Bhupendrakumar Jalubhai Rathwa vs State Of Gujarat
2023 Latest Caselaw 3363 Guj

      R/SCR.A/3764/2022                                       ORDER DATED: 26/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 3764 of 2022
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                     BHUPENDRAKUMAR JALUBHAI RATHWA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DEEP D VYAS(3869) for the Applicant(s) No. 1
ARBAAZKHAN A PATHAN (9532) for the Respondent(s) No. 2
MOHAMADZAID I SAIYED(8411) for the Respondent(s) No. 2
MR M. H. BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                    Date : 26/04/2023
                                     ORAL ORDER

Rule. Learned APP waives Rule for the Respondent State.

1. The petitioner has challenged order dated 03.12.2021 passed by the Auxiliary Chamber Judge, Court No.19, Civil Civil and Sessions Court, Ahmedabad City in Criminal Revision Application No.136 of 2021 as well as order dated 18.02.2020 under the application for Muddamal Sabarmati PO. STI.175 of 2019 by the Additional Chief Metropolitan Magistrate, Court No.12, Ahmedabad.

2. The brief facts of the present case are that FIR being C.R. No.I-175 of 2019 was registered before the Sabarmati Police station for the offence punishable under section 308, 186, 323, 294(KH), 506(1) and 114 of the IPC alongwith section 135 and

R/SCR.A/3764/2022 ORDER DATED: 26/04/2023

90(A) of the Gujarat Police Act and under sections 11(1)(H)(1) of the Prevention of Cruelty to Animals Act.

2.1 The Respondent no.2 had preferred application before the Metropolitan Magistrate, Ahmedabad for release of 17 cattle's seized in connection with the aforesaid complaint. It was alleged that the animals were given identification by the government records and while claiming to be owners, the application was preferred under section 451 read with section 457 of the Cr.P.C., for releasing the same and handing him the custody. The said application was granted by an order dated 18.02.2020. Being aggrieved by the said order, the petitioner had approached the learned Sessions Court by filing Criminal Revision Application No.136 of 2021 and the learned Sessions Court has confirmed the order of releasing the livestock and handing over the custody in favour of the original muddamal owner vide order dated 03.12.2021. Hence, the petitioner has preferred the present petition.

3. Heard learned advocate for the petitioner and learned APP for the respondent State.

4. Learned Advocate for the petitioner has submitted that with a view to mitigate maintenance and also problem faced, the impounded cattle's are

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kept at cattle pounds facility and the cattle's is in question were kept between 22.11.2019 to Jan- 2020-Feb-2020 for a period of about 75 days and thereafter with the aid of authorized and recognized public charitable organization like Shree Mumbai Jiv Daya Mandali (The Bombay Humanitarian Leage. Est. 1910. Regd. No. f- 164(Bomb) 23.03.1953) being a pious and pioneer organization working for the recognized and certified by the governmental authorities. He also submitted that several incidents have also occurred, wherein even in past actions were taken for feeding the cattle's in a high-handed manner from the panjrapoles. He also submitted that while the person claims to be in milking business, neither independent proof of husbandry alongwith the cattle's are produced before the trial court, nor any conditions are placed against the parties for periodic reports of the registered animals through the authorized veterans before the Court, more particularly where the owner of his agent has not claimed cattle within the time prescribed under Bombay Police Act, 1951. The owner or his agent has further not claimed cattle within the time prescribed under sections 14 of the Cattle Trespass Act, 1971 or has made payment of fine and charges for impounded cattle.

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4.1 He further submitted that the order passed is against the settled principles of law and is in non-consideration of oral and documentary evidence before the court. The court ought to have appreciated that even on the aspects of maintenance of animals the Central Government has recently enacted the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, wherein it has been provided that the animal owner has to pay the Panjrapole the cost of maintenance by way of the bond or in amount to the expenses. He also submitted the impugned order has been passed without granting valid and cogent reasons adjudicating on the issue involved in the proceedings. It is submitted that the conclusions given is on the basis of misinterpretation of evidence on record and therefore, order deserves to be interfered with.

5. Per contra, learned APP has heavily opposed and placed reliance upon the judgment dated 18.12.2017 passed by Co-ordinate Bench of this Court in case of Jhala Ghanshyamsingh Mobatsingh vs. State of Gujarat in Special Criminal Application No. 9745 of 2017. Learned APP further contended that the order passed by the learned trial Court is just and proper.

R/SCR.A/3764/2022 ORDER DATED: 26/04/2023

6. Having heard the arguments advanced by both the sides, while determining the other issues raised by the learned APP with reference to judgments of this Court and judgment dated 18.12.2017 in case of Jhala Ghanshyamsingh Mobatsingh vs. State of Gujarat and other provisions of the said Act and referring to that and the issues to be determined in future in appropriate proceedings being contentious issue, this Court is not inclined to enter into that arena in the present matter and instead exercised powers vested under Articles 226 and 227 of the Constitution of India. There is no dispute that the livestock belongs to the applicant and they were kept in panjrapole and out of total 17 animals 4 were died and in that regard impugned FIR was also registered on 22.11.2019. It further appears from the observation of the learned Metropolitan Court that since some of the animals were died when they were in the custody of panjrapole and they were sized in connection with the impugned FIR and it also appears that no cruelty as such administered to those animals.

7. Therefore, without going into the merits, there being concurrent findings of facts recorded by the both the Courts, this Court is not inclined to interfere with the same while exercising its

R/SCR.A/3764/2022 ORDER DATED: 26/04/2023

supervisory jurisdiction under article 227 of the Constitution of India. However, the Corporation is hereby directed to handover the custody of livestock seized by them to the original owners within a period of 15 days from today as per the order dated 03.12.2021 passed in Criminal Revision Application No.136 of 2021.

7.1 In that view of the matter, the petition being devoid of merits, deserves to be dismissed and is accordingly dismissed. Rule is discharged.

(SAMIR J. DAVE,J) MEHUL B. TUVAR