Bombay High Court
Shaikh Yusuf S/O Shaikh Gafoor vs The State Of Maharashtra, Through ... on 30 March, 2016
Bench: Z.A. Haq
1 apl188.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.188/2014
Shaikh Yusuf S/o Shaikh Gafoor,
Aged about 40 Yrs., Occu. Business,
R/o Baghicha Plot, Gordives,
Hiwarkhed, Tq. Telhara,
Distt. Akola. ..Applicant.
..Versus..
1. The State of Maharashtra,
through P.S.O., P.S. Hiwarkhed,
Tq. Telhara, Distt. Akola
2. Akot Gorakshan Seva Samittee,
through its Vice-President,
Krushna Gopal Mathuradas
Daga, Gorakshan Samittee, Akot.
Tq. Akot, Distt. Akola. ..Non-applic
a
nts.
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Shri A.B. Mirza, Advocate for the applicant.
Shri N.B. Jawade, A.P.P. for non-applicant no.1.
Shri R.M. Daga, Advocate with Shri M.P. Khajanchi, Advocate for non-applicant no.2.
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CORAM : Z.A. HAQ, J.
DATE : 30.3.2016
JUDGME N
T
1. Heard Shri A.B. Mirza, advocate for the applicant, Shri N.B. Jawade, A.P.P.
for non-applicant no.1 and Shri M.P. Khajanchi, advocate for non-applicant no.2.
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2. Rule. Rule made returnable forthwith.
3. The applicant has challenged the order passed by the learned Magistrate on
1st April, 2013 rejecting the application filed by the applicant for grant of interim
custody of 7 bullocks and allowing the application filed by the non-applicant no.2
under Section 451 and 457 of the Code of Criminal Procedure and granting interim
custody of the bullocks to the non-applicant no.2. The applicant has also challenged
the order passed by the Sessions Court on 18th June, 2013 dismissing the revision
filed by the applicant and confirming the order passed by the learned Magistrate.
4. The Assistant Police Inspector, Hiwarkhed registered the Crime No.21/2013
against five persons for the offence punishable under Section 429, 468, 471 and 420
of the Indian Penal Code and under Section 11 of the Prevention of Cruelty to
Animals Act, 1960 (for short "Act of 1960"). The allegations against the accused are
that the police team found one white bullock in slaughtered condition in Kasaipura
locality of Hiwarkhed and at a distance of about 50 feet to 60 feet they found
bullocks tied in a small place without water and fodder. It is alleged that accused
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prepared bogus receipts in the names of different persons showing that the bullocks
were purchased by those persons. The 7 bullocks which were found tied, have been
seized.
The applicant and the non-applicant no.2 filed applications under Section
451 and 457 of the Code of Criminal Procedure praying for interim custody of 7
bullocks. The learned Magistrate, by the impugned order, rejected the application
filed by the applicant, allowed the application filed by the non-applicant no.2 and
directed that the custody of 7 bullocks be given to the non-applicant no.2 on the
conditions as stated in the order.
The applicant being aggrieved by the order passed by the learned
Magistrate, filed revision which is dismissed by the Sessions Court.
The applicant being aggrieved in the matter, has filed this application under
Section 482 of the Code of Criminal Procedure.
5. Shri Mirza, learned advocate for the applicant has submitted that the
applicant is in business of sale and purchase of live stock, that the applicant is not
concerned with the slaughtered bullock alleged to have been found by the police
team, that 7 bullocks which are given in interim custody of the non-applicant no.2
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were tied in a shed and they are owned by the applicant. It is submitted that the
applicant has produced on the record of the trial Court receipts issued by the market
Contractor of Grampanchayat Hiwarkhed and Agricultural Produce Committee to
substantiate the claim that the bullocks are purchased by the applicant. It is
submitted that the statement of the Market Contractor supports the contention of the
applicant that he is the owner of the bullocks. It is argued that the failure on the part
of the subordinate Courts to appreciate the documentary evidence and the
statements on the record, vitiates the orders passed by them. The learned advocate
has pointed out that at the time when the order was passed by the learned
Magistrate, the investigation was going on, however, subsequently, after the
investigation is completed and charge-sheet is filed on 13th January, 2014, the
applicant is not shown as accused and there is nothing in the charge-sheet to show
that the claim of the applicant that 7 bullocks, which are given in interim custody of
the non-applicant no.2, are not owned by the applicant. It is prayed that the orders
passed by the subordinate Courts be set aside, application filed by the applicant
under Section 451 and 457 of the Code of Criminal Procedure be allowed and the
non-applicant no.2 be directed to give the custody of 7 bullocks which were handed
over to it, to the applicant.
