0612WP143.17-Judgment 1/17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 143 OF 2017
PETITIONERS :- 1. Syed Zakeer Syed Bhura, Aged about 32
years, Occu. Agriculturist,
2. Mujahiduddin Rahimuddin, Aged about 23,
Occu. Agriculturist,
Petitioner 1 & 2 are R/o Ward No.3, Chahal
Pura, Tq. Mangrulpir, Dist.Washim.
3. Sattar Khan S/o Akbar Khan, Aged about 28
years, Occu. Labour, R/o Ward No.1, Behind
Bus Stand at Post Mahan, Tq. Barshitakli,
Dist. Akola.
...VERSUS...
RESPONDENTS :- 1. The State of Maharashtra, through Police
Station, Buttibori, Dist. Nagpur.
2. Kanji House (Kondwada), at post Kapri
(More), through its in charge (Sarpanch) at
Post Khapri (More), Tq. Hingna, Dist.
Nagpur.
3. Gowshala Pashupalan Bahuudeshiya
Sanstha, through its President- Munna
Kamlaprasad Shukla, Aged about 46 years,
Occu. Nil, Office Address: 5/B Bezonbagh
Society, Bezonbagh, Nagpur-440004.
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Mr.A.M.Haque, counsel for the petitioners.
Mr.A.R.Chutake, A.P.P. for the respondent No.1.
Mr. G.M.Shitut, counsel for the respondent No.2.
Mr.R.M.Daga, counsel for the respondent No.3.
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0612WP143.17-Judgment 2/17
CORAM : REVATI MOHITE DERE, J.
DATED : 06.12.2017 P. C.
Rule. Rule is made returnable forthwith with the consent of the parties and is taken up for final hearing and disposal at the stage of admission.
2. At the outset, learned counsel for the petitioners does not press prayer clauses (iii), (iv) and (v) of the petition and seeks liberty to file an appropriate application/proceedings before the appropriate Court/ Authority with respect to the said prayers.
3. By this petition, the petitioners have impugned the common order dated 19/11/2016 passed by the learned Judicial Magistrate First Class, Court No.10, Nagpur in M.C.A. No.4326 of 2016 (filed by the petitioner No.1), M.C.A. No.4323 of 2016 (filed by the petitioner No.2) and M.C.A. No.4322 of 2016 (filed by the petitioner No.3) alongwith other connected M.C.As., by which the application bearing M.C.A. No.4397 of 2016, preferred by the respondent No.3- Gaushala Sanstha was allowed and the petitioners' applications were rejected; as well as the order dated 03/01/2017 passed by the learned Additional Sessions Judge-10, Nagpur in Criminal Revision No.273 of ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 3/17 2016, by which the learned Additional Sessions Judge dismissed the petitioners' revision application and accordingly, confirmed the order dated 19/11/2016 passed by the learned Magistrate.
