Uttarakhand High Court
People For Animals Uttarakhand vs Mustkim And Another on 24 May, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
C482 Application No. 878 of 2024
People for Animals Uttarakhand ........Applicant
Versus
Mustkim and Another ....Respondents
Counsel for the applicant : Mr. Dharmendra Barthwal, learned counsel
Counsel for the State : Mr. Saurabh Pandey, learned Brief Holder
Hon'ble Rakesh Thapliyal, J. (Oral)
By the instant C482 Application, the applicant which
is a Public Charitable Trust, is challenging the order dated
30.04.2024, passed by the Court of Sessions Judge,
Rudraprayag in Criminal Revision No. 3 of 2024, State of
Uttarakhand Vs. Mustkim, as well as the order dated
24.11.2023, passed by the Court of Judicial Magistrate,
Ukhimath, in Miscellaneous Criminal Case No. 53 of
2023, whereby the interim custody of mules was directed
to be handed over to the owner of the mules.
2. Learned counsel for the applicant submits that the
Judicial Magistrate, Ukhimath, District Rudraprayag,
while passing the impugned order dated 24.11.2023,
relied upon the judgment rendered by the Hon'ble Apex
Court in the case of Manager Pinjrapol Deudar & Anr.
Vs. Chakarm Moraji Nat & Ors. (1998) 6 SCC 520,
wherein it has been held that in view of the provisions of
Section 35 of the Prevention of Cruelty to Animals Act,
1960 and Section 451 of CrPC unless the owner of the
animal in respect of which he is facing prosecution, is
deprived of the custody which can be done only on his
conviction under the Act for the second time, no bar can
be inferred against him to claim interim custody of the
animal.
3. Learned counsel for the applicant submits that in
fact after the aforesaid judgment, the Rules were framed
i.e. The Prevention of Cruelty to Animals (Care and
Maintenance of Case Property Animals) Rules, 2017
which was published in the Gazette of India on
23.05.2017 and came into force on 23.05.2017 makes a
provision for the custody of animals pending litigation.
Rule 3 of the said Rules, 2017 is being reproduced herein
as below:-
"3. Custody of animals pending litigation.-- When
an animal has been seized under the provision of the
Act or the rules made thereunder--
(a) the authority seizing the animal shall ensure health
inspection, identification and marking such animal,
through the jurisdictional veterinary officer deployed at
Government Veterinary Hospital of the area and
marking may be done by ear tagging or by chipping or
by any less irksome advance technology but marking
by hot branding, cold branding and other injurious
marking shall be prohibited;
(b) the magistrate may direct the animal to be housed
at an infirmary, pinjrapole, SPCA, Animal Welfare
Organisation or Gaushala during the pendency of the
litigation."
4. He further submits that the Hon'ble Supreme Court
has passed a detailed order in the case of
Raguramsharma and another Vs. C. Thulsi and
Another, (2020) SCC OnLine SC 1325, in which the
Hon'ble Supreme Court held that the interim custody of
the animals/mules ought not to be handed over to the
accused. If the accused are finally found to be not guilty
then the issue of custody of the animals will be logically
dealt with in accordance with the concerned Rules or
Regulations but at this stage the accused are definitely
not entitled to interim custody of the cattle.
5. In reference to this, learned counsel for the
applicant placed reliance on 12, 13 and 14 of the said
judgment, which are also being reproduced herein as
below:-
"12. We are not arriving at any conclusions as regards the
basic facts and the allegations levelled against the accused
but if we go by the allegations in the FIR, the accused were
prima facie guilty of causing cruelty to the animals.
13. In such a case, the interim custody of the animals
ought not to be handed over to the accused. If the accused
are finally found to be not guilty then the issue of custody of
the animals will logically be dealt with in accordance with the
concerned Rules or Regulations but at this stage the accused
are definitely not entitled to interim custody of the cattle.
14. We, therefore, allow this appeal, set-aside the order
passed by the High Court and direct as under:
(a) Subject to being satisfied about the profile of the
present appellants as well as after ensuring about the
identity of the cattle, the custody of the concerned
cattle be allowed to be retained by the appellants; and
(b) The determination about the profile of the
appellants and identity of the cattle shall be carried out
in accordance with law, as early as possible.
(c) This interim arrangement shall be subject to the
final orders to be passed by the concerned Court in the
crime in question.
6. Learned counsel for the applicant further placed
reliance on another judgment of the Hon'ble Apex Court
in the case of Meher Banu Begum Vs. State of Assam
and another, (2022) SCC OnLine SC 1894, wherein
the Hon'ble Supreme Court, held that the question
whether the petitioner is entitled to custody of the cattle
would be decided based upon the decision in the trial.
7. In the present case, a First Information Report was
lodged on 27.08.2023, bearing FIR No. 0052 of 2023,
P.S. Sonprayag, District Rudraprayag, wherein the
respondent No. 1 Mustkim was implicated for the offence
punishable under Section 11 of the Prevention of Cruelty
to Animals Act, 1960 and Section 429 of IPC and the
allegation was in respect of two severely injured mules
were found plying goods.
