Judgment : Common Judgment: 1. These applications are being disposed of by common judgment as the issues involved in these applications are identical. 2. These applications are filed challenging judgment and order dated 16.01.2009 passed by Sessions Judge, Bhandara in Criminal Revision Nos. 85 to 88 of 2008. The applicant prayed in these applications that order dated 11.09.2008 passed by Judicial Magistrate First Class, Pauni in Misc. Criminal Application Nos. 91 and 92 of 2008 may be restored. 3. Background facts of the case in brief are as under:- The applicant herein, is the member of a public Trust known as Peoples for Animals (Society), Vidarbha Region, Nagpur, Registration No. M.H. 978/2000 and the said Trust is dedicated for welfare of animals and is engaged in taking care and protection of animals. The aforesaid Trust is also registered with Animal Welfare Board of India, Chennai. On 29.08.2008, Adyal Police Station has accosted 4 trucks and in the said trucks in all 92 cattle were found to be illegally transported. Police found that the said trucks were loaded with cattle/animals standing and drivers had run away. Therefore, report was lodged vide Crime No. 38/2008 and offence under Section 5,6,7 and 11 of the Maharashtra Animal Preservation Act, 1976 and Section 11 (1)(a) of the Prevention of Cruelty to Animals Act, 1960 was registered. Thereafter, on the statement of one driver by name Salim Khan, it was found and transpired that all the animals were being taken to Nagpur for slaughtering purposes. Thereafter, non applicant nos. 2 herein filed applications vide Misc. Criminal Application Nos. 91 and 92 of 2008 for releasing cattle on suprutnama in their favour before Judicial Magistrate First Class, Pauni. The present applicant had also filed application for getting animals on suprutnama in favour of his Trust by filing Misc. Criminal Application No. 94/2008. 4. The learned Magistrate, by passing order dated 11.09.2008, allowed Criminal Application No.94/2008 filed by the applicant and has rejected Criminal Application Nos. 91 and 92 of 2008 filed by non applicant nos. 2. In pursuant to order passed by learned Magistrate, the animals were handed over in the custody of the applicant. 5. Being aggrieved by the order passed by learned Magistrate, non applicant nos. 2 herein filed Criminal Revision Nos. 85 to 88 of 2008 before the Court of Sessions at Bhandara. 2. In pursuant to order passed by learned Magistrate, the animals were handed over in the custody of the applicant. 5. Being aggrieved by the order passed by learned Magistrate, non applicant nos. 2 herein filed Criminal Revision Nos. 85 to 88 of 2008 before the Court of Sessions at Bhandara. The learned Sessions Judge, Bhandara, by order dated 16.01.2009, allowed the criminal revisions filed by non applicant nos. 2 and directed that possession of 23 and 92 cattle be given to non applicant nos. 2 on suprutnama on certain conditions. Hence, this criminal applications are filed by the present applicant challenging order passed by the revisional Court. 6. Learned counsel for the applicant submitted that on plain reading of the First Information Report and investigation papers, it would reveal that the animals were being carried for slaughtering purposes without following due procedure of law and rules. As per Rule 56 of the Transport of Animals Rules, 1978, no goods vehicle shall carry more than six cattle at a time and Rule 50 of the aforesaid Rules speak that the average space provided for each cattle shall not be less than two square meters and adequate ventilation shall also be ensured. However, in the present case, about 92 cattle were being carried in four trucks that means about 23 cattle were being carried in each vehicle and no proper care, maintenance as required by law were being taken. Learned counsel further submitted that all the trucks were over-crowded and were more than permissible capacity of the vehicle and the said vehicle was also not carrying required quantity of fodder for the cattle and inhuman, cruel treatment was being provided to animals and thus the animals were subjected to unnecessary pains and sufferings. The learned counsel further submitted that there was no valid certificate obtained for Veterinary surgeon to the effect that the said cattle were in fit condition to travel and were not suffering from any disease, which is again breach of the Rules. The learned counsel further submitted that report of the Investigating Officer dated 29.08.2008, clearly reveals that the live stock was transported for slaughtering, has not been considered by the Court. The learned counsel further submitted that report of the Investigating Officer dated 29.08.2008, clearly reveals that the live stock was transported for slaughtering, has not been considered by the Court. It is further submitted that the revisional Court has not properly appreciated the contentions of the present applicant and