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Gujarat High Court
Judgename :N.N.Mathur
EMPLOYEES STATE INSURANCE CORPORATION - Appellant
Versus
CHAKARAM MORAJI NAT - Respondent
CRIMINAL REVISION APPLICATION 24 of 1996
Decided On : 04/08/1997
It will not be out of place to say that a decision to be law under Art. 141 must not be a mere conclusion by which the case is disposed of. Because, a conclusion, mere conclusion, may be on facts, it may not be and does not necessarily involve consideration of law. It is well settled that Art. 141 will not be attracted if law is not declared or stated vocally to support the conclusion reached for deciding the lis. A mute declaration of the mere conclusion is not contemplated under Art. 141. Thus, in my view, none of the cases referred to above can be of any assistance to the controversy before me.
[Para 5]
(b) Prevention of Cruelty to Animals Act, 1960 - Sec. 35 and Criminal Procedure Code, 1973 - Sec. 451 - `Locus standi to maintain petition - Interim custody of animals seized - Panjarapole a charitable institution can maintain petition.
Panjarapole is a charitable institution and it functions for the noble purpose and do their best for preserving the cattle in the State. In view of this, it cannot be said that Panjarapole has no interest in the case pertaining to cruelty to animals. Thus, keeping in view the scheme of the Act and the fact that it is not only recognised by the State, but it is vested with statutory obligation, in my view, the Panjarapole has locus to maintain a petition with respect to the interim custody of the animal seized for the offence under the Act of 1960 or the ancillary Acts.
[Para 7]
(c) Prevention of Cruelty to Animals Act, 1960 - Secs. 29 & 35 - Duty of Court - Custody of animals to owner when presence cannot be secured despite conditions and welfare of animals - Custody to Panjarapole not as a rule.
A Court while considering the question of proper custody pending enquiry or trial under Sec. 451 CrPC, is to keep in view, that because of the pendency of enquiry or trial, the owner of the muddamal is not deprived of the possession which may cause loss in his business, unless there are compelling reasons to deprive him, on the ground that, during the trial, presence of the said muddamal, is must and further, presence cannot be secured even by imposing a suitable condition or there are strong ground to form an opinion that the muddamal is likely to be forfeited at the conclusion of the trial or in case of animal, the custody to owner shall not be in the welfare of the animal, even by imosing suitable condition. Thus, my answer to second question is that, Sec. 35(2) does not cast any duty on the Court to give custody of the animal to panjarapole, as a rule.
[Para 12]
(d) Criminal Procedure Code, 1973 - Sec. 451 - Cost of maintenance of seized animals - State or Panjarapole cannot ask for cost from owner.
The Act directs for payment of maintenance of the animal only in a case where the animal is kept in infirmary for the treatment. Except this, there is no provision under the Act of 1960 or Code of Criminal Procedure which provides that the accused should be called upon to make payment for the maintenance of the animal during investigation, enquiry or trial. The financial sources are provided under the Act, if Panjarapole wish to maintain the animals. Thus, if the State or Panjarapole, whosoever ask for custody, it is their duty to maintain and they cannot ask for costs of maintenance to be paid by the accused or the owner of the animal.
[Para 14]
(e) Criminal Procedure Code, 1973 - Sec. 102 - Power of police to seize animals even in non-cognizable offence.
The police officer has a power to seize animal on suspicion of commission of an offence committed under the Act of 1960 or under the other ancillary provisions, irrespective of the fact that they are non-cognizable offences. On such seizure, the police officer is required to forthwith report to the Magistrate having the jurisdiction. The Court is required to pass an appropriate order with respect to the custody of the animal under the provisions of Sec. 451 of the CrPC. Thus, in my view, irrespective of the fact that, except offences under Clauses (i), (n) or (o) of Sub-sec. (1) of Sec. 11 or 12 of the Act of 1960, rest of the offences are non-cognizable, the police has a power to seize the animal under Sec. 102 of the CrPC and the Magistrate will be competent to pass an order under Sec. 451 of the CrPC.
[Para 18]
(f) Criminal Procedure Code, 1973 - Sec. 451 - Interim custody of animals - Guidelines for Court in exercise of judicial discretion.
