2009 (11) TMI 942 - SC - Indian Laws

Entitlement to get custody of the entire live stock as in illegal custody - Commission of offences punishable u/s 279 IPC Section 11(1)(d) of the Act and Sections 5 6 and 8 of the Bombay Animal Preservation Act 1954 - Validity of order passed by the Additional Chief Judicial Magistrate refusing to grant custody of goats and sheep to the respondent Nos. 1 to 6 - Accused stating that while he was driving mini truck carrying the cattle from Palanpur to Deesa at the instance of the appellant No. 1 he had lost control of the vehicle due to overweight of cattle as a result of which the truck had turned on its side killing six cattle and causing damage to the said vehicle. The respondent Nos. 1 to 6 claiming to be the owners of goats and sheep filed an application u/s 451 and 457 of the CrPC 1973 for custody of the cattle. HELD THAT - This Court notices with surprise that though the respondent Nos. 1 to 6 herein who were original petitioners before the High Court are not accused of commission of any offence even remotely even then the ld Single Judge of the High Court has convicted them u/s 11(1)(d) of the Prevention of Cruelty to Animals Act 1960 and imposed a fine of Rs. 50/- on each of them. It hardly needs to be emphasized that those who are not even remotely alleged to have committed offence/offences cannot be convicted at all either at the trial or while exercising so called wide jurisdiction under Article 226 of the Constitution. The four accused named above were not parties to the petition filed by the respondent Nos. 1 to 6 nor they had approached the High Court for custody of goats and sheep seized. Therefore conviction of the respondent Nos. 1 to 6 u/s 11(1)(d) of the Prevention of Cruelty to Animals Act 1960 and imposition of fine of Rs. 50/- on each of them will have to be regarded as without jurisdiction unauthorized unwarranted and illegal and will have to be set aside. A bare glance at the prayers made makes it clear beyond pale of doubt that the respondent Nos. 1 to 6 had not prayed that the appellant No. 1 be directed to pay compensation and cost to each of them. The grievance made by the appellant No. 1 in the instant appeal is that without putting the parties to notice that the Court was inclined to determine and direct the appellant No. 1 to pay by way of compensation and cost the ld Single Judge has determined the amount of compensation and cost at Rs. 75, 000/- and directed him to pay such amount to each of the respondent Nos. 1 to 6. It is relevant to notice that the High Court was not exercising powers under Article 226 of the Constitution suo motu but was examining the validity of order passed by the Additional Chief Judicial Magistrate refusing to grant custody of goats and sheep to the respondent Nos. 1 to 6 in the Special Criminal Application which was filed by them under Article 226 of the Constitution In the instant case the assertion made by the appellant No. 1 is that he was handed over custody of goats and sheep by the police after registration of FIR seems to be that the appellant No. 1 had taken possession of the live stock and trucks illegally before the FIR was lodged and had acted in a high handed manner. The dispute whether appellant No. 1 was handed over custody of goats and sheep after filing of the complaint or whether he had obtained custody of goats and sheep illegally before the complaint was lodged will have to be adjudicated upon evidence to be lead by the parties. Such a highly contentious dispute cannot and could not be resolved in a petition under Article 226 of the Constitution. Having regard to the totality of the facts this Court is of the firm opinion that there was no justification at all in directing the appellant No. 1 to pay a sum of Rs. 75, 000/- towards compensation and cost to each of the respondent Nos. 1 to 6 and to pay to the respondent No. 8 herein the cost of maintenance and treatment of the animals in question on behalf of the respondent Nos. 1 to 6. Therefore this direction is also liable to be set aside. As this Court is inclined to set aside most of the directions given by the ld Single Judge in the impugned judgment the direction to serve a copy of the judgment on the appellant No. 2 i.e. Animal Welfare Board of India becomes redundant and therefore the same is also liable to be set aside. Whether respondent Nos. 1 to 6 are entitled to relief of interim custody of goats and sheep seized pursuant to filing of complaint registered with Police Station ? - Though the respondent No. 8 has by filing counter reply pointed out that the officials of Panjarapole at Patan are taking best care of the goats and sheep seized in the instant case this Court finds that keeping the goats and sheep in the custody of respondent No. 8 would serve purpose of none. Admittedly the respondent Nos. 1 to 6 by vocation trade in goats and sheep. Probably a period of more that one and half years has elapsed by this time and by production of goats and sheep seized before the court the prosecution cannot prove that they were subjected to cruelty by the accused because no marks of cruelty would be found by this time. The trade in which respondent Nos. 1 to 6 are engaged is not prohibited by any law. On the facts and in the circumstances of the case this Court is of the opinion that respondent Nos. 1 to 6 would be entitled to interim custody of goats and sheep seized in the case during the pendency of the trial of course subject to certain conditions. For the foregoing reasons the appeal partly succeeds. The Special Criminal Application is accepted in part by directing the respondent No. 8 to hand over custody of goats and sheep seized in the instant case to the respondent Nos. 1 to 6 who are owners thereof in such proportion as the original number of seized animals bears to the number of surviving animals on each of them depositing a sum of rupees fifty thousand with the trial court and each furnishing two sureties of Rs. 50, 000/- to the satisfaction of the trial court. The respondent Nos. 1 to 6 be handed over custody of goats and sheep in the presence of Police Officer in-charge of the Police Station at Patan who shall supervise delivery of the animals to the respondent Nos. 1 to 6 in such manner that the animals are not subjected to further cruelty in their transportation within the area of his jurisdiction. The respondent Nos. 1 to 6 are directed to see that no cruelty is meted out to the surviving animals and submit an undertaking to that effect to the trial court within a period of two weeks from today.