erroneously held that non applicant nos.2 are entitled to the custody of cattle as no prosecution is pending against them. Learned counsel further submitted that the revisional Court has not considered the fact that the animals were treated with cruelty in such a manner that 5 to 6 animals were found dead while transporting. Learned counsel further submitted that the revisional Court has not considered and overlooked the Circular issued by Home Department, State of Maharashtra, dated 03.04.2008, wherein it is mentioned that the cattle, which were being taken for slaughtering, be handed over to the social Organizations for preservation. Therefore, the learned counsel would submit that when the learned Magistrate, after taking into consideration the factual aspect as empowered under Section 35 (2) of the Prevention of Cruelty to Animals Act, 1960, has rightly directed to hand over custody of the cattle in favour of present applicant, and there was no occasion for the revisional Court to upset the order passed by the Magistrate. The learned counsel in support of his contention relied upon the following judgments:- (i) Ashok L.Puranik ..vs.. State of Maharashtra and ors.; 1998(2) B. Cr. C. 86; (ii) Krushi Goseva Sangh & anr..vs..State of Maharashtra & ors.,Writ Petition No.373/1987; (iii) Akhil Bharat Goa Seva Sangh..vs..State of Maharashtra & anr., 1998 (1) B.Cr.C.317 and (iv) State of U.P...vs.. Mustakeem & ors.; Crimina Appeal Nos. 283-287/2002. Learned counsel, on the basis of the aforesaid judgments, would submit that custody of the cattle should be given to an organization like the applicant for welfare of cattle during the pendency of the trial. 7. Learned counsel for the applicant further submitted that in view of interim order dated 28.01.2009 passed by this Court, order passed by learned Sessions Judge, Bhandara was not acted upon during the pendency of this application and the applicant has secured custody of the cattle. It is submitted that the custody of the cattle, pending trial, should be kept with the applicant. 8. It is submitted that the custody of the cattle, pending trial, should be kept with the applicant. 8. Though non applicant nos.2 are duly served, none appears for the non applicant nos.2 and, therefore, pleadings and allegations in the application are uncontroverted. Learned A.P.P. submitted that this Court should look into the welfare of the cattle during the pendency of the case and pass appropriate orders. The learned A.P.P. further submitted that the Court should consider factual aspect as to whether non applicant nos.2 would be able to take care of the cattle during the pendency of trial. 9. I have carefully perused the judgment and order passed by learned Magistrate. In para 3 of the judgment, the learned Magistrate has taken note of the contentions on behalf of the present applicant. The applicant has sufficient facilities to maintain animals and the applicant is Taluka member of the People for Animals Society, Vidarbha Region, which is a society registered under the Societies Registration Act, which can properly preserve and maintain the animals till trial is over. The learned Magistrate in para 4 has recorded the arguments of the learned A.P.P. and has referred to the say of the Investigating Officer and has taken the note of the fact that 92 animals were being carried in four trucks by non applicant nos.2 for slaughtering purposes. The animals were tied in packed position, therefore 4 to 5 cows have died. Intention of non applicant nos. 2 was not genuine and, therefore, it was prayed by learned A.P.P. that applications filed on behalf of non applicant nos.2 before the learned Magistrate should be rejected. 10. In para 6 of the judgment, the learned Magistrate, on perusal of the say of Investigating Officer and considering relevant documents, has taken a note of the fact that while carrying 92 animals in four trucks, 4-5 animals have expired. The contention of non applicant no. 2 that animals were being carried in safe custody, was rejected by the Magistrate. The learned Magistrate has also recorded finding that in one truck about 23 cattle were being carried in violation of Rule 56 (c) of the Transport of Animals Rules, 1978. The contention of non applicant no. 2 that animals were being carried in safe custody, was rejected by the Magistrate. The learned Magistrate has also recorded finding that in one truck about 23 cattle were being carried in violation of Rule 56 (c) of the Transport of Animals Rules, 1978. The learned Magistrate has also taken note of the Circular of the Home Department, State of Maharashtra, dated 03.05.2008 wherein, it is marked that the cattle, which were being taken in cruelty, be handed over to Social Organization to avoid cruelty and for preservation of animals. Learned Magistrate further recorded finding in para 10 that the cattle, which were being taken to slaughter house, be handed over to the social organizations to avoid cruelty and for preservation. It is further recorded that, non applicant nos. 2 were not taking cattle for selling purposes but for slaughtering purposes. It is further recorded that Abdul Sheikh and Abdul Kureshi did not take proper care while carrying cattle and found some lacunae, which are reproduced as follows. 