Orissa High Court
Gau Gyan Foundation 'Rudrashram vs The State Of Odisha And Another on 7 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMC No.1192 of 2022
Gau Gyan Foundation 'Rudrashram .... Petitioner
Gaushala'
Mr. Vinay Saraf, Advocate & Associates
Mr. Nilaya Kanta Rout, Advocate
-Versus-
The State of Odisha and Another .... Opposite Parties
Mr. S.S. Mohapatra, ASC
Mr. Sk. Zafarulla, Advocate for O.P. No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:07.02.2023
1.
The petitioner has preferred the instant petition assailing the
legality and judicial propriety of the impugned order dated 26th
April, 2022 passed in Criminal Revision No.11 of 2022 by the
learned Sessions Judge, Bhadrak confirming the order dated 8th
April, 2022 of the learned S.D.J.M., Bhadrak in Misc. Case No.75
of 2022 whereby release of the cattle was allowed in favour of
opposite party No.2 on the grounds inter alia that the same is not
tenable in law and hence, deserves to be interfered with and
quashed with the consequential directions issued as the nature and
circumstances of the case may require in exercise of the Court's
inherent jurisdiction.
2. It is contended by the petitioner that Bhandaripokhari P.S.
Case No.94 of 2022 was registered under Sections 379 and 411
read with 34 IPC, Section 11(1)(a),(d) & (f) of the Prevention of
Cruelty to Animals Act,1990 (hereinafter referred to as 'the PCA
Act') and Section 7 of the Orissa Prevention of Cow Slaughter
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
Act,1960 and in that connection, some cattle were rescued while
being transported in a goods carrier vehicle bearing registration
No.AP-16-TJ-24849 for the purpose of illegal slaughtering without
proper care and arrangement of water, food and medical aid. It is
further contended that the local police handed over the cattle to
the petitioner for immediate care and maintenance as they were
in extremely weak and miserable condition and during that time,
no health inspection, identification and marking of such animals
was conducted as per Rule 3(a) of the Prevention of Cruelty to
Animals (Care and Maintenance of Case Property Animals) Rules,
2017 (in short 'the Rules'). In the meantime, according to the
petitioner, opposite party No.2 filed Misc. Case No.75 of 2022
(Annexure-5) before the court of the learned S.D.J.M., Bhadrak
for release of the cattle in his favour claiming himself as its owner
and therein an intervention application/objection (Annexure-6)
was filed by them, however, despite such an intervention, order
dated 8th April, 2022 was passed releasing the seized cattle and
custody in favour of the applicant and being aggrieved of and
dissatisfied, Criminal Revision No.11 of 2022 was filed before the
learned Sessions court which however yielded no result leading to
the passing of the impugned order dated 26th April, 2022
(Annexure-3).
3. Heard Mr. Saraf, learned counsel for the petitioner, Mr.
Mohapatra, learned counsel for the State and Mr. Zafarulla,
learned counsel for opposite party No.2.
4. Mr. Saraf, learned counsel for the petitioner submits that the
impugned order under Annexure-3 confirming release of the
cattle allowed by the court of 1st instance vide Annexure-10 is
illegal, unjust and against the spirit of law and without judicial
application of mind and therefore, it is liable to be set aside. It is
contended that the impugned order under Annexure-3 has
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
defeated the objects of various animal welfare laws and failed to
ensure the safety of the cattle which needed proper care and
management. According to Mr. Saraf, the provisions of Sections 11
and 35 of the PCA Act have not been taken cognizance of by the
learned courts below and order under challenge is also contrary
and not in confirmity with Rules 3, 4 and 5 of the Rules. It has
been forcefully argued by Mr. Saraf that the PCA Act is a special
enactment with provisions towards care and custody of seized
animals during the pendency of the litigation and as a matter of
fact, Rules 3 and 4 of the Rules are to be read carefully with a
purposive interpretation and it is axiomatic that during the
pendency of the litigation, custody of the animals seized has to be
given to an infirmary, pinjrapole, SPCA, Animal Welfare
Organization or Gaushala and therefore, in the present case, the
cattle could not have been released in favour of opposite party
No.2 and hence, the same cannot be sustained in law. While
contending so, Mr. Saraf relied upon the following decisions, such
as, Laxmi Narain Modi Vrs. Union of India (UoI) and Others
(2013) 10 SCC 227; Dhyan Foundation Vrs. The State of Assam
and Others (decided in Criminal Petition No.452 of 2020 and
disposed of on 21st September, 2020); State of U.P. Vrs.
