MANAGER, PINJRAPOLE DEUDAR AND ANR.

CHAKRAM MORA.JI NAT AND ORS.

AUGUST 31, 1998

[M.K. MUKHERJEE AND S.S.M. QUADRI, JJ.]

Oiminal Law :

Prevention of Cmelty to Animals Act, 1960: Section 35(2).

C Animal-Custody of-Dwing pendency of proserntionwner's 1ight to-Held: Unless tlze owner of tlzc animal is dep1ived of tlze custody c01zseque1zt upon his conviction 11nder tlze Act for the second time, Jze is not baJTed Jimn claiming inte1im custody of the animal-S. 35(2) gives discretion to the Magistrate to give inte1im custody of the animal to a Pinjrapole-But in the D event of not sending it to an infimzity the Magistrate is not bound to direct

inte1i111 custody of the animal to a PinjrapolC-C1iminal Procedure Code, 1973, S. 451-Bombay Police Act, 1951-Gujarat Diseases of Animals Control Rules, 1963--n. 65 to 75.

Animal-Inte1im custody of-Dwing pendency of prosecution-To be E given to owner or to the Pinjrapo!G~Detemzination of-Factors relevant laid , •. down-Fwthe1; mere offer of the Pinjrapole a Charitable organization, to keep

the animals in rnstody witho11t charging any money for maintenance, not decisive-E.1pecially, when there is competi11g claims of the ow11er a11d the Pinjrapole for their inte1im rnstody.

Words and Phrases :

"Shall be sent''--Meaning of-In the context of S. 35(2) of the Prevention of Cmelty to Animals Act, 1960.

The respondent's animals were seized by the police for violation of G t!te provisions of the Prevention of Cruelty to Animals Act, 1960, the Bombay Police Act, 1951 and Rules 65 to 75 of tlie Gujarat Diseases of Animals Control Act, 1963. The Judicial Magistrate directed that the custody of the aniinals be handed over to the appellant-Pinjrapole. However, the Additional Sessions Judge directed that the custody of the animals be given to the owner pending trial of the case. The High Court declined to interfere H with the aforesaid order. Hence this appeal. 198

MANAGER, PINJRAPOLE DEUDAR v. C.M. NAT 199

Dismissing the appeals, this Court

HELD: 1.1. In view of the Provisions of Section 35 of the Prevention of Cruelty to Animals Act, 1960 and Section 451 of the Criminal Procedure Code, 1973 it has to be held that 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; [204-C]

1.2. Section 35(2) of the Act vests in the Magistrate discretion to give interim custody of the animal to a Pinjrapole. However, it does not say

that the Magistrate shall send the animals to a Pinjrapole. The expression C "shall be sent" occurring in Section 35 (2) is a part of the direction to be given by the Magistrate if in his discretion he decides to give interim custody to a Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to a Pinjrapole but he is not bound to hand over custody of the animal to a Pinjrapole in the event of not sending it to an infirmary. In a case where D the owner is claiming the custody of the animal, the Pinjrapole has no preferential right. [204-E-F]

2.1. In deciding where 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 and the animal is not liable to be seized, 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 G inspection and seizure;

(5) the possibility of the animal being again subject to cruelty.

' ( 6) whether the Pinjrapole is functioning under the scheme of the Animal Welfare Board and is answerable to the Board or whether it is an H

A independent 'organization; and

(7) whether the Pinjrapole has good record of taking care of the animals given. under its custody. [204-G-H; 205-A-B]

2.2. In the instant case, offer of the Pinjrapole an independent B charitable organization, to keep the animals in custody without charging any nioney for their maintenance, is held not to be a correct criteria for giving custody of the animals to the Pinjrapole particularly when the Court has to decide the competing claims of the owner and the Pinjrapole for their custody. [205-D] c

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 889-892 of 1998.

From the Judgment and Order dated 8.4.97 of the Gujarat High Court in Crl.R.A. No. 24, 225-226/96 and Spl. Crl.A. No. 1431 of 1996.

Dr. A.M. Singhvi, S.C. Patel and G.R. Popat for the Appellants.

