Point of Law: Section 11(1)(a) provides that:-If any person beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being owner permits, any animals to be so treated.

JUDGMENT :

Heard Mr. Harsh Pandya, learned Senior Counsel, assisted by Ms. S. Agarwal, learned counsel for the petitioner and also heard Mr. D. Das, learned Addl. Public Prosecutor for the State respondent No. 1 & 2 and Mr. T. Chutia, learned counsel for the private respondents, No. 3 to 8.

2. Legality, propriety and correctness of the order, dated 06.04.2021, passed by the learned Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, in Biswanath Chariali P.S. Case No.33/2021, under Section 420/429/511 IPC, read with Section 11(a)(d)(h) of the Prevention of Cruelty to Animals Act, 1960, is challenged in this petition, under Section 397/401, read with section 482 of the Code of Criminal Procedure, 1973 by the petitioner-Dhyan Foundation. It is to be mentioned here that vide impugned order, the learned Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, allowed custody of the seized 62 numbers of cattle, in favour of the private respondent Nos.3 to 8, by rejecting the prayer of the petitioner for interim custody.

3. The factual background leading to filing of the present petition is briefly stated as under:-

“On 07.02.2021, at about 2:35 PM, the Officer-in-Charge, Biswanath Chariali Police Station had received one telephonic message from the Superintendent of Police, Biswanath Chariali to the effect that a large number of cattle were being carried by some goods carrying vehicles, covering the same with timbers to avoid the notice of police, from Gohpur towards Tezpur. Then the Officer-in-Charge had recorded a General Diary Entry, and instructed ASI Dipen Bhuyan for carrying out ‘Naka Checking’ at National Highway No. 15, in front of the police station. Accordingly, the ASI along with other colleague started ‘Naka Checking’ and at about 3:00 P.M., he found eight vehicles illegally carrying excessive number of cattle, by covering the same with timbers. On questioning of the persons carrying the cattle, and examining the connected documents it was found that they were illegally carrying large number of cattle, by throwing dust to the eyes of police. Then the persons carrying the cattle, all the eight vehicles along with 62 cattle were taken to the police station for necessary action. Thereafter, ASI Dipen Bhuyan lodged one FIR with the Officer-in-Charge of Biswanath Chariali Police Station.

Upon the said FIR, the Officer-in-Charge of Biswanath Chariali P.S., registered a case, being Biswanath Chariali Case No.33/2021, under Section 420/429/511 of the IPC, read with Section 11(a)(d)(h) of the Prevention of Cruelty to Animals Act, 1960 and endorsed S.I. (P) Shyamal Neog to investigate the same. The I.O. then seized the cattle preparing seizure list, and thereafter, shifted the seized cattle to the Gaushala of the petitioner, situated at Karabil Bongali, Biswanath Chariali, on the request of the Officer-in-Charge of Biswanath Chariali P.S. on 07.02.2021, for safe custody. Since then, the petitioner has been taking care and maintenance of the seized cattle. Thereafter, the petitioner approached the Court of learned Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, for interim custody of the seized cattle during the pendency of trial of the case, by filing the Petition No.103, dated 08.02.2021. Subsequently, the private respondent Nos. 3 to 8 also filed their individual petitions before the Court of learned Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, praying for custody of the seized cattle. The learned Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, after hearing the parties, passed the impugned order, dated 06.04.2021, by giving custody of all the seized cattle to the private respondent Nos. 3 to 8, thereby rejected the prayer for interim custody of the seized cattle.

4. Being highly aggrieved by the rejection order, the petitioner approached this Court, inter alia, on the following grounds, amongst others:-

(a) That, while passing the impugned order, the learned Magistrate has erred in l