Mustakeem and Others (Criminal Appeal Nos.283-287 of 2002
dated 22nd February, 2002) and host of authorities. Mr. Saraf,
learned counsel for the petitioner further submits that the Apex
Court in Manager, Pinjrapole Deudar and Another Vrs. Chakram
Moraji NAT & Others AIR 1998 SC 2769 misread the provisions
dealing with interim custody in juxtaposition to
confiscation/forfeiture as the Rules only prescribed custody of
animals as a temporary measure pending litigation, inasmuch as,
the petitioner did not claim any ownership rights over the cattle
or its confiscation which can only be considered at the time of
conclusion of trial. The provisions, such as, Rule 5 of the Rules
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
with regard to the liability of the owner of the cattle to deposit
the expenses towards its daily sustenance and the Circular dated
3rd May, 2008 issued by the Animal Welfare Board of India have
been drawn to the attention of the Court by Mr. Saraf while
explaining the purpose and objective of the PCA Act and Rules
framed thereunder contending that impugned order under
Annexure-3 is palpably wrong, perverse and therefore, liable to
be set aside.
5. On the other hand, Mr. Zafarulla, learned counsel for opposite
party No.2 justified the impugned order under Annexure-3
confirming the order under Annexure-10 and release of the seized
cattle in favour of opposite party No.2 as he had purchased and
was transporting it in a vehicle to a registered firm in the name
and style of 'Faizan Diary Firm' in support of which necessary
proof was submitted. It is contended that there has been due
compliance of the provisions of the Rules and as the cost was
deposited by opposite party No.2 in the account of the petitioner
towards expenses incurred in the maintenance of the cattle from
the date of taking its zima and on execution of indemnity bond
with other conditions, such release was directed by the learned
S.D.J.M., Bhadrak which was rightly confirmed in revision and
therefore, the impugned order under Annxure-3 calls for no
interference.
6. Heard the viewpoint of Mr. Mohapatra, learned ASC.
7. The aim and objective of the PCA Act is to prevent infliction of
unnecessary pain or suffering on the animals and for that,
necessary provisions have been made therein and under the Rules.
Section 11 of the PCA Act deals with the punishment in case
animals are treated with cruelty. Section 35 of the said Act relates
to the manner in which the animals are to be treated and cared
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
for by the orders of the Court. In confirmity with the objective of
the law, procedure is in place with regard to the custody of
animals pending litigation, cost of care and keeping of such
animals and also the liability of the accused owner who are to
execute bond and to bear the expenses to be borne for the
maintenance and upkeeping of the animals besides its transport,
maintenance and treatment based on the inputs provided by the
jurisdictional Veterinary officer and failing to do so, its forfeiture
to the infirmary, pinjrapole, SPCA, Animal Welfare Organization
or Gaushala as the case may be.
8. Learned S.D.J.M., Bhadrak considering the claim of opposite
party No.2 that the cattle were being transported to a diary firm
after having been purchased on payment of due consideration
and deposit of an amount of Rs.54,000/- in the account of the
petitioner towards the cost and maintenance borne while having
its zima directed release and custody of the seized cattle in his
favour being the owner and person entitled to its possession as an
interim measure pending litigation which was found favour with
the learned Sessions court which while referring to the case of
Manager, Pinjrapole, Deudar (supra), which is to the effect that
when the owner is claiming custody of the animals, pinjrapole has
no preferential right in the matters of interim custody, reached at
a decision that the same is inconsistent with Rule 3(b) of the Rules
which provides only the Magistrate, the authority in that regard
to retain it in the infirmary, pinjrapole, SPCA, Animal Welfare
Organization or Gaushala and while concluding so, preferred the
PCA Act over the Rules citing the judgment of Ispat Industries
Limited Vrs. Commissioner Customs, Mumbai 2006 (9) SCALE
652 which relates to interpretation vis-à-vis the provisions of the
Act and Rules and the former to prevail upon the latter when the
same is ultra vires to the Act.
