JUDGMENT : ROBIN PHUKAN, J. 1. Legality, propriety and correctness of Judgment and order dated 23.02.2021, passed by the learned Sessions Judge, Sivasagar, in Criminal Revision Petition No. 4(4)/2020, and the order dated 09.10.2020 passed by the learned S.D.J.M. (M) in Nazira P.S. Case No. 424/2020 is put to challenge in this revision petition, under section 397/399/401/482 of the Code of Criminal Procedure, by the petitioner Md. Rahimuddin. 2. It is to be noted here vide impugned Judgment and Order 23.02.2021, the learned Sessions Judge, Sivasagar has dismissed the revision petition filed by the petitioner and upheld the order dated 09.10.2021, passed by the learned S.D.J.M. (M), Nazira dismissing the petition filed by the petitioner seeking custody of the seized cattle/cows. 3. The factual background leading to filing of the present petitions is adumbrated herein-below: “The petitioners, namely, Md. Rahimuddin had purchased 34 numbers of cattle from Naharkatiya Mangalbariya Bazar on 22.09.2020 and carried the same to Kharupatia in three Mini Trucks for business purpose. At about 3.23 p.m. on that day one Shri Jayanta Rajkhowa, President, Tai Ahom Yuva Parisad, Assam stopped the Trucks, in front of Nazira Lakhimi Ali of Nazira Nagar and lodged an FIR with the O/C Nazira Police Station for carrying 34 cattle disobeying the provision of Prevention of Cruelty to Animals Act. Upon the said FIR the O/C Nazira P.S. has registered a case, being Nazira P.S. Case No. 424/2020, under section 11(1)(a)(d)(e) of the Prevention of Cruelty to Animals Act, 1960. Thereafter, police seized the cattle and handed them over to Krishna Govardhandhari Gaushala. Thereafter, the petitioner has filed one petition before the learned SDJM (M), Nazira, seeking custody of the seized cattle. But, the learned SDJM(M) had, vide impugned order dated 06.10.2020, rejected the petition and also directed the petitioner to execute a bond of Rs. 2,32,807.50 (Rupees Two Lacs Thirty Two Thousand Eight Hundred and Seven point Fifty Paisa) being the maintenance cost. Thereafter, the petitioner had preferred one revision petition before the learned Sessions Judge, Sivasagar against the impugned order, dated 06.10.2020. But, vide impugned Judgment and Order, dated 23.02.2021, the learned Sessions Judge, Sivasagar had dismissed the revision petition.” 4. 2,32,807.50 (Rupees Two Lacs Thirty Two Thousand Eight Hundred and Seven point Fifty Paisa) being the maintenance cost. Thereafter, the petitioner had preferred one revision petition before the learned Sessions Judge, Sivasagar against the impugned order, dated 06.10.2020. But, vide impugned Judgment and Order, dated 23.02.2021, the learned Sessions Judge, Sivasagar had dismissed the revision petition.” 4. Being highly aggrieved by the impugned judgment and orders, the petitioners approached this Court by filing the instant petition on the following grounds: (i) that, the learned Court below had failed to consider the fact that the informant had lodged the case on personal grudge on being failed to make payment of 50 lacs as demanded by him. (ii) that, the learned Court below failed to appreciate that the petitioner has purchased the cattle for business purpose and he had genuine receipt of purchasing the same. (iii) that, the learned Court below utterly failed to consider the fact that after handing over the custody of the cattle to Krishna Gabardhandhari Gaushala, the condition of the cattle becomes worse and seven cattle had already died due to improper care. (iv) that, the learned court below had failed to appreciate the fact that there is no bar in purchase and sale of cow in open market, and that the impugned judgment and orders caused serious miscarries of justice. 