Madras High Court
Ginjala Naga Appala Raju vs State Rep By Its on 2 February, 2022
Crl.R.C.No.73 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.73 of 2022
Ginjala Naga Appala Raju ... Petitioner
Vs.
State rep by its
The Inspector of Police,
Avinashi Police Station,
Tirupur District.
Crime No.834 of 2021. ... Respondent
PRAYER: The Criminal Revision Case is filed under Section 401 r/w
397 of the Code of Criminal Procedure, to call for the entire records
comprised in Crl.M.P.No.2057 of 2021 in Crime No.834 of 2021 and set
aside the order dated 19.08.2021 made by the learned Judicial Magistrate,
Avinashi, Tirupur District and direct to release the 33 Nos of Buffalo
(Cow).
For Petitioner : Mr.Vimal B.Crimson
For Respondent : Mr.L.A.J.Selvam,
Government Advocate [Crl. Side]
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1/10
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Crl.R.C.No.73 of 2022
ORDER
(The case has been heard through Video Conferencing)
This Criminal Revision Petition has been filed by the
petitioner/property owner seeking to the set aside the order dated
19.08.2021 made by the learned Judicial Magistrate, Avinashi, Tirupur
District in Crl.M.P.No.2057 of 2021 dismissing the petition filed under
Section 451 r/w 457 Cr.P.C seeking interim custody of the cattles.
2. The brief facts of the case is as follows :-
On information during the regular vehicle check up at 6.00. p.m near
Thekkkalur S.P.Apperals Company, the Sub-Inspector of Police, Avinashi
intercepted the lorry bearing Reg.No.AP-26-X-5688 and found 33 Cattles
were loaded in it and transported from Thanjavur to Pollachi without
proper ventilation, food and without any medical certificate. A case has
been registered in Crime No.834/2021 for the offence U/S
11(1)(a),11(1)(d),11(1)(h) of Prevention of Cruelty to Animals Act,1960,
Sec.429, 511 of IPC and under Section 177 of Motor Vehicles Act. The
seized cattles were entrusted with M/S Indhu Dharmaseva Trust, which
runs a Kabilainandi Gosalai. The petitioner had filed Crl.M.P.No.2057 of
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Crl.R.C.No.73 of 2022
2021 before the Judicial Magistrate, Avinashi, seeking interim custody of
the above said cattles and the same was objected by Kabilainandi Gosalai
by filing intervening petition in Crl.M.P.No.2194 of 2021 and also filed
Crl.M.P.No.2146 of 2021 seeking interim custody of cattles.
3. The learned Judicial Magistrate relying on the judgment of this
Court in the case of Naseerulla Vs Inspector of Police, Connoor &
another (Crl.R.C.No.777 of 2010 dated 14.03.2013), dismissed the
petition filed by the petitioner stating that he has not filed any documents
to prove his ownership and allowed the petitions filed by Kabilainandi
Gosalai, against which the present revision has been filed.
4. Learned counsel appearing for the petitioner would submit that
petitioner purchased 33 Cows(Buffaloes) in a Cattle market and
transported it in a lorry having top open for ventilation from Thanjavur to
Pollachi via Coimbatore for agricultural and farming purpose and the
cattles were provided with adequate fodders. While enroute the respondent
had intercepted the vehicle and registered a case and had seized the cattle.
He would submit that the cattles are now retained at Kabilainandi Gosalai.
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Crl.R.C.No.73 of 2022
He would submit that the petitioner being the owner, maintained the cattles
properly and transit them as per the rules. The petitioner is unable to use
them in his cattle farm.
5. The learned counsel would further submit that the petitioner being
the owner of the cattle has not committed any cruelty to the animals, he
had handed over the animals for transporting from Thanjavur to Pollachi
and it was transported in violation of provisions of Prevention of Cruelty to
Animals Act without the knowledge of the petitioner. The petitioner has
not been found guilty for the offence under the Act earlier and he has not
suffered any conviction. The petitioner undertakes that the cattle will be
maintained properly and will not be subjected to cruelty and the petitioner
is prepared to produce them either before the respondent or before the
Court as and when required for and he is also prepared to furnish adequate
surety for the same.
6. He would also submit that there is no legal bar for returning the
cattle to the owner of the cattle. He would further submit that in similar
matters, the Courts have, while deciding whether the interim custody of the
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Crl.R.C.No.73 of 2022
animals can be given to the owners who is facing prosecution has found
the following factors to 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."