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
9. As to the PCA Act, the law is with regard to ensuring the
animals, a proper care and treatment and dealing with its cruelty
and the provisions to prevent the same and also the penal
consequences. The aim and object of the Act is to intervene in the
cases of exploitation of the animals, when they are being treated
with cruelty. In fact, what would be cruelty in a given fact
situation has been described in Section 11 of the PCA Act carrying
the punishment for the same. The Act does not prescribe any
specific bar against interim release and custody of the animals
rescued and recovered in favour of its owner. In fact, authority
has been provided to a Magistrate to detain the cattle at an
infirmary, pinjrapole, SPCA, Animal Welfare Organization or
Gaushala which is discretionary in nature in view of Rule 3(b) of
the Rules, a provision related to custody of such animals pending
litigation. Furthermore, the accused and the owner shall have to
execute a bond of a determined value with surety and in case, the
same could not be furnished, the animals shall be forfeited to the
infirmary, pinjrapole, SPCA, Animal Welfare Organization or
Gaushala as revealed from Rule 5 of the Rules. The accused and
the owner of a transport vehicle and all others and any of the
parties involved shall be jointly and severally liable for the cost of
transport, treatment and care of the animals as per sub-rule (5) of
Rule 5 of the Rules. The scheme of the PCA Act is to provide
proper care and treatment to the animals when the accused and
such other persons are guilty of its cruelty. The Act and Rules also
make provisions and pave the way for discharge of animals if
ultimately found fit and certified by the jurisdictional Veterinary
officer. According to the Court, during the intervening period
when the litigation is before the court, interim custody may be
decided either in favour of the owner or such other persons
including a Gaushala, if it is not incorrect with the conclusion
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
deduced from on a sincere reading of the provisions of the PCA
Act and the Rules.
10. In what manner, the animals when ill-treated and orders to be
passed by a court, as earlier mentioned, is dealt with in Section 35
of PCA Act. Mr. Saraf, learned counsel for the petitioner also
referred to the Transport of Animals Rules, 1978 and Amendment
Rules, 2001 in respect thereof in order to apprise the Court the
manner of transportations of animals like dogs, cats, monkeys
etc., such rules having been framed in exercise of powers under
Section 38(2)(h) of PCA Act by the Central Government. The
purpose of highlighting upon the above provisions is that animals
are to be treated without cruelty in a manner while being housed,
transported and also disposed of in the manner specified under
the Rules. In fact, provisions have been made towards disposal of
the animals only if they are found fit after being rescued or on a
satisfaction certified by the jurisdictional Veterinary officer that
the animals do not suffer from any disease but by the orders of
the court. At the same time, the purpose of PCA Act is not to
detain animals for long and the provisions are in place to ensure
its disposal provided they are fit and unlikely to be subjected to
cruelty. To say that, the owner is not entitled to take custody of
the animals or deprive him of such custody pending litigation, in
the considered view of the Court, is not envisaged in the PCA Act
which is a law enacted with an intent and purpose to prevent
cruelty to animals which may be denied only upon satisfaction
that it could again be met with cruelty.
11. In so far inconsistency in Rule 3(b) vis-à-vis Section 35 of PCA
Act is concerned, the learned Sessions court held it so after
referring to the decision in Manager, Pinjrapole, Deodar (supra).
The said rule, whether, ultra vires to Section 35(2) of PCA Act,
according to Mr. Zafarulla, learned counsel for opposite party
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
No.2 is beyond the consideration of the Court which can only be
challenged invoking its writ jurisdiction. The Court, however,
with due respect does not find any such conflict since because by
such provisions, the Magistrate has been provided the power to
deal with animals and may direct it to be housed at infirmary,
pinjrapole, SPCA, Animal Welfare Organization or Goshala and
may even direct disposal and its destruction, if found to be
suffering from incurable disease. Both the provisions are to be
read in harmony so as to advance the objective of the PCA Act.