As a rule, the custody of the animal is not to be given to the Panjarapole, it will be for the Court concerned to exercise judicial discretion for the custody of the animal. Though it may not be possible to lay down any precise, clearly defined and suficiently channelised and inflexible guidelines or rigid formula, the Court, while considering the question of custody should take into consideration and bear in mind the criteria.
[Para 19]
(g) Prevention of Cruelty to Animals Act, 1960 - Sec. 35(2) - No command to give custody to Panjarapole - Interference in impugned order not warranted revision rejected.
Court have held that Sub-sec. (2) of Sec. 35 does not give a command that, as a rule, the custody should be given to the Panjarapole, Court find no justified ground to interfere with the impugned order of the learned Magistrate, Dhanera.
[Para 26]
( 1 ) ). In this group of applications, which arises out of different orders with respect to interim custody of animals under the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as "the Act of 1960"), the following questions arise for consideration : q. 1. Whether Panjarapole has locus to apply and also approach to the High courts in the matter of interim custody ? q. 2. Whether as a rule pending investigation, enquiry or trial, the custody of the animal should be given to Panjarapole ? q. 3. Whether the owner of the animal alone is liable to pay the costs of maintenance of the animals while in custody of Panjarapole ? q. 4. Whether the seizure of animal by the police in non-cognizable case under the Act of 1960 and other ancillary Acts, is legal ? What is its effect of order for interim custody ? q. 5. What criteria should be adopted by the Courts while directing the interim custody of animal seized for the offence under the Act of 1960 and other ancillary acts ? question-1 :
( 2 ) ). Mr. M. M. Tirmizi, learned Counsel appearing for the owners of the animal submits that Panjarapole has no locus to either apply for the interim custody of the animal or to approach to the Higher Courts in that regard. In the Criminal proceeding for the offences under the said Act of 1960, the concerned parties are only the owner or accused and the State. It is only under Sec. 35 of the Act of 1960, the concerned magistrate may direct to send the animal to Panjarapole. This in itself would not give power to Panjarapole to ask for the custody.
( 3 ) ). Learned Counsel relies on an unreported decision of this Court rendered in special Criminal Application No. 804 of 1985 on 30-10-1985, wherein this Court (Coram : M. B. Shah, J. , as His Lordship then was) said, "in my view, as such respondent No. 2 has no locus standi in the matter because possession of the animals was handed over to Panjarapole only as a custodian". It may be stated that in the said case, the Panjarapole was the respondent No. 2. He has also referred to the order dated 2-9-1996 of the Supreme Court in Special Leave to Appeal No. 2349 of 1996 wherein the Apex Court rejected the appeal of Panjarapole saying that :"the petitioner is unconnected with the merits of the case. He is thus not aggrieved by change of custody of the case property. Special Leave Petition is dismissed". It is thus submitted by Mr. Tirmizi that Panjarapole is only a custodian and as observed by the Supreme Court, it has nothing to do with the merits of the case and thus, cannot be said to be an aggrieved party. In view of this, the Panjarapole cannot have any locus in the matter of interim custody of the animal with respect to the offence under the Act of 1960.
( 4 ) ). On the other hand, Mr. N. S. Sheth, learned Counsel appearing for the panjarapole contended that the Panjarapole being interested in the welfare and protection of the animal, has a right to approach to the Court and ask for the custody. Learned Counsel has placed reliance on the order of the Supreme Court dated 9-9- 1996 passed in Special Leave to Appeal (Cr.) (Bharatbhai Kothari v. Jabbar Mohd. Ramzan and Ors. ). In the said Special Leave Application preferred by the panjarapole, the Supreme Court while refusing to interfere with the order of the high Court, added further condition and directed the learned Magistrate to ensure proper maintenance of the animal by appointing a Special Officer from amongst the learned Counsel appearing and practising in that Court to ascertain the proper keeping of the animal every month and furnish the statement in that regard. On the strength of the said order, it is contended by Mr. Sheth that the said condition was added on a petition filed by the Panjarapole and as such, the Apex Court accepted the locus of the Panjarapole.
( 5 ) ). The aforesaid cases cited before me, of this Court and the Apex Court, in my view, cannot be taken as precedent. Taking the first unreported cas
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