Bombay High Court
Shri Krishna Gausewa Sanstha Thr. ... vs State Of Mah. Thr. Pso Ps Butibori ... on 15 July, 2021
Bench: Manish Pitale
1/7 31-WP687.20-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. WRIT PETN. NO. 687 OF 2020
PETITIONER :- Shri Krishna Gausewa Sanstha, having its
registered office at Juni Turakmari
(Butibori), Tah. Hingna, Dist. Nagpur,
(Registration No.F-26071) through its
President Shri Pradeep s/o Mulchand
Kashyap, Aged about 56 years, Occ.
Private, R/o Mehndibag Road, Lalganj,
Nagpur.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through P.S.O. P.S.
Butibori, Dist. Nagpur.
2. Kamal Ahmed @ Naushad s/o Mohd.
Jalin, Aged about 37 years, Occ.: Private,
R/o Near Kumbhare Complex,
Warispura, Tah. Kamptee, Dist. Nagpur.
3. Mohd. Isteyaque s/o Mohd. Ashfaq, Aged
about 32 years, Occ.: Private, R/o Imli
Bara, Galib Road, Kamptee, Distt.
Nagpur.
4. Salman s/o Samar Qureshi, Aged about
29 years, Occ.: Private, R/o. H. No.947,
Kamal Colony, Kamgar Nagar, Dist.
Nagpur.
5. Saddam Hussein s/o Abdul Manan
Qureshi, Aged about 24 years, Occ.:
Private, R/o H.No.787, Kamal Colony,
Kamgar Nagar, Dist. Nagpur.
KHUNTE
::: Uploaded on - 17/07/2021 ::: Downloaded on - 17/07/2021 23:21:53 :::
2/7 31-WP687.20-Judgment
6. Wakar Ahmed Qureshi, Aged about 30
years, Occ.: Private, R/o Bhaji Mandi,
Kamptee, Dist. Nagpur.
-------------------------------------------------------------------------------------------
Mr. R.M. Daga, counsel for the petitioner.
Ms Shamsi Haider, APP for the respondent No.1.
None for the respondent Nos.2 to 6.
-------------------------------------------------------------------------------------------
CORAM : MANISH PITALE, J.
DATE : 15.07.2021.
ORAL JUDGMENT
2. Hearing was conducted through video conferencing
and the learned counsel agreed that the audio and visual
quality was proper.
3. Heard.
4. Though the respondent Nos.2 to 5 are served on
merits, they chose not to appear before this Court in the
present writ petition. The writ petition is heard finally.
5. By this petition, the petitioner is challenging order
dated 11/11/2020 passed by the Court of Judicial Magistrate
KHUNTE
3/7 31-WP687.20-Judgment
First Class, Court No.10, Nagpur, whereby the said Court has
rejected an application filed on behalf of the petitioner under
the provisions of the Prevention of Cruelty to Animals Act,
1960 read with provisions of the Prevention of Cruelty to
Animals (Care and Maintenance of its Property of Animals)
Rules, 2017, as also provisions of the Code of Criminal
Procedure.
6. This Court while admitting the petition granted
interim relief in terms of prayer clause-(c), thereby directing
continuance of custody of 22 cattle with the petitioner during
pendency of the litigation. It was also recorded that the
respondent No.6 was not served, but the said respondent had
not appeared even before the learned Trial Court.
7. In the order dated 15/06/2021, this Court recorded
the statement of the learned APP that the respondent No.6 i.e.
original accused is absconding.
8. In this backdrop, the present writ petition is taken
for consideration.
9. Mr. R.M. Daga, learned counsel appearing for the
KHUNTE
4/7 31-WP687.20-Judgment
petitioner, submitted that in the present case, the Magistrate
had erred in reaching the conclusion that the reliefs sought by
the petitioner in it's application before the Magistrate could not
be granted, because the Court of Magistrate is not vested with
powers to grant such reliefs. It is submitted that the approach
adopted by the Magistrate was erroneous and that therefore,
the present writ petition deserves to be allowed and the matter
needs to be remanded to the Magistrate for consideration of
the application filed on behalf of the petitioner on merits.
10. Ms Shamsi Haider, learned APP appearing for the
respondent No.1, has not objected to the said prayer, in the
backdrop of the stand taken on behalf of the State before the
Magistrate in respect of the reliefs sought in the application
filed by the petitioner.
11. In the present case, an offence was registered against
the accused persons under the provisions of the aforesaid Act
as also the provisions of the Maharashtra Animal Preservation
Act, 1976, Section 109 of Indian Penal Code and various
provisions of the Motor Vehicles Act, 1988. It was alleged that
22 cattle were being illegally transported by the accused
KHUNTE
5/7 31-WP687.20-Judgment
persons for slaughtering and that the animals were being
treated in a cruel manner. As per the provisions of the
aforesaid Act, the custody of the animals was handed over to
the petitioner, being a Gaushala.
12. It is in this backdrop that the petitioner moved the
aforesaid application at Exhibit-1 before the Court of
Magistrate seeking various reliefs, including an order for
continuance of custody of 22 cattle, as also a direction to the
accused and the owners of the seized cattle and vehicle to pay
cost towards the care and treatment and maintenance of the
aforesaid cattle at specific rates and for holding the vehicle
involved in the incident as security till final disposal of the
case. The said application was filed under the provisions of the
aforesaid Rules of 2017 read with the provisions of the
Criminal Procedure Code and the Maharashtra Animals
Preservation Act, 1976.
13. A perusal of the aforesaid Rules of 2017 would show
that Rules 3, 4 and 5 provide for the specific reliefs claimed on
behalf of the petitioner before the Magistrate. It is in this
backdrop that the learned APP, who had appeared for the
KHUNTE
6/7 31-WP687.20-Judgment
respondent-State before the Magistrate, had specifically stated
that it would be proper to allow the application in view of Rule
4 of the aforesaid Rules of 2017. In fact, the reply on behalf of
the State before the Magistrate also supported the said
position.
14. Yet, in the impugned order, the Magistrate held that
it did not have any power to grant the reliefs claimed on behalf
of the petitioner. While doing so, the Magistrate referred only
to the provisions of the Criminal Procedure Code, particularly
Sections 451 and 457 thereof, pertaining to orders to be
passed for custody and disposal of the property pending trial
and procedure by Police upon seizure of property. The
Magistrate completely lost sight of the provisions of the
aforesaid Act of 1960 and the Rules of 2017 framed
thereunder. If only the said provisions of the said Act and the
Rules were taken into consideration in the correct perspective
by the Magistrate, the application filed by the petitioner would
not have been dismissed on the ground that the Court of
Magistrate did not have power to decide such application. A
perusal of the said Act and the Rules indicates that the Court of
KHUNTE
7/7 31-WP687.20-Judgment
Magistrate certainly has power to pass appropriate orders,
particularly when Rules 3, 4 and 5 of the aforesaid Rules of
2017 specifically empower the "Magistrate" to pass appropriate
orders.
15. In view of the above, the writ petition is partly
allowed. The impugned order is quashed and set aside. The
matter is remanded to the Court of concerned Magistrate at
Nagpur to decide the application filed on behalf of the
petitioner at Exhibit-1 bearing M.C.A. No.2996 of 2020, afresh
on its own merits.
16. In the facts and circumstances of the present case,
the interim order regarding continuance of custody of the
cattle with the petitioner shall continue to operate till the
aforesaid application is decided on merits by the concerned
Magistrate at Nagpur.
17. The writ petition is disposed of accordingly.
JUDGE
KHUNTE
