The Gauhati HC on 26th October, 2022 has recapitulate that an accused person can be handed over the interim custody of cattle subjugated ensuing to an alleged offence under the Prevention of brutality to Animals Act, 1960 (PCA Act’) Single bench of Justice Robin Phukan found it worthwhile to reproduce the following observations of the SC in Manager, Pinjrapole Deudar & vs. Chakram Moraji Nat & Ors (1998)This was seen in the matter of Dhyan Foundation v. State of Assam & 7 Others Case No: Crl. Rev. P. 146 of 2021 matter was presided by the Coram of Justice Robin Phukan.
FACTS OF THE CASE
U/S 35(2) of the PCA Act, the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not bound. In a case where the keeper is claiming the custody of the animal, Pinjrapole has no privileged right. In determining whether 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 & 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 subjugated, 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 time of inspection & seizure; (5) the possibility of the animal being again subjected to brutality.”
The facts which led to the existing matter were that upon a telephonic tip to the police, it was brought to their notice that the private respondents herein were bringing a huge amount of animals covered with timber, in goods-carrying vehicles. Acting on the tip, the ASI, along with other police officials, conducted a ‘naka checking’ where 62 cattle were recuperated being carried in 8 vehicles.
The vehicles & cattle were subjugated & a case was registered against the respondents U/Ss 420, 429 & 511 of the IPC, r/w Sections 11(a), 11(d), & 11(h) of the PCA. The subjugated cattle were thereafter transferred to the gaushala of the petitioner-foundation. During the pendency of the trial, both the petitioner & the respondents filed petitions for custody of the cattle. By an order, the Sub-Divisional Judicial Magistrate granted the interim custody of the cattle to the private respondents, which order was under challenge in the present revision petition.
The foundation relied on several SC decisions to resist that the interim custody of animals ought not to be handed over to the accused, if there is assertion of brutality against the animals in the FIR. The foundation then stated that as per the SC, a container or a vehicle could not carry more than six cattle, whereas in the instant case, 62 cattle were being carried in eight small vehicles in contravention of Rule 56(c) of the Transport of Animals Rules, 1978.
The petitioner additionally asserted that violation of Rule 56(c), in itself amounted to brutality, which required no further evidence. Finally, the petitioner resisted that Sec 3 of the PCA Act placed a duty upon every person, having the care or charge of an animal, to take all measures to ensure the well-being of such animal & to prevent infliction of unessential pain or suffering upon such animal, which the respondents failed to perform in the present case. Therefore, it asserted that the custody of the cattle could not be handed over to the respondents
The respondents, instead, asserted that the PCA or the PCA Rules, 2017 placed no legal bar in releasing the subjugated cattle in the interim custody of the owners. Reliance was placed on the SC decision in Manager, Pinjrapole Deudar & Others v. Chakram Moraji Nat & Others, MANU/SC/0557/1998. The respondents also asserted that the FIR showed no prima-facie evidence about subjecting the cattle to brutality. It was also asserted by the respondents that there was no material to suggest that the cattle were carried under logs & that the HC could not re-admire the facts while hearing a revision petition.
Answering the question of brutality, the HC found no delicacy in the order of the Magistrate, who had held that there was nothing in the FIR that could suggest that the animals had to bear unessential pain or suffering. Hence, culpability U/Ss 11(1)(a) or 11(1) (d) of PCA could not be established.
In connection with the question of custody of the animals, the court referred to the decisions in Shri Chatrapati Shivaji Gaushala & in Manager, Pinjrapole Deudar & noticed that U/S 35(2) of the PCA, there was no mandate that the Magistrate shall send the animal to a pinjrapole (animal shelter). The Court noticed that the Magistrate had the discretion to hand over the interim custody of the animal to a pinjrapole, but was not bound to do so.
“Keeping the ratios, laid down in the previously mentioned cases in mind, & also in the light of facts & occurrences on the record, while the impugned order of the learned court below is examined, this court left unimpressed by the submission of the learned counsel for the petitioner that the impugned order had failed to withstand the test of legality, propriety & correctness. Consequently, the submissions, so up to date by the learned counsel for the petitioner cannot be endorsed.
Therefore, the Court found no infirmity in the order of the Magistrate granting interim custody of the subjugated cattle in favour of the accused- respondents.
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JUDGEMENT REVIEWED BY YAKSHU JINDAL.