5. Heard Mr. M.U. Mahmud, learned counsel appearing on behalf of the petitioner. Also heard Mr. S. Chamaria, learned counsel appearing on behalf of the respondent No. 5 and Mr. D. Das, learned Addl. P.P. 6. Mr. Mahmud, the learned counsel for the petitioner, submits thatthe petitioner had purchased 34 numbers of cattle from Mangalbaria Bazar of Naharkatiya and carries the same to Kharupetiua for agricultural purpose in three Trucks, and he has all the receipts, which are enclosed with the petition from page 22 to 27. Mr. Mahmud further submits that there is no bar in inter district transport of the animals and that out of 34 cattle, 7 cattle had already died in the custody of the respondent No. 5, and in the meantime more cattle might have died and till conclusion of trial all of them will die as no proper care and treatment has been provided to them. It is the further submission of Mr. It is the further submission of Mr. Mahmud that keeping the cattle in the custody of the respondent No. 5 is an abuse of the process of the court and for the better maintenance of the cattle, their interim custody may be given to the petitioner and that impugned judgment and orders suffers from manifest illegalities and therefore, it is contended to set aside the same. 7. On the other hand, Mr. D. Das, learned Addl. P.P. submits that the petitioner has purchased the cattle for slaughtering and therefore, the same cannot release in the custody of the petitioner. Mr. Das further submits that there is difference of address of the petitioner and sometimes he had mentioned the same as Kharupetia in Page No. 22 of the petition, and sometimes as Udalguri and as such the cattle could not be released in his custody. 8. Per contra, Mr. Chamaria, the learned counsel for the respondent No. 5, submits that the petition is not maintainable and the cattle cannot be given in his custody as he is an accused here in this case. It is further submitted that the extra-ordinary power under section 482 Cr.P.C., can be exercised only in rare and in exceptional cases and the petitioner, from the assertions made in the petition, had failed to demonstrate the same. Mr. Chamaria further submits that the impugned judgment and orders suffers from no infirmity, and therefore, the same does not call for any interference from this court. Mr. Chamaria also referred following case laws to make good of his submissions: (i) Laxmi Bai Patel vs. Shyam Kumar Patel, MANU/SC/0344/2002 (ii) Amit Kapoor vs. Ramesh Chander and Others, MANU/SC/0746/2012 (iii) Saraju Ray vs. State of Assam and Another, Crl. Pet. No. 574/2021 (iv) Dhyan Foundation vs. State of Assam and Others, Crl. Pet. No. 452/2020 9. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the case laws, referred by Mr. Chamaria, learned counsel for the respondent No. 5. Also I have carefully gone through the impugned judgment and order passed by the learned courts below. 10. A careful perusal of the FIR reveals that the case has been registered under section 11(1)(a)(d) (e) of the Prevention of Cruelty to Animals Act, 1960. Chamaria, learned counsel for the respondent No. 5. Also I have carefully gone through the impugned judgment and order passed by the learned courts below. 10. A careful perusal of the FIR reveals that the case has been registered under section 11(1)(a)(d) (e) of the Prevention of Cruelty to Animals Act, 1960. It also appears that the Investigating Officer (I.O.) had seized 34 numbers of cattle on 22.09.2020, vide seizure list, which is annexed with the petition as Annexure-2. Further it appears that the I.O. had also seized five receipts bearing No. 380, 359, 383, 384, and 358 issued by Naharkatia Mangalbaria weekly market. Further it appears that the petitioner has also enclosed with the petition some receipts of Naharkatia Mangalbaria weekly market, from Page No. 22 to 27. It is to be noted here that genuineness of these documents had never been disputed by the respondents. These documents demonstrate that the petitioner had purchased the seized cattle from Naharkatia Mangalbaria weekly market. 11. It is also not in dispute that the seized cattle were given in the custody of the respondent No. 5, i.e. Krishna Gabardhandhari Gaushala, Nazira, and out of 34 cattle, 7 cattle had already died in the custody of the respondent No. 5. The death of 7 cattle in the custody of the respondent No. 5, according to Mr. Mahmud, the learned counsel for the petitioner, is a news of several months old, and he has apprehension that in the meantime more cows might have died in the custody of the respondent No. 5, due lack of proper care and treatment. The submission of Mr. Mahmud is not refuted by the respondents. And from the order dated 06.01.2021, also it becomes apparent that seven numbers of cattle already died in the custody of the respondent No. 5. 