A.K. Ganguli, .J.L. Chauhan, Shakil Ahmed Syed, Ms. H. Wahi, Ms.

Neithono Rhetso and Ms. Anu Sawhney for the Respondents.

E The Judgment of the Court was delivered by

QUADRI, J. Leave is granted.

These three appeals are filed by the Manager, Pinjrapole against the common judgment of the High Court of Gujarat dated April 8, 1997. The F short question that arises for consideration in these appeals is: whether the order of the High Court declining to grant interim custody of the animals to the appellants is contrary to Section 35 of the Prevention of Cruelty to Animals Act, 1960.

G The facts giving rise to this question may be noticed here. While the sheep and goats [hereinafter referred to as "animals"] were being transported, the Gujarat police seized them for the alleged violation of provisions of the Prevention of Cruelty to Animals Act, 1960 (for short, the Act), Bombay Police Act and Rules 65 to 75 of the Gujarat Diseases of Animals Control Rules. 1963. It is a common ground that the offences H alleged are non-cognizable. The learned Judicial Magistrate, lst Class,

Dhanera, on their production before him, directed that the custody of the A animals be handed over to Pinjrapole. Dissatisfied with the order of the learned Magistrate, the owners of animals filed Criminal Revision Application before the learned Additional Sessions Judge, Banaskantha at Palnapur, who allowed the Revision and directed that the custody of animals be given to the owners pending trial of the cases. The Pinjrapole carried the matter in Revision before the High Court of Gujarat. That Revision and two other cases were disposed of by the High Court by common order dated April 8, 1997, declining to interfere in the order passed by the learned Additional Sessions Judge. The correctness of that common order is assailed in these appeals.

Dr A.M.Singhvi, the learned senior counsel appearing for the appellants, has argued that Section 35 of the Act, enjoins that in the event the Magistrate not sending animals to an infrrmary, he has to seed them to Pinjrapole pending the trial of offences against the owner under the Act;

that the order of the High Court confirming restoration of custody of the animals to the owners in preference to the appellant-Pinjrapole, which is D a charitable institution and is only interested in the welfare of the animals, is violative of Section 35, illegal and unsustainable.

Mr. AK.Ganguli, the learned senior counsel appearing for the respondents, has submitted that the High Court has properly construed section 35 of the Act and after taking note of various instances of destruction of the animals and the standard of care taken in the Pinjrapoles, and that having regard to the welfare of animals as well as the interest of the owners, the High Court has rightly declined to interfere with the order of the learned Sessions Judge, so these appeals are liable to be dismissed.

For judging the merits of these contentions, it will be apt to notice the scheme of the Act in the light of the relevant provisions thereof. Section 4 of the act postulates establishment of Animal Welfare Board by the Central Government for the promotion of animal welfare generally and for

the purpose of protecting animals from being subjected to unnecessary G pain or suffering, in particular. The Board is a body corporate having perpetual succession and a common seal with power lo acquire and dispose of property, subject to the provisions of the Act Section 9 of the Act enumerates functions of the Board; clause (g) thereof contains the objective which reads: to encourage, by the grant of financial assistance or H

A otherwise, the formation or establishment of Pinjrapoles, rescue homes, animal shelters, sanctuaries and the like where animals and birds may find a shelter when they have become old and useless or when they need protection. Section 11 enlists offences against the animals and prescribes penalty therefor; Section 12 prescribes penalty for specific offence of B practising 'phooka and doom dey. Under Section 29 magistrate has power to deprive a person of the ownership or custody of an animal on his conviction of offences under the Act subject to certain conditions. Sections 32 to 34 deal with the power of search and seizure, issuing of search warrant and general power of seizure for examination. The owner 1s required to accompany the seized animals to the place of inspection. c

Now, it may be useful to quote Section 35 of the Act under which the appellant-Pinjrapole claims interim custody of the animals:

"35. Treatment and care of animals - (1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this act have been committed, and may authorise the detention therein of 'any animal pending its production before a magistrate.

