money for their maintenance. In our view, that cannot be a correct criteria for giving custody of the animals to Pinjrapole particularly when the Court has to decide the competing claims of the owner and the Pinjrapole for their custody. For the aforementioned reasons, we find no merit in these appeals, they are accordingly dismissed but having regard to the facts and circumstances of the case without case. (Paras 9 to 12)

Judgment

Quadri, J.-Leave is granted.

2. These three appeals are filed by the Manager, Pinjrapole against the common judgment of the High Court of Gujarat dated April 8, 1997. The short question that arises for consideration in these appeals is: whether the order of the High Court declining to grant interim custody of the animals to the appellants is contrary to Section 35 of the Prevention of Cruelty to Animals Act, 1960.

3. The facts giving rise to this question may be noticed here. While the sheep and goats (hereinafter referred to as “animals”) were being transported, the Gujarat police seized them for the alleged violation of provisions of the Prevention of Cruelty to Animals Act, 1960 (for short, the Act), Bombay Police Act and Rules 65 to 75 of the Gujarat Diseases of Animals Control Rules, 1963. It is a common ground that the offences alleged are non-cognizable. The learned Judicial Magistrate, 1st Class, Dhanera, on their production before him, directed that the custody of the animals be handed over to Pinjrapole. Dissatisfied with the order of the learned Magistrate, the owners of animals filed Criminal Revision Application before the learned Additional Sessions Judge, Banaskantha at Palnapur, who allowed the Revision and directed that the custody of animals be given to the owners pending trial of the cases. The Pinjrapole carried the matter in Revision before the High Court of Gujarat. That Revision and two other cases were disposed of by the High Court by common order dated April 8, 1997, declining to interfere in the order passed by the learned Additional Sessions Judge. The correctness of that common order is assailed in these appeals.

4. Dr. A.M. Singhvi, the learned senior counsel appearing for the appellants, has argued that Section 35 of the Act, enjoins that in the event the Magistrate not sending animals to an infirmary he has to send them to Pinjrapole pending the trial of offences against the owner under the Act; that the order of the High Court confirming restoration of custody of the animals to the owners in preference to the appellant-Pinjrapole, which is a charitable institution and is only interested in the welfare of the animals, is violative of Section 35, illegal and unsustainable.

5. Mr. A.K. Ganguli, the learned senior counsel appearing for the respondents, has submitted that the High Court has properly construed Section 35 of the Act and after taking note of various instances of destruction of the animals and the standard of care taken in the Pinjrapoles, and that having regard to the welfare of animals as well as the interest of the owners, the High Court has rightly declined to interfere with the order of the learned Sessions Judge, so these appeals are liable to be dismissed.

6. For judging the merits of these contentions, it will be apt to notice the scheme of the Act in the light of the relevant provisions, thereof, Section 4 of the Act postulates establishment of Animal Welfare Board by the Central Government for the promotion of animal welfare generally and for the purpose of protecting animals for being subjected to unnecessary pain or suffering, in particular. The Board is a body corporate having perpetual succession and a common seal with power to acquire and dispose of property, subject to the provisions of the Act. Section 9 of the Act enumerates functions of the Board; clause (g) thereof contains the objective which reads: to encourage, by the grant of financial assistance or otherwise, the formation or establishment of pinjrapoles, resue homes, animal shelters, sanctuaries and the like where animals and birds may find a shelter when they have become old and useless or when they need protection. Section 11 enlists offences against the animals and prescribes penalty therefor; Section 12 prescribes penalty for specific offence of practising ‘phooka and doom dev’. Under Section 29 the Magistrate has power to deprive a person of the ownership or custody of an animal on his conviction of of

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1998 Supreme(SC) 894

Important PointUnder Section 35(2) of the Prevention of Cruelty to Animals Act, 1960, the Magis­trate has discretion to handover interim custody of the animals to Pinjra­pole but he is not bound to handover custody of animals to Pinjrapole in the event of not sending them to an infirmary.

Important Point
Under Section 35(2) of the Prevention of Cruelty to Animals Act, 1960, the Magistrate has discretion to handover interim custody of the animals to Pinjrapole but he is not bound to handover custody of animals to Pinjrapole in the event of not sending them to an infirmary.