1 wp-2879-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2879 OF 2009 WITH CRIMINAL WRIT PETITION NO.2880 OF 2009 WITH CRIMINAL WRIT PETITION NO.2881 OF 2009 Akhil Bhartiya Krushi Goseva Sangh .. Petitioner Vs. The State of Maharashtrsa .. Respondent. Mrs. Sunanda Kumbhat a/w. Mr. Mahesh Jain for Petitioners in all the matters. Smt. A.A.Mane, APP for Respondent-State in all the matters. Mr. Vikas Shivarkar, for Respondent No,.2 in all the matters. CORAM : A.R.JOSHI, J. DATE : 18th MARCH, 2011. P.C.: 1. Rule. Rule returnable forthwith. Heard finally, by consent of parties. 2. By this common order all three criminal writ petitions are being disposed of, as common question is involved as to challenge to the orders passed by District Judge-1 and Additional Sessions Judge,Pune in respective Criminal Revision Applications. 3. Heard rival submissions on earlier date and matter is taken up today for passing final orders. 2 wp-2879-09.sxw 4. Prior to discussing the rival submissions, the facts of the matter can be narrated, as under: 5. In three different tempos, various cattle, totally about 55 in numbers were being carried on 16th December, 2006 on Pune Sholapur road. Allegedly, the said cattle stock was being transported to the Slaughter house. Transport of such cattle was noticed by the Members of one Social Service Organization by name ‘Akhil Bhartiya Krishi Goseva Sangh’ (hereinafter referred as ‘Petitioner-Sangh’ for short). As such intimation was given to the local police Loni-Kalbhor Police Station,District Pune. As such, near Kawdipat Toll Plaza, on Pune-Sholapur road, said three tempos were accosted and were taken charge of by the police and offence under Section 11 (1) and 12 (1) of Maharashtra Animal Preservation Act and under section 83 (1), 177 of Motor Vehicles Act came to be registered. Four persons were arrested on the spot who were managing the tempos and the cattle stock i.e.bulls being transported in the vehicles without observing rules and regulations of the Motor Vehicles Act and also the Maharashtra Animal Preservation Act and without any license contemplated by the said relevant provisions. The cattle stock was seized during investigation of C.R. No.126 of 2006. 6. In the month of December, 2006, applications were presented before the concerned court for interim custody of the animals/cattle's during the pendency of the criminal matters. Said applications were allowed by 3 wp-2879-09.sxw learned Judicial Magistrate on 29th January, 2007. The operative part of the said order reads, as under:- 1. “Pending trial, the cattle i.e.55 cattle including 53 calves of cows and 2 calves of she-buffalo be put in possession of applicant Akhil Bhartiya Krushi Goseva Sangha, which are seized by Lonikalbhor police in C.R.No.126/2006 on execution bond of Rs.1,00,000/- with condition to take proper care for preservation and protection of cattle and to produce the cattle whenever and wherever required and not to dispose off it in any manner. 2. The owner of cattle to pay Rs.45/- per day for each cattle to applicant towards maintenance of cattle.” 7. Being aggrieved by the above order one Mohd. Gani Saudagar, claiming to be the owner of the cattle stock, preferred an application before the learned Judicial Magistrate, First Class, Pune under Section 457 of the Code of Criminal Procedure, 1973. Vide said application, custody of the cattle was asked. Said J.M.F.C. Pune rejected the said application by a detail order. It is factual position that said order of rejection of the application filed by said Saudagar was passed on 29th January, 2007. On the same date the applications preferred by the present petitioner-Sangh asking for interim custody of cattle under Section 451 of the Code of Criminal Procedure was passed. It is significant to note that present Respondent no.2 Mohd. Gani Saudagar claiming to be the owner of the cattle stock did not prefer any separate application for setting aside the 4 wp-2879-09.sxw order passed under Section 451 of the Cr.P.C.vide which the cattle stock was given in the custody of petitioner-Sangh, during the pendency of the trial by the order of J.M.F.C, Pune. 8. Being aggrieved by the order of rejection of the application filed by respondent No.2 asking for custody of animals under Section 457 of the Code of Criminal Procedure, he approached before the Sessions Court, Pune in Criminal Revision. In the said criminal revision application, present petitioner-Sangh was not made as a party-respondent. Learned Additional Sessions Judge, Pune allowed the Criminal Revision Application preferred by Mohd Gani Saudagar (present Respondent No.2) and respective cattle's seized from the tempos were directed to be returned to said Mohd.Gani on certain conditions of execution of bond and undertaking not to use said animals for the purpose of slaughtering and to produce those animals before the trial Court as and when required during the trial. 