IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.MC.No. 3213 of 2009() ------------------------------------ CC.753/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, SASTHAMCOTTA .................... PETITIONER/1ST ACCUSED ---------------------------------------- PRAVEENA, D/O. INDIRA BHAI, DURGA VIHAR, PUTHOOR, PUTHOOR.P.O., KOLLAM DIST. BY ADV. MR.LATHEESH SEBASTIAN MR.R.ARUN RESPONDENTS/COMPLAINANT --------------------------------------------- 1. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER, SOORANAD POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3213 OF 2009 ------------------------------------------ Dated 3rd November 2009 O R D E R Petitioner is the first accused in C.C.753/2006 on the file of Judicial First Class Magistrate, Sasthamkotta taken cognizance for the offence under Sections 289 and 304 A of Indian Penal Code and Section 11 (1) of Prevention of Cruelty to Animals Act, 1960. Petitioner is the owner of an elephant, Manikantan. Accused 2 to 5 are its mahouts. On 19/4/2006, while accused 2 to 5 were taking the elephant along the Panchayat road to the north of Palathinkadavu, accused 2 to 5 ill-treated the elephant which caused it to be violent and it caused death of Devaki and also inflicted injury Marykutty. It was alleged that elephant became violent on account of the cruelty meted out to it by accused 2 to 5 and as the elephant was taken rashly and negligently without proper care and thereby offences under Sections 289 and 304 A of Indian Penal Code and Section 11(1) of Prevention of Cruelty to Animals Act Crmc 3213/09 2 were committed. After investigation, Annexure-A2 final report was filed, which was taken cognizance by the learned Magistrate. This petition is filed under Section 482 of Code of Criminal Procedure by first accused contending that she was implicated only for the reason that she is the owner of the elephant and there is no allegation as against the petitioner that she was negligent or treated the elephant with cruelty and in such circumstances, the case as against the petitioner is to be quashed. 2. Annexure-A1 FI statement shows that allegation was that accused 2 to 4 the mahouts had treated the elephant with cruelty and due to said cruelty it got violent and inflicted injury on deceased Devaki causing her death and also inflicted injury to Marykutty. There is no allegation in Annexure-A1 FI statement that petitioner was anywhere near the spot either when the elephant treated cruelly by accused 2 to 5 or when the elephant turned violent or attacked the deceased or the injured. There is no allegation in Annexure-A1 that petitioner was in anyway, negligent in maintaining the elephant. On the other hand, FI statement itself shows that three Crmc 3213/09 3 mahouts were appointed for maintaining the elephant. Similarly, final report also does not contain any specific case as against the petitioner. There is no case that petitioner did not maintain the elephant properly or was treating the elephant negligently or cruelly. Only allegation is that she is the owner of the elephant and accused 2 to 5 are the mahouts and they treated the elephant cruelly and also caused it to be violent, consequent to the ill-treatment. In such circumstances, question is even if, petitioner is to be tried, whether there is any likelihood of successful prosecution. 3. Section 289 of Indian Penal Code provides that whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished for the sentence provided therein. Therefore, in the absence of a case that the petitioner either knowingly or negligently omitted to take such order with the animal in her possession, as is sufficient to guard against any probable danger to any human life or Crmc 3213/09 4 danger of grievous hurt even if petitioner is to be tried, she cannot be convicted for the offence under Section 289 of Indian Penal Code. Similarly when the petitioner was nowhere in the place when the elephant turned violent and inflicted injuries on the deceased or the injured, it cannot be said that petitioner was responsible for the unfortunate incident by doing any rash or negligent, not amounting to culpable homicide as provided under Section 304 A of Indian Penal Code. Hence even if, petitioner is to be tried for that offence, there is no likelihood of a conviction of the petitioner. 4. Section 11(1) of Prevention of Cruelty to Animals Act, 1960 provides punishment for treating animals cruelly. By clause (a) if any person beats, kicks, over-rides, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal so treated, would be treating the animal cruelly. When there is no specific case for the prosecution that petitioner did any of the acts covered by clause (a) to (o) of sub Section 1 of Section 11, even if petitioner is to be Crmc 3213/09 5 tried, she cannot be convicted for the offence under Section 11(1) of Prevention of Cruelty to Animals. 4. In such circumstances, it is not in the interest of justice to continue the prosecution as against the petitioner when there is no likelihood of a conviction for any of the offences. Petition is allowed. C.C.753/2006 on the file of Judicial First Class Magistrate, Sasthamkotta as against the petitioner, first accused is quashed. It is made clear that prosecution as against other accused is to be continued. M.SASIDHARAN NAMBIAR, JUDGE. uj.