TMI Blog2009 (11) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion applications preferred therefrom; iii) directed the appellant No. 1 to pay, by way of compensation and cost, to each of the respondent Nos. 1 to 6 a sum of ₹ 75,000/-, without prejudice to their rights and contentions in the criminal proceedings initiated by way of Criminal Inquiry Case No. 237 of 2008 and pending before the learned Chief Judicial Magistrate, Palanpur, as well as to pay, on behalf of respondent Nos. 1 to 6 the cost of maintenance and treatment of the herein, i.e., Panjarapole Patan in accordance with the provisions of sub-Section (4) of Section 35 of Prevention of Cruelty to Animals Act, 1960, within a period of one month, i.e., latest by January 30, 2009; iv) directed respondent No. 8, which is entrusted care and custody of the animals under interim order, to hand over the surviving animals to the respondent Nos. 1 to 6 in such proportion as the original number of seized animals bears to the number of surviving animals; v) directed the State of Gujarat, i.e., respondent No. 7 herein, to take appropriate departmental action for illegal or unauthorized actions, if any, on the part of any police officer and if, upon inquiry it prima facie app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eep were coming speedily towards Palanpur, whereas he and others were following those trucks and, therefore, necessary action should be taken to halt the trucks at Aroma Circle Check Post. When the trucks reached near Aroma Circle, the drivers spotted the police. Therefore, they stopped their vehicles and, after leaving the trucks, ran away. On search being made, it was found that in all there were eight trucks and in each truck, goats and sheep were being conveyed in a congested manner. It was also noticed that there was no facility of fodder, water, etc. in any of the trucks and that the drivers had meted out cruelty to the animals. On making the inquiry as to who were driving the trucks, it was found that (1)Ramjanbhai Ibrahimbhai Sindhi, resident of Nilana, Taluka Shiv, District Badmer, (2) Rojakhan Dosukhan Sindhi, resident of Lilasa, Taluka Shiv, District Badmer and (3) Jamalkhan Dinakhan Sindhi, resident of Nimlatada, Taluka Shiv, District Badmer, Rajasthan, were drivers of some of the trucks. They were arrested and on being questioned, it was informed by Ramjanbhai Ibrahimbhai Sindhi that the others were cleaners of the trucks. It was also learnt from Ramjanbhai Ibrahimbhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f them were shown to have died in the FIR with a view of have asserted that the appellant No. 1 had planned the entire operation of looting the trucks with the active help and connivance of local police at Deesa. Therefore, one of the respondent Nos. 1 to 6 filed complaint against the appellant No. 1 with Superintendent of Police at Palanpur on June 17, 2008 itself about the forcible and violent taking over of the trucks with cattle and ₹ 500/-in cash. In the complaint filed with Superintendent of Police, Palanpur, nothing was done. Therefore, a criminal complaint was filed in the Court of learned Chief Judicial Magistrate, Palanpur, which is registered as Criminal Inquiry No. 237 of 2008 on June 18, 2008 for the alleged commission of offences punishable under Sections 395, 427, 506(2) read with Section 34 of Indian Penal Code alleging that the persons accused therein, including the appellant No. 1, had, with the help of police, taken over the trucks, beaten the drivers, looted cash of ₹ 1,11,000/- and taken away sheep and goats worth ₹ 45,48,000/-. The learned Chief Judicial Magistrate made an order below the complaint directing the Deputy Superintendent of Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent Nos. 1 to 6 in the instant appeal had filed Special Criminal Application No. 1387 of 2008 under Article 226 of the Constitution before the High Court stating that they were owners of the goats and sheep seized by the police pursuant to FIR No. II-C.R. No. 3131 of 2008, registered with Deesa City Police Station for alleged commission of offence under Section 279 IPC, Section 11(1)(d) of the Act and Sections 5, 6 and 8 of Bombay Animal Preservation Act, 1954 and claimed custody of the cattle. The names of the respondent Nos. 1 to 6 are as under: - 1. Dosukhan Samdakhan Sindhi, at Village Gudamalani, District Barmer, Rajasthan 2. Amirkhan Sadikkhan Sindhi, at Village Ramsar, District Barmer, Rajasthan 3. Razakkhan Noorkhan Sindhi, at Village Badau, District Barmer, Rajasthan 4. Bherakhan Hamidkhan Sindhi, at Village Bamgol, District Barmer, Rajasthan 5. Sadikkhan Wagahkhan Sindhi, at Village Jalikheda, District Barmer, Rajasthan 6. Chanesar Alakhan Sindhi, at Village Sarupekatla, District Barmer, Rajasthan. It is an admitted position that II-C.R. No. 3131 of 2008 is not registered with Deesa City Police Station against any