(2). The magistrate before whom a prosecution for an offence against this act has been instituted may direct that the animals concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a Pinjrapole, or if the veterinary officer in charge of the area in which the animal is found or such other veterinary officer as may be authorised in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.

(3) An animal sent for care and treatment to an infirmary shall not, unless the magistrate directs that it shall be sent to a Pinjrapole or that it shall be destroyed, be released from such place except upon a certificate of its fitness, for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act.

MANAGER, PINJRAPOLE DEUDAR v. C.M. NAT [QUAD RI, J.) 203

( 4) The cost of transporting the animal to an infirmary or A pinjrapole, and of its maintenance and treatment in an infirmary, shall be payable by the owner of the animal in accordance with a scale of rates to be prescribed by the district magistrate, or, in presidency-towns, by the commissioner of police.

Provided that when the magistrate so orders on account of the poverty of the owner of the animal, i!O charge shall be payable for the treatment of the animal.

(5) Any amount payable by an owner of an animal under subsection ( 4) may be recovered in the same manner as an arrear of land revenue.

( 6) If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost.

(7) The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale, be paid to him."

From a plain reading of the provisions, above noted, it is evident that sub-section (1) of Section 35 enables the State Government to appoint infirmaries for the treatment and care of animals in respect of which any

of the offences under the Act has been committed and to authorise the detention of such animals pending their production before a Magistrate.

Under sub-section (2), the Magistrate may order that: (a) the animal shall p be treated and cared for in an infirmary till such time it is fit to perform its usual work or is otherwise fit for discharge; (b) the animal shall be sent to a Pinjrapole; or (c) the animals shall be destroyed if it is certified by a veterinary officer, authorised under the Rules, to be incurable or if it is found that it cannot be removed without cruelty. Mandate of sub-section

(3) is that no animal shall be released from an infirmary unless it is directed G to be sent to Pinjrapole or be destroyed or certified by concerned veterinary officer to be fit for discharge. Sub-section ( 4) imposes liability for payment of the cost of transporting the animal to an infirmary or Pinjrapole and its maintenance and treatment in an infirmary, in accordance with the prescribed rates, which, however, can be dispensed with if the Magistrate H

A is satisfied that on account of the poverty of the owner, he is unable to bear the same, otherwise it may be recovered as arrears of land revenue, as envisaged in sub-section (5). Sub-section (6) says that if the owner refuses or neglects to remove the animal within the time specified by the Magistrate then he can order the sale of the animal and appropriation of the sale B proceeds for the cost thereof and in the event of there being surplus proceeds of such sale, payment of the same to the owner on his application within two months of the sale. This is postulated by sub-section (7).

In view of the above discussion and provisios of Section 451 Cr.P.C., it appears to us that unless the owner of the animal in respect of which he C 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.

Now adverting to the contention that under Section 35(2), in the D event of the animal not being sent to infirmary, the Magistrate is bound to give the interim custody to Pinjrapole, we find it difficult to accede to it.

We have noted above the options available to the Magistrate under Section 35(2). That sub-section vests in the Magistrate the discretion to give interim custody of the animal to Pinjrapole. The material part of sub-section (shorn of other details) will read, the Magistrate may direct that the animal E concerned shall be sent to a Pinjrapole. Sub-section (2) does not say that the Magistrate shall send the animals to Pinjrapole. It is thus evident that the expression "shall be sent" is part of the direction he decides to give interim custody to Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the F animal to Pinjrapole but he is not bound to hand over custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, 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 G 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 H time of inspection and seizure; ( 5) the possibility of the animal being again

subjected to cruelty. There cannot be any doubt that establishment of A 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 good record B of taking care of the animals given under its custody. A perusal of 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 animals to the owner.

Dr. Singhvi represents that Pinjrapole prepared to keep animals in custody without charging any money for their maintenance. In our view, that cannot be a correct criteria for giving custody of the animals to Pinjrapole particularly when the Court has to decide the competing claims of the owner and the Pinjrapole for their custody.

For the aforementioned reasons, we find no merit in these appeals, they are accordingly dismissed but having regard to the facts and mcumstances of the case without costs.

v.s.s.

Appeals dismissed.