The court emphasized the discretion of the Magistrate in deciding custody, the provisions for care and treatment of animals, and the impact of indefinite custody on the owner's rights.

JUDGMENT :

SAUMITRA DAYAL SINGH, J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. The present criminal revision has been filed to quash the impugned order dated 14.08.2018 passed by the A.C.J.M., Court No. 1, Varanasi, pertaining to Case Crime No. 209 of 2018, under Sections-279, 307 I.P.C. & Section 3/5A/8 of the Prevention of Cow Slaughter Act, 1955 and Section 11 of the Prevention of Cruelty to Animal Act, 1960, Police Station-Mirza Murad, District-Varanasi by which the learned Magistrate has rejected the applicant's application for release of the cattle in his favour.

3. The grievance of the applicant appears to be that the applicant is the only rightful owner of the animals and that he had not infringed the law. The animals have been seized on a mere misunderstanding or wrong allegation and their custody has been deprived to the applicant by misreading the provisions of Prevention of Cruelty to Animal Act, 1960 (hereinafter referred to as the Act) read with Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals Rules), 2017 (hereinafter referred to as the Rules).

4. Learned counsel for the applicant submits that neither there is any dispute as to the ownership claimed by the applicant nor there is any other claimant. In such circumstances, it has been submitted that the learned Magistrate has erred in rejecting the application filed by the applicant. He has also relied on a decision of the Supreme Court in the case of Manager, Pinjrapole, Deodar Vs. Chakaram Moraji Nat reported in 1998 (6) SCC 520.

5. Learned AGA on the other hand submits that in view of the mandatory provisions of the Act read with Rules, during pendency of the proceedings, the animals could not be released in favour of the applicant and they had to be necessarily retained in the custody of the Court.

6. Having considered the arguments so advanced by learned counsel for the parties, it appears that the Supreme Court in the case Manager, Pinjrapole, Deodar Vs. Chakaram Moraji Nat (supra) has observed as under:-

"10. Now adverting to the contention that under Section 35(2), in the event of the animal not being sent to infirmary, the Magistrate is bound to give the interim custody to Pinjrapole, we find it difficult to accede to it. We have noted above the options available to the Magistrate under Section 35(2). That sub-section vests in the Magistrate the discretion to give interim custody of the animal to Pinjrapole. The material part of subsection (shorn of other details) will read, the Magistrate may direct that the animal concerned shall be sent to a Pinjrapole. Sub-section (2) does not say that the Magistrate shall send the animals to Pinjrapole. It is thus evident that the expression "shall be sent" is part of the direction he decides to give interim custody to Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not count to hand over custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, Pinjrapole has no preferential right. In deciding whether the interim custody of the animal be given to the owner who is facing prosecution, or to the Pinjrapole, the following factors will be relevant:

(1) the nature and gravity of the offence alleged against the owner; (2) whether it is the first offence alleged or he has been found guilty of offences under the Act earlier; (3) if the owner is facing the first prosecution under the Act, the animal is not liable to be seized, so the owner will have a better claim for the custody of the animal during the prosecution; (4) the condition in which the animal was found at the time of inspection and seizure; (5) the possibility of the animal being again subjected to cruelty. There cannot be any doubt that establishment of Pinjrapole is with the laudable object of preventing unn