The main legal point established is that the statutory recommendations do not have a binding effect on the judicial process, and the accused has the right to custody of the animals until convicted.

Suresh Kait, J.

1. By way of the present Petition filed under Section 482 Cr.P.C. petitioner seeks directions thereby modifying the order dated 16.11.2015 passed in Crl. Rev. P. 185/2015 to the extent that the release of animals must be conditional.

2. Further seeks directions to allow the custody of the animals pursuant to order dated 16.11.2015 subject to implementation of statutory recommendations of AWBI Circular dated 27.01.2016 and ensure the safety and well-being of the animals.

3. Ms. Geeta Luthra, ld. Sr. Counsel appearing on behalf of the petitioner has drawn the attention of this court to Annexure A/9 at Page 84 dated 27.01.2016 whereby, Animal Welfare Board of India wrote a letter to the Director of Prosecution, Govt. of NCT of Delhi thereby stated as under:

“1. The State must vehemently oppose the release of custody of animals to owners/persons against whom allegations of cruelty or allegations of slaughter in respect to animals not permitted to be slaughtered, have been made. The State can do so on the basis of an order passed by the Hon’ble Supreme Court in the matter of State of UP v. Mustakeem on 22.02.2002. We enclose the order for your ready reference. A perusal of the same will reveal to you that the Hon’ble Supreme Court had expressed the view in that matter, that in a complaint of cruelty to animals, when there is apprehension of slaughter, the case property animals must not be given into the custody of the accused during the pendency of the trial.

In cases where the Courts are inclined to return the case property animals to the accused owners/persons, we recommend that the following conditions be sought to be imposed on the owners/persons in the order of release.

1. That the owner/custodian of the case property animal shall give an undertaking to the court by means of an affidavit stating-

(i) That the case property animals shall be kept within the jurisdiction of the Court. He shall give the exact address of and space availability at the place where such animals are going to be sifted and kept.

(ii) That detailed records relating to the feeding, treatment and vaccination for each animal shall be maintained and be furnished as and when required by the Investigating Officer or the Court or at the time of Inspection by any other authorized persons.

(iii) That in the eventuality of death of any animal which is case property, the concerned Investigating Officer, the Station Officer and the Court shall be informed within 6 hours of such death. That the post-mortem shall be conducted by the Jurisdictional Veterinary Doctor in the presence of the Investigating Officer and the body shall not be disposed off by the custodian prior to the same.

(iv) That no cruelty will be meted out to the case property animal under any circumstances.

(v) That the custodian shall not sell, transfer, ownership, gift or donate the animals to any person and will be solely responsible for their safekeeping.

(vi) That a personal bond of the amount being the current market value of the animals shall be deposited in the concerned police station which will be forfeited in case the animals are misused, missing or slaughtered.

(vii) That at the time of receiving the custody of the animals, custodian shall permit each case property animal to be microchipped for proper identification, by the Jurisdictional Veterinary Officer.”

4. Ld. Sr. Counsel further submits that the petitioner has no objection if the custody of the animals is given to the owners/accused, however, to ensure the well-being of the animals, the following directions may be issued:

i. That before giving custody of the case property to the custodian/owners, the Investigating Officer shall physically verify the address given in the above-mentioned Affidavit and ascertain the possibility of housing the case property animals comfortably, in terms of space.

ii. That in the case of death of animal being case property, a post-mortem is conducted by the Jurisdictional Veterinary Officer and