4. Learned counsel for the petitioners submits, that both the lower Courts had failed to consider that the prosecution case, that the she-buffaloes were being taken to the slaughter house, on the face of it was false and unbelievable, inasmuch as, all the seized 18 she-buffaloes, who were being transported from the place of purchase to the petitioners' residences, were in the advanced stage of pregnancy and hence, the question of slaughtering them did not arise. He further submitted, that the paramount consideration whilst deciding the applications is the welfare of the buffaloes and, that who was in a better position to take proper care of the buffaloes, during the pendency of the trial. According to the learned counsel for the petitioners, the same was not considered by both the Courts below in their proper perspective. He submitted, that the petitioners have all the requisite amenities/facilities to look after the buffaloes, including cattle pond and as such, all the petitioners are, equipped to handle, possess and maintain the said cattle. He further submitted, that as regards ownership of the buffaloes is concerned, there is no dispute that the petitioners are owners of the said buffaloes. According to the learned counsel for the petitioners, all ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 4/17 the petitioners are agriculturists and are engaged in the business of selling milk and as such, the she-buffaloes purchased by them, are source of their livelihood. Learned counsel for the petitioners relied on the additional affidavits filed by each of the petitioners to show, the facilities available with them, to look after the buffaloes and their competency to take care of the buffaloes. The petitioners have also undertaken to take care of the health of the cattle; to protect and preserve the cattle; to not sell or transfer the said cattle to any third person till the conclusion of the trial; to strictly obey the conditions stipulated in Rules 47 and 56 of the Transport of Animals Rules, 1978 while transporting the cattle; and to produce the cattle as and when required during the course of the trial. Learned counsel has also annexed photographs to show the facilities available to look after the buffaloes. The petitioners have also agreed to pay the maintenance charges of the respondent No.2, from the date of confiscation of the buffaloes till the date of the impugned order, passed by the learned Additional Sessions Judge, Nagpur, i.e. from 16/10/2016 till 03/01/2017. Learned counsel further submitted, that the Investigating Officer had thrust the she-buffaloes on Kanji House i.e. respondent No.2, despite respondent No.2 not having the required facilities to look after the seized she-buffaloes. He further submitted, that though the respondent No.3-Gaushala Sanstha had filed an application for custody ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 5/17 of the she-buffaloes, which was allowed by the learned Magistrate and confirmed by the learned Sessions Judge, no steps were taken by the respondent No.3-Gaushala Sanstha, to take custody of the she-buffaloes from the respondent No.2. He further submitted, that the callous manner in which the Investigating Officer dealt with the pregnant 18 she-buffaloes in this case, resulted in the death of 18 calves and 2 she- buffaloes. According to the learned counsel, due to negligence and callousness of the respondents, 18 calves and 2 she-buffaloes died, when they were in the custody of the respondent No.2 and, that all the respondents were responsible for the same and as such, seeks compensation and action against the respondents.
5. Learned counsel for the respondent No.2 submitted, that the Investigating Officer had thrust the custody of the buffaloes on them (respondent No.2), despite respondent No.2 having no facilities to look after the she-buffaloes. He further submitted, that in fact, the respondent No.2-Kanji House is not meant for looking after buffaloes under the Maharashtra Village Panchayats Act. According to the learned counsel, despite the order of the learned Magistrate and the Additional Sessions Judge, directing the respondent No.3 to take custody of the said buffaloes, the respondent No.3 had not come forward to take custody of the said buffaloes from the respondent No.2-Kanji House. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 :::
0612WP143.17-Judgment 6/17 Learned counsel for the respondent No.2 does not deny, that 18 calves and 2 she-buffaloes had expired in their custody. He submits, that even today the respondent No.2 is unable to look after the buffaloes and prays, that appropriate orders be passed with regard to handing over custody of the buffaloes, either to the petitioners or to the respondent No.3.
6. Learned counsel for the respondent No.3 vehemently opposed the petition. He submitted, that it is only the respondent No.3- Gaushala Sanstha, that was competent and had the requisite facilities to look after the she-buffaloes. He submits, that the respondent No.2 did not hand over the custody of the she-buffaloes to them as, they had not received maintenance charges as directed by the learned Magistrate i.e. the petitioners had not paid the maintenance charges to the respondent No.2, as directed. He further submitted, that as the respondent No.2 was refusing to hand over custody of the she-buffaloes to the respondent No.3, the respondent No.3 filed an appropriate application before the learned Magistrate for taking action against the respondent No.2. Learned counsel for the respondent No.2 refuted the said submission advanced by the learned counsel for the respondent No.3. He submits, that at no point of time, the respondent No.3 came to the respondent No.2-Kanji House for seeking the custody of the said she- ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 :::
0612WP143.17-Judgment 7/17 buffaloes. According to the learned counsel for the respondent No.3, no interference was warranted in the impugned orders, by which custody of the she-buffaloes was handed over to them, in writ jurisdiction.
