TMI Blog1997 (4) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... e directing the interim custody of animal seized for the offence under the Act of 1960 and other ancillary Acts ? Question-1 : 2. Mr. M.M. Tirmizi, learned counsel appearing for the owners of the animal submits that panjarapole has no locus to either apply for the interim custody of the animal or to approach to the Higher Courts in that regard. In the Criminal proceedings for the offences under the said Act of 1960, the concerned parties are only the owner or accused and the State. It is only under Section 35 of the Act of 1960, the concerned Magistrate may direct to send the animal to pinjarapole. This in itself would not give power to panjarapole to ask for the custody. 3. Learned counsel relies on an unreported decision of this Court rendered in Special Criminal Application No. 804 of 1985 on 30-10-1985, wherein this Court (Coram: M. B. Shah, J., as His Lordship then was) said, 'In my view, as such respondent No. 2 has no locus standi in the matter because possession of the animals was handed over to panjarapole only as a custodian.' It may be stated that in the said case, the panjarapole was the respondent No. 2. He has also referred to the order dated 2-9-1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst order dated 2-9-96, the Court has said that the petitioner i.e. panjarapole is unconnected with the merits of the case and thus, cannot be said to be aggrieved by the change of custody. In another order dated 9-9-96, the Apex Court on a petition filed by the Panjarapole, while refusing to interfere with the order of High Court, added certain conditions for the welfare of the animal. It will not be out of place to say that a decision to be law under Article 141 must not be a mere conclusion by which the case is disposed of. Because, a conclusion, mere conclusion, may be on facts, it may not be and does not necessarily involve consideration of law. It is well settled that Article 141 will not be attracted if law is not declared or stated vocally to support the conclusion reached for deciding the lis. A mute declaration of the mere conclusion is not contemplated under Article 141. Thus, in my view, none of the cases referred to above can be of any assistance to the controversy before me. 6. To get the key of the question raised, it would be convenient to briefly acquaint with the relevant provisions of the Act of 1960. It has been enacted to prevent the infliction of unnecessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from panjarapole. If the condition of the animal is not as such which requires to be sent to the infirmary, then they can be sent to the panjarapole. 9. Learned counsel has much emphasized on the word 'shall' used in Section 35 when it speaks that it shall be sent to panjarapole . Prima facie, the use of word shall may indicate that the provision is mandatory, but such an inference is rebuttable by other considerations. There are several cases where the word shall has been construed as merely directory. Though the Act of 1960 has referred to institution of panjarapole, the Act does not provide its functions and consequences of ill-functioning of panjarapole. Thus, the provision on face cannot be said to be imperative, just because, the statute has used the word shall . 10. Mr. Tirmizi, learned counsel has brought to my notice some of the unreported decisions of this Court which speaks about the functioning of the panjarapole. In Special Criminal Application No. 804/85 decided on 30-10-1985, 200 sheep and goats were handed over to panjarapole by the order of the learned Magistrate. The said order was challenged by the owner of the animal. During the pendenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed by the owners of the animal in Special Criminal Application No. 477/96 that the authorities of panjarapole would sell all the animals and allow them to be killed for their monetary benefits. It was submitted that the cruelty to the animal would be through the medium of panjarapole authorities. Considering the facts of the case, M.S. Parikh, J. setting aside the order of custody to the panjarapole, directed interim custody of the remaining live goats and sheep to be handed over to the owner of the animal on the conditions set out in the said order. The Court also gave liberty to the owner of the animal to take appropriate legal remedy against the concerned responsible persons for such loss of goats and sheep at an appropriate point of time. M.P. Thakkar, J. (as His Lordship then was), in Criminal Revision Application No. 552/73 decided on 10-4-74, observed that, in normal circumstances, panjarapole should have been a proper institution for handing over the sheep and goats for interim custody, but in the peculiar facts of the case, His Lordship declined to give the custody to the panjarapole. His Lordship observed that the Courts in secular democratic State cannot be guided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are compelling reasons to deprive him, on the ground that, during the trial, presence of the said muddamal is must and further, presence cannot be secured even by imposing a suitable condition or there are strong ground to form an opinion that the muddamal is likely to be forfeited at the conclusion of the trial or in case of animal, the custody to owner shall not be in the welfare of the animal, even by imposing suitable condition. Thus, my answer to second question is that, Section 35(2) does not cast any duty on the Court to give custody of the animal to panjarapole, as a rule. Question-3 : 13. It is contended by Mr. Tirmizi, learned counsel for the owner of the animal that the necessary expenses for upkeeping the animal should be either borne by the panjarapole or the State as the custody is given to the panjarapole at their instance. It is required to be noted that, under the Act of 1960, Animal Welfare Board is to be established for the protection of the animal, welfare and for the purpose of protecting animal from being subjected to unnecessary pain or suffering in particular. Section 9 of the Act enumerates the function of the Board. Sub-clause (e) provides that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if the State or Panjarapole, whosoever ask for custody, it is their duty to maintain and they cannot ask for costs of maintenance to be paid by the accused or the owner of the animal. The question is decided accordingly. Question-4 : 15. It is contended by Mr. Tirmizi, learned counsel that the entire proceedings under the Act of 1960 right from the seizure of the animal and the order of the concerned Court, directing the interim custody, is illegal and without jurisdiction inasmuch as the offence under the Act of 1960 or under the Bombay Police Act or under the Motor Vehicles