The custody of animals subjected to cruelty can be returned to the owner under section 35(2) of the Prevention of Cruelty to Animals Act, 1960, only if they are fit to perform their usual work or are otherwise fit for discharge. The conditions imposed for the return of the animals must be sufficient to prevent further cruelty.

Headnote:
ANIMAL WELFARE - PREVENTION OF CRUELTY TO ANIMALS ACT, 1960 - SECTIONS 11, 35(2) - BOMBAY POLICE ACT - SECTIONS 73, 74 - CUSTODY OF ANIMALS SUBJECTED TO CRUELTY - CONDITIONS FOR RETURN OF ANIMALS TO OWNER - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:

The petitioner, an animal welfare activist, challenged an order directing the return of six lionesses to the circus owner, who was accused of subjecting them to cruelty. The lionesses were examined by three veterinary doctors and found to be blind, infirm, and unfit to perform in the circus.
Finding of the Court:

The court held that the impugned order was passed in violation of the mandate of section 35(2) of the Prevention of Cruelty to Animals Act, 1960. The court found that the lionesses were unfit to perform their usual work and not fit for discharge, and that the circus owner had continued to use them for performances despite their physical and medical condition.
Issues: 1. Whether the custody of animals subjected to cruelty can be returned to the owner under section 35(2) of the Prevention of Cruelty to Animals Act, 1960? 2. Whether the conditions imposed by the trial court for the return of the lionesses were sufficient to prevent further cruelty?
Ratio Decidendi: 1. The court interpreted section 35(2) of the Prevention of Cruelty to Animals Act, 1960, and held that the Magistrate can direct the custody of animals subjected to cruelty to an infirmary until they are fit to perform their usual work or are otherwise fit for discharge. The court found that the Sanjay Gandhi National Park, where the lionesses were kept in custody, was not an infirmary as contemplated under the Act, but that the custody could be given to a Veterinary Officer in the absence of an infirmary. 2. The court held that the conditions imposed by the trial court for the return of the lionesses were insufficient to prevent further cruelty, as the lionesses were still unfit to perform and the circus owner had a history of subjecting them to cruelty.
Final Decision: The court allowed the petition and directed that the six lionesses continue to be in the custody of the Sanjay Gandhi National Park until the Veterinary Officer attached to the Park certifies that they are fit to perform their usual work or are otherwise fit for discharge. The court also expedited the trial of the cases against the circus owner and directed the trial court to complete the trial on or before 24-12-1997.

JUDGMENT - S.S. PARKAR, J.:---Rule. By consent rule is made returnable forthwith. The learned Counsel for the respondents waive service. Heard the Counsel for the parties at length.

2.The petition challenges the order dated 21st November, 1997, passed by the learned Metropolitan Magistrate, presiding over the 10th Court, Andheri, Mumbai in Criminal Case No. 654/N/1997 whereby six animals which were detained at Sanjay Gandhi National Park, Borivali, Mumbai under the previous order dated 29th October, 1997 belonging to respondent No. 2, were directed to be returned to the respondent No. 2 under certain conditions.

3.The brief facts leading to the present petition can be summerised thus:

The respondent No. 2 is the owner of the circus called "Golden Circus" which is, at present, running its shows at Jogeshwari, Mumbai. The shows commenced at the said place from 25th October, 1997. The petitioner who is an Honorary General Secretary of Society or a trust called "Ahimsa" a registered Public Charitable Trust and is recognised as Animal Welfare Officer by the Animal Welfare Board of India, had visited the said circus and witnessed the performance on 25th October, 1997 when she suspected the lionesses who were performing at the said circus to be blind and she also witnessed the torture being caused to the animals in order to activate the lionesses for performing at the said circus. She, therefore, filed complaint to the Jogeshwari Police Station, Mumbai. The police officers also, on her request, accompanied her to the venue of the circus and some of the police officers were deputed to witness the circus when they themselves witnessed the torture being caused to the lionesses by the Trainer and his helpers at the circus. The police, therefore, took cognizance of the offences under the provisions of sections 73 to 75 of the Bombay Police Act and filed chargesheets in the Metropolitan Magistrate, 10th Court, Andheri, Mumbai. The complaint dated 25-10-1997 filed by the petitioner with the Jogeshwari Police Station is annexed to this petitioner as Exhibit "A" wherein it is stated that the infirm lioness was made to perform and as she could not obey due to infirm health she was beaten, goaded and tied with a rope picked up by her tail and then put in her cage. The said lioness had been poked by three men at different places simultaneously and one lioness had collapsed during the performance. Another lioness was repeatedly beaten and goaded into her abdomen with sharp instruments by two people at a time. One of these persons being the trainer and another a helper. She also complained that she saw those animals being whipped and poked with sticks during the performance. She also filed application dated 27-10-97 before the learned Metropolitan Magistrate's Court to pass appropriate order to prevent the animals from being subjected to cruelty. Pursuant to the said application, the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai called for the report of the Veterinary doctor about the health of the animals on 28-10-97. The Veterinary doctor Mr. Pendkar submitted his report on 29-10-97. After being satisfied about the allegations made by the complainant and after considering the report of the Veterinary doctor the learned Magistrate passed order dated 29-10-97 directing the Jogeshwari Police Station to take custody of the six lionesses from the Golden Circus and keep them in the custody of Superintendent, Sanjay Gandhi National Park. The said order was challenged by the circus owner by filing Criminal Revision Application No. 430 of 1997 before the Sessions Court, Greater Bombay. The learned Sessions Judge, after hearing both the sides, by his order dated 11-11-1997, remanded the matter to the trial Court for rehearing and passing necessary orders as in his opinion the earlier order was misconceived and was not passed in accordance with the provisions of law. In the meantime, as per the order dated 29-10-1997, the six lionesses w

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