9. Now, being aggrieved by the order of revisional Court, petitioner- Sangh filed writ petition before this Court in the year 2007 for setting aside the said orders which were passed in the year 2007. Said writ petition was heard and partly allowed, giving directions to the concerned Sessions Court, Pune to hear the petitioner-Sangh on the Revision application preferred by Mohd.Gani Saudagar. Accordingly, the petitioner-Sangh was made party and again a detail order was passed by which the cattle stock was given in the custody of Mohd.Gani Saudagar on certain conditions. 5 wp-2879-09.sxw Said order was passed in October, 2009. 10. Being aggrieved by the said final order passed by Additional Sessions Judge, Pune after remand of the matter, petitioner-Sangh preferred criminal writ petitions before this Court. Earlier the matter was taken before the another Bench and vide order dated 24th September, 2010 ad-interim relief was granted, thereby the execution of the order challenged in the present writ petition was stayed. Under the above factual position, the present writ petitions were heard at length, when the position still stands today that all the live stock of cattle's is in the custody of the petitioner-Sangh, during the pendency of the trial before the learned Judicial Magistrate’s Court, Pune. 11. During the arguments, the following authorities are cited before this Court, on behalf of the petitioner-Sangh. (1) Krushi Goseva Sangh and Anr vs. State of Maharashtra & ors. 1987 (3) Bom. C.R. 713. (2) Akhil Bharat Krishi Goseva Sangh vs. State of Maharashtra & Anr 1998 Bom. C.R. (Cri.)227 (3) Akhil Bharat Krushi Goseva Sangh vs. State of Maharashtra & Anr 1998 Bom. C.R. (Cri.)230 6 wp-2879-09.sxw 12. It is submitted that when prima facie there are allegations against the owner that the cattle stock, which is protected under the Maharashtra Animal Preservation Act, 1976 and the Prevention of Cruelty to Animals Act, 1960 (59 of 1960), was being transported for the purpose of taking to the slaughter house and when prima facie there is material that relevant offences have been committed by the owner of the stock, then in fact even during the pendency of the trial, till the points in controversy are decided on merits of the case, such live stock is required to be given in the custody of social organization for maintenance and up keeping of such live stock. This Court has carefully gone through the ratios propounded by these authorities. The factual position cannot be over looked that prima facie there is material to accept that the live stock was being taken for the slaughtering purpose and not for resale as alleged by Respondent No.2. More so, when considering the topography of the area where the live stock was found, there was nothing to suggest that the live stock was being taken to the animal market for sale. However, there was a slaughter house in the near proximity of the area. 13. All the same, at this juncture of pending criminal trial before the J.M.F.C.Court suffice, it to say that the cattle stock is required to be kept in the custody of social organization and that giving it to the custody of the present petitioner-Sangh, who is apparently taking the live stock to the slaughter house would be against the object and purpose of Acts which are 7 wp-2879-09.sxw attracted in the present matter. Needless to mention that after proper adjudication of the case and finding the guilt or otherwise of the accused persons, appropriate orders shall be passed by the concerned J.M.F.C.Court giving finality to the custody of the live-stock as the orders passed under Section 451 of the Code of Criminal Procedure in favour of the petitioner- Sangh are only in the interim nature. 14. Moreover, it is a factual position that earlier order dated 29th January, 2007 passed by J.M.F.C.Pune has not been set aside by any Higher Court. Vide said order same obligation was imposed on the owner (present respondent No.2) to pay stipulated sum of Rs.45/- per animal towards maintenance. Reportedly, said obligation has not been completed till date by respondent No.2. This aspect of the matter is required to be dealt with by the concerned Court at the time of the trial, as per law. 15. Considering rival submissions, present writ petitions are allowed in terms of prayer clause (a) and (b). Concerned Judicial Magistrate, Pune, who is seized of the matter, shall dispose of the matter, in accordance with law and as expeditiously as possible without being influenced by any observations made in the present order. The rule is made absolute in terms of the observations indicated above. (A.R.JOSHI, J.)