1. Proper care was not taken while transporting the animals as required by law. 2. The said animals were taken for being slaughtered. 3. The animals were treated with cruelty and in such a manner that, it was likely to cause hurt. 4. 5 to 6 animals are dead while transporting. 5. Animals were tied very tightly to each other. 6. Animals were not medically examined by Veterinary Doctor as required by law. 7. No permission sought by R.T.O. 11. On the basis of above mentioned lacunae, the Magistrate has drawn inference that the cattle were being taken for slaughtering purposes and if animals are handed over to Abdul Sheikh and Abdul Kureshi, the very purpose of the enactment of the provision of the Prevention of Cruelty to Animals Act shall be at stake. on the contrary, intention of applicant is found to be genuine. The learned Magistrate has further observed that there is sufficient space to maintain cattle with the applicant. The learned Magistrate has also taken note of the fact that 7/12 extract showing that the Society has 35 acres land having cattle sheds, 15 labourers, Manager, Veterinary Doctor are there to provide facilities to the cattle in the society. The learned Magistrate has further observed that there is sufficient space to maintain cattle with the applicant. The learned Magistrate has also taken note of the fact that 7/12 extract showing that the Society has 35 acres land having cattle sheds, 15 labourers, Manager, Veterinary Doctor are there to provide facilities to the cattle in the society. Therefore, the Magistrate, after satisfying himself on factual aspects and on the strength of material, which was produced on behalf of the parties, came to the conclusion that the present applicant can take proper care of the animals and they can preserve the same during the pendency of trial. Therefore, by order dated 11.09.2008, directed to hand over all seized cattle to applicant Deorao (except those are died), on executing indemnity bond of Rs. 2,50,000/- on certain conditions. 12. The revisional Court taken note in para 13 that it is an admitted fact that after seizure of trucks, Police registered Crime No. 38/2008 against 4 truck drivers under the provisions of the Maharashtra Animal Preservation Act, 1976 and Prevention of Cruelty to Animals Act, 1960. The revisional Court, relying on the judgment of the Apex Court in the case of Manager, Pinjarpole Deudar and anr. ..vs.. Chakram Moraji Nat and ors; AIR 1998, SC 2769 held that the non applicant nos. 2 are entitled to the custody. 13. On careful perusal of judgment and the order passed by revisional Court, the revisional Court has taken into consideration mainly two aspects namely, non applicant nos.2 herein, who are revision-petitioner are owners of the cattle and secondly, there is no possibility of the animals being subjected to cruelty. The revisional Court only relied upon the statement of non applicant nos. 2 that they will not send animals to slaughter house and, therefore, the revisional Court allowed the revision filed by non applicant nos.2. 14. Pausing here for a moment, it is necessary to look into the relevant provisions the Preservation of Cruelty to Animals Act, 1960 to decide the controversy in the present matter. Section 35 (2) of the Preservation of Cruelty to Animals Act, which has bearing on the issue involved, reads thus; “35. Treatment and care of animals.- (1) ..... 14. Pausing here for a moment, it is necessary to look into the relevant provisions the Preservation of Cruelty to Animals Act, 1960 to decide the controversy in the present matter. Section 35 (2) of the Preservation of Cruelty to Animals Act, which has bearing on the issue involved, reads thus; “35. Treatment and care of animals.- (1) ..... (2) The magistrate before whom a prosecution for an offence against this Act has been instituted may direct that the animal concerned shall be treated an 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 pinjarpole, 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.” Perusal of careful reading of Section 35(2) shows that the Magistrate is empowered to direct that the animal 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 pinjarpoe or if veterinary officer in charge of the area in which animals are 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. 