Point of Law: animals’ well-being and welfare have been statutorily recognized under Section 3 and Section 11 of the PCA 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 Section 3 and Section 11 of the PCA Act read with Article 51-A(g) and (h) of the Constitution of India.

ORDER :

This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order dated 09.10.2020 passed in Crime No.181/2020 by the XXX ACMM, Bengaluru.

2. The factual matrix of the case is that one Sri Harish K.B., an Animal Welfare Activist, filed a compliant on 19.09.2020 to the Inspector, Puttenahalli Police Station, against the accused for the offences relating to animal cruelty and the said complaint came to be registered in Crime No.181/2020 for the offences punishable under Section 11 of the Prevention of Cruelty to Animals Act, 1960 (‘PCA Act’ for short) and also invoked Section 428 of IPC and the matter is pending before the learned Magistrate.

3. The sum and substance of the complaint against the accused who has been arraigned as respondent No.2 in this petition is that he is an unlicenced dog breeder, who is conducting commercial activity of dogs breeding. The respondent No.2 in his custody has many female dogs and puppies that are being subjected to abject cruelty by confining them in an unsanitary kennel. The complaint states that the dogs confined are in docks without being provided with adequate food, water and veterinary care, thereby subjecting them to pain and sufferings. The complaint also narrates that a few dogs are in pathetic condition and are in need of immediate medical care and attention.

4. Pursuant to the complaint, the police have seized five dogs from the custody of the accused and handed them over to the applicant and the said dogs were transferred to the Rehabilitation Center for immediate treatment situated at CUPA Second Chance Adoption Center, Sarjapura Road, Bengaluru. The accused in his custody had many dogs that were subjected to cruelty for the purpose of commercial breeding. The Karnataka Animal Welfare Board issued a notice dated 21.09.2020 to the first respondent police directing them to seize the remaining dogs and hand them over to a trusted NGO for care and maintenance.

5. The respondent No.1 police is presently investigating the aforesaid complaint and is still to file a charge-sheet. Such being the case, the petitioner filed an application under Rules 3 and 4 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, (‘PCA Rules, 2017’ for short) seeking for a direction from the court below permitting custody of the aforesaid ten dogs to the petitioner, pending disposal of the above criminal proceedings and also seeking maintenance at Rs.50,000/-per month towards cost of medical treatment, food and shelter for the seized dogs. The petitioner had preferred two applications for the custody and maintenance of the dogs which were seized on two different occasions on 19.09.2020 and on 25.09.2020. The respondent No.1 has filed a requisition on 30.09.2020. The accused also filed objections to the said applications. The learned Magistrate dismissed the application filed by the petitioner and passed the order directing the concerned police to hand over the interim custody of the dogs to the accused and also directed the accused to pay Rs.5,000/-to the applicant in respect of expenses spent towards treatment and nourishment of the dogs and other directions were given. Being aggrieved by the said order, the present petition is filed.

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