of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution to get quashed the FIR registered as II-C.R. No. 3131 of 2008 with Deesa City Police Station against them and the proceedings pursuant thereto. The quashing of FIR at the instance of third parties is unknown to law. Further, it is well settled that neither power under Section 482 of the Code of Criminal Procedure, 1973 nor jurisdiction under Article 226 of the Constitution can be exercised by the High Court to quash the complaint if prima facie commission of offences is made out. The complaint lodged by the appellant No. 1 is on the record of this appeal. A perusal of the same indicates that the appellant No. 1 has averred in his complaint that close to 2000 goats and sheep were being transported in eight trucks, in a cramped manner, denying them even food and water in the process. It is asserted by the appellant No. 1 in his complaint that carrying of more than 200 animals in a truck is cruelty by itself. The other averments made in the complaint could not have been ignored while deciding the question whether the complaint deserves to be quashed. The complaint has been quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade out, why the respondent Nos. 1 to 6, who are not shown as accused at all, are convicted under Section 11(1)(d) of the Act, could not be explained by any of the learned counsel appearing for the parties. Also the grievance made by the appellant No. 1 in ground I of the memorandum of Special Leave to Appeal that by overstepping its jurisdiction and giving a go-bye to the regular trial, the High Court has quashed criminal proceedings without hearing the complainant/appellant No. 1 cannot be ignored by this Court in view of peculiar facts of the case. The learned Single Judge has quashed the complaint of the appellant No. 1 contrary to the well settled principles governing quashing of a complaint. Quashing of the complaint in part should not have been ordered after convicting the respondent Nos. 1 to 6 for the offence punishable under Section 11(1)(d) of the Act and, therefore, for all these reasons, the impugned judgment is liable to be set aside. 13. What is noticed by this Court is that by filing Special Criminal Application No. 1387 of 2008, the respondent Nos. 1 to 6, who claim to be owners of the goats and sheep seized, had prayed for the following reliefs, which are enume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Criminal Inquiry Register and that is how Criminal Inquiry No. 237 of 2008 is registered in the Court of the learned Chief Judicial Magistrate, Palanpur. Further by the said order the D.S.P., Palanpur was also directed to report within seven days before the court and submit a progress report every seventh day till the completion of the investigation, after which the court was to pass further orders. 14. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 1 to 6 were seeking a writ of certiorari or mandamus to declare that order dated July 5, 2009, passed by the learned Chief Judicial Magistrate, Deesa, refusing to hand over custody of the goats and sheep seized to them, was illegal and were also seeking quashing of the said order. At no point of time, the learned advocate for the respondent Nos. 1 to 6 had moved any application seeking permission of the Court to amend the prayer clause contained in the petition so as to enable the respondent Nos. 1 to 6 to claim compensation from the appellant No. 1. A fair reading of the petition makes it more than clear that no factual data whatsoever was laid by the respondent Nos. 1 to 6 for claiming compensation from the appellant No. 1. No facts were mentioned as to in which manner they or any of them had suffered damage or loss because of the handing over of custody of goats and sheep to the appellant No. 1 and ultimately to the respondent No. 8 Panjarapole situated at Patan nor the appellant No. 1 was permitted to controvert that in fact no damage or loss was suffered by the respondent Nos. 1 to 6 or any of them. There is no manner of doubt that the High Court was too indulgent in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e animals in such cases would be payable by one who claims custody or who are the owners of the live stock but not by the complainant. 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 and circumstances emerging from the record of the case, 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. This takes the Court to answer the question whether respondent Nos. 1 to 6 are entitled to relief of interim custody of goats and sheep seized pursuant to filing of complaint No. II-C.R. 3131 of 2008 registered with Deesa City Police Station. The fact that respondent Nos. 1 to 6 are owners of the goats and sheep seized is not disputed either by the appellant No. 1 or by the contesting respondents. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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