7. The learned counsel would further submit that in the similar
circumstances, the Gujarat High Court in Spl.Crl.A.No.8243 of 2020
dated 06.05.2021 had ordered release of cattle in favour of the owner
imposing certain conditions.
8. Mr.L.A.J.Selvam, learned Government Advocate (crl.side) would
submit that the lorry bearing Reg.No.AP-26-X-5688 was intercepted by
the respondent/police and it was found transporting 33cows (female
buffaloes) in violation of provisions of Prevention of Cruelty to Animals
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Crl.R.C.No.73 of 2022
Act, 1960. He would submit that on enquiry, the driver had stated that the
cattle belongs to the petitioner and they were transported from Thanjavur
to Pollachi to the cattle farm of the petitioner.
9. Heard the learned counsels and perused the materials available on
record.
10. Since, it was found that 33cows (buffaloes) were transported in
a congested manner in violation of the provisions of the Prevention of
Cruelty to Animals Act, 1960, the respondent has registered a case. The
petitioner had filed application for return of cattle and the learned
Magistrate relying on the judgment in the case of Naseerulla Vs
Inspector of Police, Connoor & another had dismissed the application. It
is also stated by the petitioner that due care of the cattle will be taken by
him and they will be produced before the respondent or before the Court as
and when required for.
11. In the case of Manager, Pinjrapore Deudar and another v.
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Crl.R.C.No.73 of 2022
Chakram Moraji Mat and others reported in (1998) 6 SCC 520 the
Hon'ble Apex Court has held "In a case where the owner is claiming the
custody of the animal, the 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 the
pinjrapole is with the laudable object of preventing unnecessary pain or
suffering to animals and providing protection to them and birds. But it
should also be seen: (a) whether the pinjrapole is functioning as an
independent organization or under the scheme of the Board and is
answerable to the Board; and (b) whether the pinjrapole has a good
record of taking care of the animals given under its custody. A perusal of
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Crl.R.C.No.73 of 2022
the order of the High Court shows that the High Court has taken relevant
factors into consideration in coming to the conclusion that it is not a fit
case to interfere in the order of the learned Additional Sessions Judge
directing the State to hand over the custody of the animals to the owners."
12. In this case as stated above, the petitioner is the owner of 33
cows (female buffaloes), he had handed it over to the transporter for
transporting it from Thanjavur to his cattle farm in Pollachi. The cattle
have been transported in violation of the provisions of Prevention of
cruelty to Animals Act without the knowledge of the petitioner, the
petitioner has not suffered any previous conviction. The cows are not
taken for slaughtering and they have been taken to the farm of the
petitioner at Pollachi. The petitioner has agreed to file an affidavit of
undertaking that the animal will not be subjected to cruelty and they will
be produced before the trial Court as and when required.
13. In such circumstances, this Court is of the opinion the learned
Magistrate can be directed to handover the interim custody of the cattle 33
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Crl.R.C.No.73 of 2022
cows (buffaloes) to the petitioner on certain conditions. Accordingly, the
Criminal Revision Petition is allowed and the impugned order, dismissing
the petition for return of property in Crl.MP.No.2057 of 2021, dated
19.08.2021, passed by the learned Judicial Magistrate, Avinashi, Tirupur
District, is hereby set aside and that the interim custody of the cattles (33
buffaloes) shall be handed over to the petitioner, subject to the following
conditions:
(i)The petitioner shall execute a bond for a sum of Rs.75,000/-
with two sureties for a like sum to the satisfaction of learned
Judicial Magistrate, Avinashi, Tirupur District.
(ii)The petitioner shall take individual photographs of the Cows
(33 buffaloes) and hand it over to the Magistrate.
(iii)The petitioner is further directed to file an affidavit of
undertaking that the cattle will be maintained properly and will
not be treated cruelly and it will be transported in a safe
manner and used only for agricultural purpose and if
A.D.JAGADISH CHANDIRA,J.
Vri/shk
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Crl.R.C.No.73 of 2022
necessary they will be produced before the learned Magistrate
or before the respondent as and when required or either during
investigation or during trial.
14. With the above direction, the criminal revision stands allowed.
02.02.2022
vri/shk
To
1. The Judicial Magistrate, Avinashi, Tirupur District.
2. The Inspector of Police,
Avinashi Police Station,
Tirupur District.
Crime No.834 of 2021.
Crl.R.C.No.73 of 2022
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