7. Learned A.P.P. for the respondent-State also opposes the petition. He submits, that as the petitioners had not paid the requisite maintenance charges to the respondent No.2, respondent No.2 did not permit respondent No.3 to take custody of the said buffaloes in compliance with the order passed by the learned Magistrate and confirmed by the learned Sessions Court. The said statement is again disputed by the learned counsel for the respondent No.2. Learned A.P.P. denies, that the Investigating officer was in any way responsible for thrusting the she-buffaloes on the respondent No.2-Kanji House. Learned A.P.P. on instructions of the concerned officer, however, does not dispute the fact, that the petitioners have the requisite facilities i.e. place, cattle pond, cattle shed, food, fodder and water etc. to look after the she-buffaloes.
8. Perused the papers including the impugned orders. Admittedly, the petitioner No.1 is the owner of 5 buffaloes; the petitioner No.2 is the owner of 4 buffaloes and the petitioner No.3 is the owner of 1 buffalo. Admittedly, on 16/10/2016 all the buffaloes were ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 8/17 purchased by the petitioners from the A.P.M.C. Market Bramhapuri, District Chandrapur for a valuable consideration. The purchase receipts issued by the A.P.M.C. Market Bramhapuri in favour of the petitioners are placed on record. After purchasing the said buffaloes, the petitioners alongwith other owners of buffaloes were transporting the said she- buffaloes from Bramhapuri, District Chandrapur (place of purchase) to Mangrulpir, District Washim (to their respective residences) in commercial vehicles, when the said vehicles were intercepted by the Police. It is alleged, that 8 she-buffaloes were being transported in 2 Mahindra Bolero bearing registration No.MH-29-T-5622 and MH-37-J- 1883 and 10 she-buffaloes were being transported in Eicher truck bearing registration No.MH-26-S-7845. The Police personnel seized all 18 buffaloes and the 3 vehicles. Accordingly, the Police registered Crime No.734 of 2016 with Butibori Police Station, Nagpur as against the petitioners, for the alleged offences punishable under sections 11 (1) (a) (d) (e) and (f) of the Prevention of Cruelty to Animals Act, 1960 and sections 83 and 177 of Motor Vehicles Act. The principal allegation as against the petitioners and others was, that she-buffaloes were transported in a crowded condition and cruel manner, in clear violation of the provisions of the Prevention of Cruelty to Animals Act and the Rules thereunder. Pursuant to the registration of the aforesaid crime, the Police handed over all the 18 she-buffaloes to the respondent No.2- ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 :::
0612WP143.17-Judgment 9/17 Kanji House (Kondwada), At Post-Khapri (More), Tahsil Hingna, Nagpur (Rural). The petitioners, thereafter, preferred separate applications before the learned Judicial Magistrate First Class, Nagpur under section 457 of Criminal Procedure Code and sought release of their she-buffaloes on supratnama. It appears that the respondent No.3- Gaushala Sanstha also preferred an application bearing M.C.A. No.4397 of 2016 and sought custody of all the 18 she-buffaloes and 18 calves. The learned Magistrate rejected the petitioners' applications seeking release of their she-buffaloes and allowed respondent No.3-Gaushala Sanstha's application seeking custody of the 18 she-buffaloes and the 18 calves. The learned Magistrate handed over the custody of all the 18 she-buffaloes and the 18 newly born calves to the respondent No.3- Gaushala Sanstha, till the conclusion of the trial on certain terms and conditions. By the said order dated 19/11/2016, the learned Magistrate while releasing the buffaloes in favour of respondent No.3, also directed the owners of the buffaloes to pay maintenance charges to the respondent No.2-Kanji House, till the date of handing over the custody of the buffaloes. Being aggrieved by the said order dated 19/11/2016, the petitioners herein, filed a revision application, bearing Criminal Revision No.273 of 2016 and sought quashing and setting aside of the impugned order dated 19/11/2016. The learned Additional Sessions Judge, after hearing the parties, was pleased to dismiss the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 10/17 said revision application preferred by the petitioners. It appears, that during the pendency of the revision application, 18 calves and 2 she- buffaloes expired at Kanji House (respondent No.2). It appears, that only postmortem of 2 she-buffaloes was done, whereas the postmortem of 18 calves was not done. The question, that arises for consideration, is whether the impugned orders are erroneous and unsustainable, in the facts, considering the material on record. A perusal of the impugned orders show, that both the Courts below had failed to consider the competency of the petitioners to look after the cattle and whether they had the requisite facilities to look after the cattle under section 35(2) of the Prevention of Cruelty to Animals Act. Needless to state, that in cases, where the owners seek custody of the animals, neither the Pinjrapole nor the Gaushala can be said to have a preferential right. In such cases, i.e. where the question of handing over interim custody of the cattle/animals to the owners, who are facing prosecution, or Pinjrapole/Guashala arises, the Magistrate has to consider certain relevant factors; (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 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 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 11/17 seizure; (5) the possibility of the animal being again subjected to cruelty.