Act are non-cognizable and hence, seizure of animal by police is illegal and without authority of law. Learned counsel has invited my attention to Section 31 of the Act of 1960, which reads as follows : Section 31 : Cognizability of offences : Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence punishable under Clause (i), Clause (n) or Clause (o) or Sub-section (1) of Section 11 or under Section 12 shall be cognizable offence within the meaning of that Code. Thus, according to Section 31, all the offences except punishable under Clause (i), (n) or (o) of Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) of Section 102 provides that, such officer, subordinate to the officer in charge of the police station, shall forthwith report the seizure to that officer. Sub-clause (3) provides that, every police officer acting under Sub-clause (1) shall forthwith report the seizure to the Magistrate having the jurisdiction. Thus, the police officer has a power to seize animal on suspicion of commission of an offence committed under the Act of 1960 or under the other ancillary provisions, irrespective of the fact that they are non-cognizable offences. On such seizure, the police officer is required to forthwith report to the Magistrate having the jurisdiction. The Court is required to pass an appropriate order with respect to the custody of the animal under the provisions of Section 451 of the Cr.P.C. Thus, in my view, irrespective of the fact that, except offences under Clause (i), (n) or (o) of Sub-section (1) of Section 11 or 12 of the Act of 1960, rest of the offences are non-cognizable, the police has a power to seize the animal under Section 102 of the Cr.P.C. and the Magistrate will be competent to pass an order under Section 451 of the Cr.P.C. Question 5 : 19. Having held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Criminal Revision Application by Panjrapole-Deodar is directed against the order of the learned Additional Sessions Judge, Banaskantha, at Palanpur dated 12-1-1996 below Exh. 10 in Criminal Revision Application No. 131/95, whereby the learned Judge set aside the order of the learned J.M.F.C.-Sihori dated 21-11-1995 and directed the interim custody with the owner of the animal on the conditions set out therein. 21. It is contended by Mr. N. S. Sheth, learned counsel for the panjarapole that the learned Additional Sessions Judge has committed error in overlooking the fact that 300 cattle were being transported in one truck which itself speaks cruelty to animal on part of the owner. It is submitted by the learned counsel that the learned Additional Sessions Judge did not properly appreciate the ratio laid down by this Court in Special Criminal Application No. 804/85, decided on 30-10-1985. 22. I have gone through the impugned order. The learned Judge found that the learned Magistrate was swayed by the fact that the animals were taken for slaughtering purpose, without there being any foundation. In the opinion of learned Judge, animal could be protected by imposing appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjarapole keeping in view the provisions of Section 35(2) of the Act of 1960. As I have held that Sub-section (2) of Section 35 does not give a command that, as a rule, the custody should be given to the panjarapole, I find no justified ground to interfere with the impugned order of the learned Magistrate, Dhanera. 27. In view of the aforesaid, I find no merits in this Criminal Revision Application No. 226/ 1996 and the same is accordingly rejected. 28. So far as the Criminal Revision Application No. 225/96 is concerned, the condition imposed by the learned Magistrate were found to be harsh and as such, learned Additional Sessions Judge has rightly interfered with the order. In view of this, I am not inclined to interfere with the just order passed by the learned Additional Sessions Judge. The contention with respect to the maintainability of revision at the instance of Pinjarapole has been answered by me, as such it is decided accordingly. 29. In view of this, there is no merit in this Criminal Revision Application and the same is accordingly rejected. CRIMINAL REVISION APPLICATION NOS. 408/1992, 2/1993 AND 3/1993 : 30. One Geetaben B. Shah, Inspector, (on her d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Application No. 90/92 filed by the same party against the same order. In view of this, both the Criminal Revision Applications Nos. 2/93 and 3/93 deserves to be allowed and the impugned order of the learned Additional Sessions Judge, Bhavnagar, dated 31-12-1992 deserves to be quashed and set aside. 33. In view of the aforesaid, Criminal Revision Application Nos. 2/93 and 3/93 are allowed. The impugned order of the learned Additional Sessions Judge, Bhavnagar, dated 31-12-1992 is quashed and set aside. 34. So far as the Criminal Revision Application No. 408/92 is concerned, the grievance of the petitioner-panjarapole is that the Revision Application has been decided by the order of the learned Additional Sessions Judge without hearing them. There is substance in the contention raised by the petitioner. 35. In view of this, Criminal Revision Application No. 408/92 is allowed and the order of the learned Additional Sessions Judge, Bhavnagar, dated 30-11-1992 is quashed and set aside. It is directed that the learned Judge shall pass afresh order, after hearing all the concerned parties, and decide the same in the light of the law laid down by this Court. SPECIAL CRIMINA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exposed to further cruelty. In my view, this aspect goes to the route of the case. Therefore, in order to meet the ends of justice, it is expedient that the tatter is reheard by the learned Magistrate. 41. In view of this, this Special Criminal Application is allowed and the order of the learned J.M.F.C.-Deodar, dated 27-6-96 and the order of the learned Additional Sessions Judge, Banaskantha, at Palanpur, dated 20-8-96 are quashed and set aside. The learned Additional Sessions Judge is directed to rehear the Revision Application and decide afresh in the light of the law laid down by this Court. ORDER 42. In view of the aforesaid, following order is made :- (A) Criminal Revision Application No. 225/ 96 and No. 226/96 are rejected. Rule discharged. (B) Criminal Revision Application No. 4087 92 is allowed and the impugned order of the learned Additional Sessions Judge, Bhavnagar, dated 30-11-1992 is quashed and set aside. It is directed that the learned Magistrate shall pass afresh order after hearing all concerned and decide the same in light of the law laid down by this Court. Rule made absolute to the aforesaid extent. (C) Criminal Revision Application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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