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6. Shri Jawade, learned A.P.P. has submitted that the applicant is not entitled
for interim custody of the 7 bullocks as according to the prosecution the receipts
produced by the applicant to contend that he has purchased those bullocks, are
forged and fabricated. It is further submitted that the 7 bullocks were found at a
distance of about 50 feet to 60 feet from slaughtered bullock and were tied together
in such a condition that it can be said that the applicant treated bullocks with cruelty.
It is further submitted that the bullocks were not provided with fodder and water. It is
argued that the interim custody of the bullocks is rightly given to the non-applicant
no.2 which is taking care of all the bullocks. It is prayed that the application be
dismissed and the orders passed by the subordinate Courts be maintained.
7. Shri Khajanchi, learned advocate for the non-applicant no.2 has relied on the
provisions of Section 35(2) of the Act of 1960 and has submitted that the learned
Magistrate has properly exercised his powers and has rightly given interim custody
of the bullocks to the non-applicant no.2. It is submitted that the applicant had not
provided fodder and water to the bullocks and had kept them tied together and
therefore, the applicant committed offence punishable under Section 11(1)(h) and
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11(1)(f) of the Act of 1960 and applicant is not entitled for interim custody of the
bullocks. It is further submitted that the learned Magistrate has considered all the
material on the record and the order passed by him does not suffer from any
illegality or perversity and the learned Additional Sessions Judge has examined the
matter independently and after considering the legal position, has rightly maintained
the order passed by the learned Magistrate. It is submitted that the orders passed
by the subordinate Courts are proper and does not require any interference by this
Court under Section 482 of the Code of Criminal Procedure. It is prayed that the
application be dismissed with costs.
8. With the assistance of the learned advocates for the respective parties I have
examined the documents placed on the record of the application. The
charge-sheet is filed against Shaikh Jabbar Shaikh Khairu, Shaikh Budan Shaikh
Ahmad, Shaikh Kahar Shaikh Khairu, Shaikh Rajjak Shaikh Kalu and Shaikh Sharif
Shaikh Rafiq. The applicant is not shown as accused. The learned A.P.P. has not
been able to show anything from the charge-sheet on the basis of which it can be
said that the claim of the applicant for grant of interim custody of 7 bullocks cannot
be considered. The learned advocate for the applicant has submitted that the
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applicant has produced on the record of the trial Court the receipts issued by the
Market Contractor of Grampanchayat, Hiwarkhed and by the Agricultural Produce
Market Committee to substantiate the claim of the applicant that he has purchased
the 7 bullocks. Surprisingly, the learned Magistrate as also the learned Sessions
Judge have not dealt with the documentary evidence. Though the non-applicant no.
1 refuted the claim of the applicant regarding ownership in respect of 7 bullocks by
alleging that the receipts are bogus and fabricated, the learned A.P.P. has not been
able to point out that such charge is levelled against the applicant. As stated above,
the applicant is not even shown as accused.
9. In the above facts, I find that the order passed by the learned Magistrate
rejecting the application filed by the applicant for interim custody of the bullocks and
the order passed by the learned Additional Sessions Judge, are unsustainable.
Consequently, the impugned orders are required to be set aside and the application
filed by the applicant has to be allowed.
10. Hence, the following order:
(i) The impugned orders are set aside.
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(ii) The non-applicant no.2 shall hand over the custody of 7 bullocks which were
handed over to it pursuant to the order dated 1st April, 2013, to the applicant
forthwith.
(iii) The applicant shall execute indemnity bond of Rs.1,00,000/- (Rs. One Lakh
Only) with condition that the applicant shall not sale, dispose or destroy the 7
bullocks till the disposal of the criminal case pending before the learned Magistrate.
None of the parties are aware about the status of the proceedings before the
Magistrate. The applicant shall also file an undertaking before the learned
Magistrate that he will produce seven bullocks as and when required.
(iv) The application is allowed in the above terms.
(v) In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