15. In the instant case, the learned Judicial Magistrate First Class, Pauni taken into consideration the case diary and other relevant documents and also facts and circumstances of the case and also taken into consideration the well being of the animals to direct the custody of cattle to be given to the present applicant. The revisional Court has taken into consideration only two factors namely the ownership of all the cattle and undertaking given by non applicant no. 2. The important factor, which should have been taken into consideration by the revisional Court, is the arrangements made by non applicant no.2 for maintaining and keeping the cattle in good condition till disposal of the trial. 2. The important factor, which should have been taken into consideration by the revisional Court, is the arrangements made by non applicant no.2 for maintaining and keeping the cattle in good condition till disposal of the trial. The learned Magistrate has taken into consideration the factual position and capability of non applicant no.2 to maintain the cattle and directed to hand over custody of buffaloes to the present applicant. The order passed by learned Magistrate is in consonance with the aims and objectives of the Prevention of Cruelty to Animals Act. The important factor, which should have been considered by the revisional Court, is the factor of preparedness of non applicant no.2 for preservation and good maintenance of cattle during pendency of the trial. In fact, the learned Magistrate considered the applications filed by non applicant nos.2 as well as the applicant and on factual scenario found that the applicant herein is fully prepared and having means to maintain and preserve the cattle in good condition till trial is concluded. The Magistrate is empowered under Section 35 (2) of the Prevention of Cruelty to Animals Act and accordingly has rightly handed over custody of the cattle to the applicant. The learned Sessions Judge i.e. revisional Court has not actually assessed the entire position and preparedness of non applicant no.2 to maintain and preserve cattle during the pendency of trial, which was main and vital factor and which should be taken into consideration. The ownership of cattle was not the only one factor to be taken into consideration and, there are other important factors which have lost sight of the revisional Court. 16. This Court in Criminal Application No. 567/2009 decided on 08.10.2009 (Jivdaya Pashupakshi Saurakshan and Sanwardha Sanstha..vs..State of Maharashtra & anr.) in para 13, in the facts of that case, has taken into consideration the fact that non applicant no.2 i.e. owner of the bullocks in that case does not possess any license for purchase/sale of the bullocks and returning of the bullocks to him will mean that a person who does not hold license to sale or purchase, will get back possession of bullocks and to that extent there was violation of provisions of law. Therefore, what falls from the said judgment is that it is necessary to have license either to purchase or to sale of animals. Therefore, what falls from the said judgment is that it is necessary to have license either to purchase or to sale of animals. This Court, in the aforesaid judgment also, assessed the factual position and came to the conclusion that it will be unsafe to return the bullocks since non applicant no. 2 in that case could not satisfy the Court that he is fully prepared and he can really maintain the animals in good condition during pendency of the trial and, therefore, this Court held that bullocks, which are in the custody of the applicant in that case by virtue of interim order passed by the Court, will remain in the custody of the applicant till disposal of the trial. This Court set aside the impugned judgment and order of the revisional Court. 17. The issue involved in the present matter is identical to the one involved in Criminal Application No. 567/2009 and, therefore, the ratio laid down in that case would govern the present case also. That apart, in the present case, non applicant nos.2, though duly served, did not appear either in the person or through counsel at the time of final hearing. Therefore, so far as preparedness and capability of non applicant nos.2 to maintain cattle during the pendency of trial is remained to be assessed and in view of the absence of non applicant nos.2 before this Court, in spite of due service, it will have to be held that the applicant is fully prepared and capable to maintain the cattle during pendency of the trial. It is also important to note that this Court, by order dated 28.01.2009, granted stay to the order passed by revisional Court and as a result of which custody of the cattle is with the applicant. 18. For the aforesaid reasons, the Criminal Applications are allowed. Impugned judgment and order dated 16.01.2009 passed by Sessions Judge, Bhandara in Criminal Revision Nos. 85/2008, 86/2008, 87/2008 and 88/2008 is quashed and set aside. Order dated 11.09.2008 passed by Judicial Magistrate First Class, Pauni in Misc. Criminal Application Nos. 91/2008 and 92/2008 and 94/2008 in Crime No. 38/2008 of Police Station Adyal, is restored. Rule made absolute in terms of prayer clause (a) of the applications.