8. Subsequently, an examination of the mules bearing
tag no. OIC 250000/181716 and OIC 250000/181771
were conducted by the Veterinary Officer at the
Veterinary Hospital Gaurikund on 27.08.2023, who
opined that the said mules have deep wounds as a result
of which their subcutaneous tissues have been damaged
and it was further opined that the mules are in unfit
condition to be used for yatra/carrying purposes. A copy
of the examination report is also annexed as Annexure
No. 3.
9. It is submitted by the learned counsel for the
applicant that thereafter present applicant which is a
Public Charitable Trust got interim custody of the mules
pursuant to order dated 25.09.2023 passed by the
Judicial Magistrate, Ukhimath, District Rudraprayag in
Miscellaneous Criminal Case No. 7 of 2023 and
Miscellaneous Criminal Case No. 8 of 2023, the orders
have also been annexed as Annexure-4.
10. It is submitted that both the mules are presently
housed for their care, treatment and maintenance at the
equine sanctuary run by the applicant No. 1 at Chharba,
Dehradun and owing to severely compromised health,
the mules have undergone extensive medical care. It is
submitted that the respondent No. 1 was challaned
pursuant to the FIR lodged on 27.08.2023.
12. Thereafter, respondent No. 1 moved an application
for release of two mules before the Judicial Magistrate,
Ukhimath, District Rudraprayag, bearing Misc. Criminal
Case No. 53 of 2023, which was allowed by the Judicial
Magistrate on 24.11.2023 and directed the interim
custody of two mules to the respondent No. 1.
13. It is submitted that while passing this order dated
24.11.2023, the learned Judicial Magistrate, neither have
gone through the Rules of 2017, nor the subsequent
judgement rendered by the Hon'ble Apex Court i.e. in the
case of Raguramsharma and another (supra) and
even the latest judgment of Hon'ble Supreme Court in
the case of Meher Banu Begum (supra) were not
considered at all and the Judicial Magistrate relied upon
the judgment rendered by the Hon'ble Apex Court in the
case of Manager Pinjrapole Deudar (supra) granted
the interim custody.
14. It is submitted that against the order passed by the
Judicial Magistrate, the State of Uttarakhand, respondent
No. 2 herein preferred a Criminal Revision No. 3 of 2024,
State of Uttarakhand Vs. Mustkim before the Revisional
Court, i.e. the Sessions Judge, Rudrapryag, however the
said Revision was dismissed on 30.04.2024.
15. It is submitted by the learned counsel for the
applicant that the present C482 Application has been
moved on behalf of the People for Animal Uttarakhand
which is Public Charitable Trust through the trustee Gauri
Maulekhi, who earlier filed WPPIL No. 79 of 2022 and the
issue of the conditions of the mules in District
Rudraprayag were highlighted by the petitioner in the
said PIL and various directions have been issued by this
Court.
16. Apart from this, the learned counsel for the
applicant submits that since by the order dated
25.09.2023, passed by the Judicial Magistrate, Ukhimath,
the interim custody of the mules were handed over to the
present applicant and now since by the order impugned
the interim custody of the mules has been ordered to be
given to the respondent No. 1, therefore, in the interest
of justice, the effect of these two impugned orders should
be stayed because by virtue of the judgment rendered by
the Hon'ble Supreme Court, the interim custody cannot
be given during pendency of trial and the issue of interim
custody has to be dealt with only after the final disposal
of the trial.
17. Mr. Saurabh Pandey, learned Brief Holder for the
State submits that the State filed the Revision which was
rejected by an order dated 30.04.2024 and the State is
also challenging the aforesaid order.
18. After taking into consideration all these aspects and
further taking into consideration the judgments rendered
by the Hon'ble Supreme Court, all these aspects are
required deliberations whether during the pendency of
the trial, the interim custody of the mules can be given to
the respondent No. 1 or not, for which the counter
affidavit is necessary.
19. Mr. Saurabh Pandey, learned Brief Holder accepts
notice for respondent No. 2. Issue notice to respondent
No.1. Learned counsel for the applicant shall take steps
to serve respondent No. 1 within two weeks, by
registered post acknowledgment due.
20. Let the respondents may file counter affidavit within
a period of three weeks.
21. It is also informed to this Court that an identical
issue is involved in C482 Application No. 2253 of 2023.
List this matter on 25.06.2024 along with C482 No. 2253
of 2023. On the next date, the applicant will also assist to
this Court about the way out for survival of those families
who are the owner of these mules.
22. In the meantime, the order dated 24.11.2023,
passed by the Court of Judicial Magistrate, Ukhimath, in
Miscellaneous Criminal Case No. 53 of 2023, as well as
the order dated 30.04.2024, passed by the Court of
Sessions Judge, Rudraprayag in Criminal Revision No. 3
of 2024, State of Uttarakhand Vs. Mustkim shall remain
stayed.
___________________________
Rakesh Thapliyal, J.
Dt: 24.05.2024
Mahinder/