9. Although, it is vaguely alleged, that the she-buffaloes were being taken to the slaughter house, prima facie it is doubtful, considering the fact, that all the 18 she-buffaloes were in the advanced stage of pregnancy at the relevant time and had in fact delivered within a few days, after they were seized. Admittedly, all she-buffaloes were purchased on the very same day i.e. on 16/10/2016 from the A.P.M.C. Market, Bramhapuri and were being transported in vehicles, where the petitioners were residing, when the vehicles were intercepted and the buffaloes were seized. The principal allegation against the petitioners is that the buffaloes were being transported in contravention of section 11 of the Act (i.e. overcrowding, in a cruel manner etc.). Admittedly, the seized she-buffaloes were not examined by a Veterinary Officer, as contemplated under the Prevention of Cruelty to Animals Act, 1960. Neither any photos of the she-buffaloes taken to show the condition in which they were found i.e. whether there were any injuries on their body, etc.
10. The petitioners have placed on record the facilities that are available at their respective residences i.e. cattle pond, cattle shed, food, fodder and water etc. All the three petitioners have shown their ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 12/17 preparedness and capability to maintain the she-buffaloes during the pendency of the trial. The said fact with regard to the capability, preparedness and ownership of the petitioners is also not disputed by the learned A.P.P. Both, the lower Courts failed to assess the preparedness and capability of the petitioners to maintain the she- buffaloes during the pendency of the trial. The petitioners are agriculturists by profession and supply milk door to door and the she-buffaloes purchased by them, are their source of income. The petitioners have undertaken in their additional affidavits to abide all the conditions that may be imposed by this Court, if the custody of the said she-buffaloes is handed over to them.
11. Prima facie, it appears, that the Investigating Officer had thrust all the 18 pregnant she-buffaloes at Kanji House i.e. with the respondent No.2, despite the respondent No.2 having no facilities to look after them, whether the Investigating Officer was justified in thrusting/ keeping the she-buffaloes at a place, having no proper facilities, is a matter which raises serious concern, as it is not in keeping with the object/purpose of the said Act. It is not in dispute, that 18 calves and 2 she-buffaloes died whilst in the custody of the respondent No.2. It is informed by the learned counsel for the respondent No.2, that the respondent No.2 was not authorized to look after the she- ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 :::
0612WP143.17-Judgment 13/17 buffaloes, under the Maharashtra Village Panchayats Act and, that Kanji House was meant only for stray cattle and, that despite informing the Investigating Officer, the Investigating Officer kept the she-buffaloes with them. It appears, that in the said process for no fault of theirs, the petitioners lost 18 calves and 2 she-buffaloes. It is not necessary to go into the said question, as to who was responsible for the death of the 18 calves and 2 she-buffaloes and, that the said question is kept open for agitating the same before the appropriate forum.
12. Considering the aforesaid, the following order is passed.
ORDER (1) The petition is allowed and the impugned order dated 19/11/2016 passed by the learned Judicial Magistrate First Class, Court No.10, Nagpur below M.C.A. No.4326 of 2016 (filed by petitioner No.1), M.C.A. No.4323 of 2016 (filed by petitioner No.2) and M.C.A. No.4322 of 2016 (filed by petitioner No.3) as well as M.C.A. No.4397 of 2016 (preferred by the respondent No.3-Gaushala), inasmuch as, it dismisses the petitioners' M.C.A's and allows the M.C.A. preferred by the respondent No.3 as well as the impugned order dated 03/01/2017 passed by the learned Additional Sessions Judge, Nagpur in Cri.Revision No.273 of 2016 are quashed and set aside.