Section of 29 of the PCA Act no doubt deprives the owner of the
animal from receiving it in the event of his conviction. However,
to read into it, the bar or prohibition against interim release or
custody during the pendency of litigation would be too far to
stretch. Such disposal of animals in view of Section 29(1) of the
PCA Act shall be made provided the owner has a previous
conviction, or as to the character of the owner is such that if it is
left with him likely to be exposed to further cruelty (italicized by
the Court to emphasize). On a meticulous reading of the above
part of the provision highlighted, it leads to a conclusion that the
animals may even be released in favour of the owner despite a
conviction if there is no previous antecedent or he does not have
any such past conduct or official record of his character which
may influence the court not to handover the animals as there may
be a possibility of being further exposed to cruelty. Nowhere, the
statute prescribes restriction against release of animals in favour of
the owner either during the pendency of the litigation or even in
the event of conviction of the owner unless a case is made out as
per Section 29(2) of the PCA Act. Rule 8(1) of the Rules that upon
the accused convicted or pleaded guilty to be deprived of
ownership of the animal shall have to be read conjointly with
Section 29 of the PCA Act and in case of deprivation, the
Magistrate may pass orders as to its forfeiture to the infirmary,
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
pinjrapole, SPCA, Animal Welfare Organization or Gaushala
already having custody for proper adoption or other means of
disposition. Therefore to claim that there is an absolute bar
against interim release of the animals in favour of the owner
pending litigation or at the end of trial on conviction is not to be
assumed which is also not contemplated in the PCA Act and
Rules. Rather discretionary power has been conferred on the
Magistrate to deal with such release of animals depending on the
facts and circumstances of each particular case and may even
exercise the jurisdiction to direct its release in favour of the owner
even though he is prima facie responsible for treating the animals
in a manner which amounts to cruelty under the PCA Act on a
subjective satisfaction that such release is unlikely to subject the
animals to further cruelty. In Laxmi Narain Modi (supra), the
Supreme Court had the occasion to deal with the performance of
the Committees constituted for implementation of the Legislations
with regard to the transportation of animals, maintenance of
slaughter houses etc. as per the guidelines framed by Ministry of
Environment and Forest (MoEF) and therein extracted the
manner in which the animals is to be transported while even
being taken to the slaughter houses. The main objective of the
guidelines is to ensure that the animals at the time of
transportation to the slaughter houses and while being kept
thereat are not treated with cruelty. So, therefore, what emerges
from such regulations is that the animals are to be properly
treated with care and disposed of without being any cruelty
suffered by them. Mr. Saraf, learned counsel for the petitioner
referred to the decision in Dhyan Foundation and Raghuram
Sharma(supra) to contend that the disposal of the animals in
favour of the petitioner in the present case could not have been
allowed. But, in the humble view of the Court, said decision is
not an authority to say that animals are not to be released, as in
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
that case, the earlier order was reviewed and that too without
giving an opportunity to the Zamidar. In Raghuram Sharma and
Another Vrs. C. Thulsi and Another (Criminal Appeal No. 230 of
2020 disposed of on 5th February, 2020), the Apex Court
declined custody of the cattle by the accused considering his
involvement and past conduct subject to being satisfied with the
profile of the interim custodian as well as after ensuring about the
identity of the cattle, etc. with directions for the trial court to
conclude the hearing within a stipulated time. Again it cannot be
held as an authority to conclude absolute bar against release in
favour of the accused owner. It entirely depends on the conduct
and character of the accused responsible for the cattle which
suffered cruelty in his hand and interim custody may be
disallowed if the court reaches at a conclusion that further cruelty
may result if they are to remain with him. The disposal of the
animals is not prohibited either at the instance of its owner and it
would amount to an offence and he would be punishable, if it
established that at the time of such disposal, such animals suffered
pain by reason of mutilation, starvation, thirst, overcrowding or
other ill-treatment. The judgment in Animal Welfare Board of
India Vrs. A. Nagaraja and Others (2014) 7 SCC 547 of the Apex
Court is an authority dealing with the case of cruelty subjected to
animals in the context of utilizing them in traditional sports, one
of such which is held at Jallikattu and other forms of Bull race
which causes considerable pain and stress to the animal. The
aforesaid decision is a legal classicus on the point wherein all the
aspects of the provisions of the PCA Act have been elaborately
discussed and deliberated upon keeping in view the International
Convention and declaration of the UN and expanded the
constitutional right to animals guaranteed under Article 21 of the
Constitution. There is no denial to the fact that animals are not
being treated fairly and at times disposed of with cruelty and
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
therefore, the law has been enacted and brought into force so as
to prevent it and also to penalize the persons responsible for the
same even though the accused is the owner. However, release or
otherwise of the animals either interim or final depends on the
conduct of the accused-owner and in case of previous conviction
or any such bad past conduct with a profile, such release may be
denied. In Krushi Goseva Sangh and Another Vrs. State of
Maharastra and Others 1988 Mh.L.J. 293, the Bombay High
Court held that since no provision is made in the Act (with
reference to Maharashtra Animal Preservation Act, 1977) and in
that case, held that recourse could be taken to Section 451 Cr.P.C.
for the custody and disposal of animals pending trial and the
competent court is expected to pass orders keeping in view the
object of the Legislation, inasmuch as, a direction cannot be issued
which may defeat the very object of the Act; that rather orders
should be for preservation and protection of the cow or
scheduled animals. So what is collated from the above discussion
is that if the Special statute does not prohibit interim release,
custody can be allowed in favour of the accused subject to a
condition that it must not be in derogation to the spirit of law. In
Jivdaya Pashupakhshi Saurakshan and Sanwardha Sanstha Vrs.
