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2013 DIGILAW 723 (UTT)

Narad Joshi v. State of Uttarakhand

2013-11-18

U.C.DHYANI

body2013
JUDGMENT : U. C. Dhyani, J. 1. Since the above applications under Section 482 Cr. P.C. and criminal revision arise out of the same subject matter, therefore, they are being decided by this common judgment and order. 2. An F.I.R. was lodged by S.I. Shri Manohar Singh Pangti, Police Station Kichha against 3 unknown persons on 17.05.2010, which was registered as case crime no.83/2010 under Section 3/11(1) of the Uttarakhand Protection of Cow Progeny Act, 2007, Section 11(d) of the Prevention of Cruelty to Animals Act, 1960 and Section 429 IPC. After the investigation, a chargesheet was submitted against Saleem, Bilal and Rehaan for the selfsame offences. 3. Accused persons Saleem and Bilal moved two separate applications before learned Judicial Magistrate, Udham Singh Nagar for release of 46 oxen. The same was objected to by the prosecution on the grounds, inter alia, that the said animals (cattle) were given in superdagi of Golok Dham, Kanakpur, District Udham Singh Nagar and were under the treatment of veterinary officer. The animals were recovered from the accused persons, who were carrying them in a truck. Charges for the offences punishable under the Uttarakhand Protection of Cow Progeny Act 2007 and Prevention of Cruelty to Animals Act 1960 alongwith Section 429 IPC were leveled against them. Learned Judicial Magistrate, vide orders dated 05.06.2010 and 26.06.2010, rejected the applications for release of cattle in favour of accused Saleem and Bilal (respondent no.2 herein). 4. Feeling aggrieved against the same, two separate criminal revisions no.127/2010 and 143/2010 were preferred by the accused persons. Both criminal revisions were allowed by the revisional court, vide judgments and orders dated 17.06.2010 and 28.06.2010 passed in criminal revisions no.127/2010 and 143/2010 respectively. The orders passed by learned Magistrate were set aside by the revisional court and the animals (cattle) were directed to be released in favour of accused-respondent on furnishing a personal bond and an undertaking that the same (animals) will be produced by the accused persons before the court, as and when required. A direction was also given that the cattle will not be transferred to anyone else. 5. Aggrieved against the judgments and orders dated 17.06.2010 and 28.06.2010 passed in criminal revisions no.127/2010 and 143/2010 respectively, two separate applications under Section 482 Cr. P.C. were filed by the applicant, who is the manager of Golok Dham, Kanakpur, District Udham Singh Nagar. A direction was also given that the cattle will not be transferred to anyone else. 5. Aggrieved against the judgments and orders dated 17.06.2010 and 28.06.2010 passed in criminal revisions no.127/2010 and 143/2010 respectively, two separate applications under Section 482 Cr. P.C. were filed by the applicant, who is the manager of Golok Dham, Kanakpur, District Udham Singh Nagar. A criminal revision was filed by the State of Uttarakhand against judgment and order dated 28.06.2010 passed in criminal revision no.143/2010. When the applications under Section 482 Cr. P.C. alongwith criminal revision were preferred, this Court, vide orders dated 06.07.2010 and 02.07.2010 directed, as an interim measure, that if the cattle are not already released in favour of the respondent no.2, the operation of the impugned judgments and orders dated 17.06.2010 and 28.06.2010 passed in criminal revisions no.127/2010 and 143/2010 respectively shall remain stayed, until further orders of this Court. 6. The judgment rendered by Hon’ble Madhya Pradesh High Court in Secretary, Gopal Goshala Jhonkar vs. Ramesh and others reported in 2009 (4) MPHT 182 decided on 28.11.2008 is placed before this Court. The judgment rendered by Hon’ble Andhra Pradesh High Court in Mohd. Moinuddin vs. State of Andhra Pradesh delivered on 07.07.2010 passed in Criminal Revision Case no.1181 of 2010 is also placed before this Court by learned State counsel and learned counsel for applicant. Both the judgments referred to above placed reliance upon the unreported judgment of Hon’ble Apex Court in State of Uttar Pradesh vs. Mustakeem and others in Criminal Appeal no.283-287 of 2002, decided on 22.02.2002, wherein the Hon’ble Apex Court held as follows:- “The State of Uttar Pradesh is in appeal against the direction of the Court directing release of the animals in favour of the owner. It is alleged that while those animals were transported for the purpose of being slaughtered, an FIR was registered for alleged violation of the provisions of Prevention of Cruelty to Animals Act, 1960, and the specific allegation in the FIR was that the animals were transported for being slaughtered, and the animals were tied very tightly to each other. The criminal case is still pending. On an appeal for getting the custody of the animals being filed, the impugned order has been passed. The criminal case is still pending. On an appeal for getting the custody of the animals being filed, the impugned order has been passed. We are shocked as to how such an order could be passed by the learned Judge of the High Court in view of the very allegations and in view of the charges, which the accused may face in the criminal trial. We, therefore, set aside the impugned order and direct that these animals be kept in the Goshala and the State Government undertakes to take the entire responsibility of the preservation of those animals so long as the matter is under trial. The appeals stand disposed of accordingly.” 7. The facts of the instant case are identical to the case of Mustakeem’s case (supra). The criminal trial against the respondents (Saleem and Bilal) is pending adjudication before learned Magistrate. They have been charge-sheeted not only in respect of the Prevention of Cruelty to Animals Act, 1960, but also for violation of the Uttarakhand Protection of Cow Progeny Act, 2007, as also under Section 429 IPC. 8. Judging from the above yardstick, this Court is of the opinion that accused respondents are not entitled to the interim custody of seized cattle. Whereas the orders passed by learned Judicial Magistrate suffer from no infirmity, the orders passed by the revisional court are contrary to the law laid down by the Hon’ble Apex Court in Mustakeem’s case (supra). The orders of the revisional court are, therefore, liable to be set aside. 9. The orders dated 17.06.2010 and 28.06.2010 passed by the Sessions Judge, District Udham Singh Nagar in criminal revisions no.127/2010 and 143/2010 respectively are hereby set aside. The orders dated 05.06.2010 and 26.06.2010 passed by learned Judicial Magistrate are hereby affirmed. 10. Criminal revision preferred by the State of Uttarakhand is accordingly allowed. Both the applications under Section 482 Cr. P.C. are also accordingly disposed of.