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0612WP143.17-Judgment 14/17 (2) The learned Magistrate to hand over the custody of 5 she-buffaloes to the petitioner No.1; the custody of 4 she-buffaloes to the petitioner No.2; and the custody of 1 she-buffalo to the petitioner No.3, on the following terms and conditions:-
(i) The petitioner No.1 shall execute supratnama bond for 5 she-buffaloes in the total sum of Rs.50,000/-; the petitioner No.2 shall execute supratnama bond for 4 she- buffaloes in the total sum of Rs.40,000/-; and the petitioner No.3 shall execute supratnama bond for 1 she- buffalo in the sum of Rs.10,000/-.
(ii) The petitioners shall not sell or transfer the she-buffaloes to any third person till the conclusion of the trial.
(iii) The petitioners shall comply with the conditions stipulated in Rules 47 and 56 of the Transport of Animals Rules 1978 as well as the provisions of the Prevention of Cruelty to Animals Act, 1960 while transporting the she-buffaloes and even otherwise, at all times.
(iv) The petitioners shall take care of the she-buffaloes and provide good facilities and take all steps to protect and preserve them.
(v) The petitioners to produce the she-buffaloes as and when
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0612WP143.17-Judgment 15/17
required during the course of the trial.
(vi) In case, there is demise of any of the she-buffaloes, the
petitioners shall inform the Trial Court as well as the concerned Investigating Officer of the same.
(vii) The petitioners shall file periodic health report of the she-
buffaloes so released, every six months, in the Trial Court.
(viii) The petitioners shall give 48 hours notice to the Investigating Officer as well as the respondent No.2, before taking the custody of the said buffaloes from the respondent No.2.
(4) The petitioners shall file separate undertaking with respect to the aforesaid clause Nos.(i) to (viii) in the Trial Court before the release of the she-buffaloes.
(5) The Investigating Officer shall hand over the she-buffaloes to the petitioners in presence of panchas, after the she-buffaloes of the respective petitioners are identified.
(6) The petitioners shall deposit the maintenance charges from the date of seizure till the date of criminal revision application was rejected i.e. 03/01/2017, as under :-
The Petitioner No.1 shall deposit Rs.33,575/-, ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 ::: 0612WP143.17-Judgment 16/17 The Petitioner No.2 shall deposit Rs.26,860/- and The Petitioner No.3 shall deposit Rs.6,715/-.
The aforesaid amounts shall be deposited by the petitioners in the Trial Court before the release of the she-buffaloes. On depositing the said amounts, the Trial Court shall release the said amounts in favour of the respondent No.2. The respondent No.2 is at liberty to claim the balance maintenance charges i.e. from the date of the order dated 03/01/2017 till the date the she-buffaloes are handed over to the petitioners, either from the petitioners, or from the State or from the respondent No.3.
(7) As far as remaining 6 she-buffaloes are concerned, the respondent No.3 shall forthwith take custody of the remaining she-buffaloes from the respondent No.2 in the presence of Investigating Officer on 23/12/2017, after preparing a panchanama.
(8) The respondent No.2 shall not insist on payment of charges by the respondent No.3, at the time, the custody of the balance she- buffaloes are handed over to them. However, the respondent No.2 will be at liberty to recover the maintenance charges either from the respondent No.1 or from the respondent No.3 or from the owners of the she-buffaloes.
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0612WP143.17-Judgment 17/17 (9) As far as prayer clauses (iii), (iv) and (v) of the petition are concerned, liberty is granted to the petitioners to file appropriate application/ proceedings before the appropriate Court/Authority for seeking the very same reliefs.
(10) It is made clear, that the order with respect to the balance 6 she-buffaloes has been passed, as the impugned order of the Trial Court has not been challenged by the owners of the said she- buffaloes.
Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
13) All the parties to act upon the authenticate copy of this order.
JUDGE KHUNTE ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:42:34 :::