Summary

Issues Involved:
1. Legality of the custody order for livestock.
2. Conviction under Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960.
3. Quashing of FIR No. II-C.R.No. 3131 of 2008.
4. Compensation and cost payment to respondents.
5. Departmental action against police officers.
6. Serving of judgment copy to the Animal Welfare Board of India.
7. Interim custody of goats and sheep.

Detailed Analysis:

1. Legality of the Custody Order for Livestock:
The respondents sought to declare the order dated July 5, 2008, by the Additional Chief Judicial Magistrate, Deesa, as illegal for refusing to hand over custody of livestock. The Supreme Court noted that the High Court had quashed the FIR and related proceedings, which was beyond its jurisdiction since the respondents were not accused in the FIR.

2. Conviction under Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960:
The High Court convicted the respondents under Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960, and imposed a fine of Rs. 50/- each. The Supreme Court found this conviction unauthorized and illegal since the respondents were not accused of any offense in the FIR. The conviction was set aside as it was without jurisdiction.

3. Quashing of FIR No. II-C.R.No. 3131 of 2008:
The High Court quashed the FIR and proceedings related to the alleged offenses under Section 279 IPC, Section 11(1)(d) of the Act, and Sections 5, 6, and 8 of the Bombay Animal Preservation Act, 1954. The Supreme Court held that the FIR could not be quashed at the instance of third parties (respondents) who were not accused. The quashing of the FIR was deemed unauthorized and was set aside.

4. Compensation and Cost Payment to Respondents:
The High Court directed the appellant to pay Rs. 75,000/- to each respondent as compensation and cost. The Supreme Court found that this relief was not prayed for by the respondents in their petition. The direction to pay compensation and cost was set aside as it was beyond the scope of the relief sought and without proper notice to the parties.

5. Departmental Action Against Police Officers:
The High Court directed the State of Gujarat to take departmental action against police officers for any illegal actions. The Supreme Court found this direction premature and harsh, given that the legality of the seizure of goats and sheep could only be determined at the final trial stage. This direction was set aside.

6. Serving of Judgment Copy to the Animal Welfare Board of India:
The High Court directed the Registrar to serve a copy of the judgment to the Animal Welfare Board of India. The Supreme Court found this direction redundant and set it aside as most of the High Court's directions were being overturned.

7. Interim Custody of Goats and Sheep:
The Supreme Court acknowledged that the respondents were the owners of the goats and sheep and were entitled to interim custody. The Court directed that the custody of the animals be handed over to the respondents upon depositing Rs. 50,000/- each with the trial court and furnishing two sureties of Rs. 50,000/-. The delivery of the animals was to be supervised by the Police Officer in-charge to ensure no further cruelty.

Conclusion:
The Supreme Court allowed the appeal in part, setting aside the directions of the High Court regarding the conviction under Section 11(1)(d) of the Act, the quashing of the FIR, payment of compensation and cost, and departmental action against police officers. The Court granted interim custody of the goats and sheep to the respondents under specified conditions.