State of Maharastra MANU/MH/1200/2009 while dealing with
the custody of the bullocks seized being transported and denied
to the dealer who claimed for it, the Nagpur Bench of Bombay
High Court declined to release the animals in his favour as there
was nothing pointed to show that during its interim custody, the
appellant therein was found not taking care of the same. So many
other authorities have been relied upon by Mr. Saraf, learned
counsel for the petitioner which is no doubt informative and
enlightened the Court but it is of the view that no law is laid
down in any of the cases denying release or absolute ban for the
accused owner in taking custody of the animals during the
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
pendency of litigation. In Jiba Bikash Parishad Vrs. State of Odisha
and Another (CRLMC No. 199 of 2021 and batch of cases decided
on 21st October, 2021), this Court held that the provisions of the
PCA Act since have not been followed and also the provisions of
the rules framed thereunder interferred with the decision of the
revisional court and set it aside which had allowed the release of
the animals confirming the order of the court of first instance
exercising power under Section 451 Cr.P.C. There is no quarrel
over the position of law that the provisions of the PCA Act and
Rules are to be scrupulously followed and observed not in
deviation and to defeat and frustrate the purpose of the law but
to advance the spirit of law.
12. In the case at hand, opposite party No.2 claimed himself as
the owner of the cattle but was found to be transporting it in a
vehicle without proper care and treatment. The impugned order
suggests that opposite party No.2 had produced money receipt to
show the purchase of cattle on payment of consideration and also
having a dairy farm in support of which submitted its certificate of
registration and on ensuring a deposit of Rs.54,000/-, the animals
were released from custody. When the cattle were found to be
transported in the vehicle without care and proper treatment, the
learned S.D.J.M., Bhadrak should have called for a report or
enquired into the profile of opposite party No.2 as to if he is
having past misconduct or conduct of such nature and in case the
animals are released in his favour, whether, they would be treated
without cruelty, the aspect which was not duly examined and not
only that, proper verification and identification of the animals as
it seems was not carried out at any time before being handed
over to him. The purpose of the PCA Act demands such an
exercise to be undertaken not only at the end of trial but
presupposes it during pendency of litigation for the purpose of
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
interim release. The spirit of the PCA Act and the objective of the
law shall have to be understood and appreciated in its proper
perspective, at all stages of the proceeding, otherwise, any such
custody during the pendency of the litigation could further cause
cruelty to the animals which would certainly frustrate the purpose
for which it is enacted. In the instant case, all such due care and
caution was needed before release of the cattle in the custody of
opposite party No.2. So therefore the Court is of the view that
necessary conditions are required to be put in place so as to
ensure that the cattle are not subjected to cruelty while being in
the custody of the accused opposite party No.2. In other words,
with the interim arrangement in place, further directions are
necessarily to be issued, which run thus:
i) the learned court of first instance shall call for a report
from the local PS regarding the profile of opposite party
No.2 to ascertain his past and present conduct in dealing
with animals and also current status vis-a-vis cattle in
custody;
ii) to enquire about the credentials of opposite party No.2
about him running the diary firm where the cattle was
shifted and presently housed;
iii) to employ the means to ensure proper verification and
identification of the cattle and to enquire if any other
healthy animal(s) having been handed over to opposite
party No.2 in place of cattle while allowing interim release
and to pass orders of restoration, if necessary;
iv) to impose such other conditions as absolutely necessary
to ensure proper care and custody of animals whose
Gau Gyan Foundation 'Rudrashram Gaushala' Vrs. The State of Odisha & Another
disposal would be subject to the result in the proceeding
pending before it.
13. To carry out the above exercise, the proceeding in Misc. Case
No.75 of 2022 is directed to be restored in file and if the learned
S.D.J.M., Bhadrak reaches at a definite conclusion that the interim
release of the cattle has defeated the purpose or has not lived up
to the expectation it desired and as contemplated under the PCA
Act, he shall pass necessary orders just and expedient in the
interest of justice.
14. Accordingly, it is ordered.
15. In the result, the CRLMC stands allowed in part. As a
necessary corollary, the impugned order dated 26th April, 2022
passed in Criminal Revision No.11 of 2021 by the learned Sessions
Judge, Bhadrak is hereby interfered with and quashed to the
extent indicated above.
(R.K. Pattanaik)
Judge
UKSahoo/TUDU