12. A careful perusal of the impugned order dated 06.10.2020, reveals that the learned SDJM (M), Nazira while dismissing the petition filed by the petitioner, had observed as under: “Keeping the above observation in mind and by applying the Rules prescribed under the Prevention of Cruelty to Animals (Care and Maintenance of Case property Animals) Rules, 2017 in my opinion the continuation of custody of the seized cattle with the applicant Gaushala is in the interest of the cattle where they can be properly maintained. In case the seized cattle are released to the petitioner/alleged purchaser, the possibility of their slaughtering cannot be ruled out as the petitioner nowhere mentioned that he was carrying the 34 numbers of cattle from Naharkatiya to Darrang for agriculture purpose. Therefore, in my view till the pendency of this case, the applicant Gaushala should remain the custodian of the seized cattle.” 13. The learned SDJM (M), Nazira also directed vide aforesaid order the petitioner was directed to execute a bond of Rs. 2,32,807.50 (Rupees Two Lacs Thirty Two Thousand Eight Hundred and Seven Point Fifty Paisa) with a surety within three days and in default to forfeit the cattle to the Gaushala, as per Rule 5(1) of the Prevention of Cruelty to Animals (care & Maintenance of Case Property Animals) Rules, 2017. 14. It also appears from the impugned Judgment and Order, dated 32.02.2021, in Criminal Revision Petition No. 4(4) of 2020, that the learned Sessions Judge has upheld the order of the learned SDJM (M), Nazira. Now, what left to be seen is whether the impugned judgment and orders, withstand the test of legality propriety and correctness. 15. While dealing with custody of animals, seized under the Prevention of Cruelty to Animals Act, Hon’ble Supreme Court in the case of Manager, Pinjrapore Deudar vs. Chakram Moraji Nat, MANU/SC/0557/1998, had held as under: “In view of the above discussion and provisions of Section 451 Cr.P.C. it appears to us that unless the owner of the animal in respect of which he is facing prosecution, is deprived of the custody (which can be done only on his conviction under the Act for the second time), no bar can be inferred against him to claim interim custody of the animal.” 16. It is further held in the said case that: “Now adverting to the contention that under Section 35(2), in the event of the animal not being sent to infirmary, the Magistrate is bound to give the interim custody to Pinjrapole, we find it difficult to accede to it. We have noted above the options available to the Magistrate under Section 35(2). That subsection vests in the Magistrate the discretion to give interim custody of the animal to Pinjrapole. The material part of subsection (shorn of other details) will read, the Magistrate may direct that the animal concerned shall be sent to a Pinjrapole. We have noted above the options available to the Magistrate under Section 35(2). That subsection vests in the Magistrate the discretion to give interim custody of the animal to Pinjrapole. The material part of subsection (shorn of other details) will read, the Magistrate may direct that the animal concerned shall be sent to a Pinjrapole. Sub-Section (2) does not say that the Magistrate shall send the animals to Pinjrapole. It is thus evident that the expression “shall be sent” is part of the direction he decides to give interim custody to Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not bound to hand over custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, Pinjrapole has no preferential right. In deciding 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 and 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 seized, 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 and seizure; (5) the possibility of the animal being again subjected to cruelty. There cannot be any doubt that establishment of Pinjrapole is with the laudable object of preventing unnecessary pain or suffering to animals and providing protection to them and birds. But it should also be seen: (a) whether the Pinjrapole is functioning as an independent organization or under the scheme of the Board and is answerable to the Board and (b) whether the Pinjrapole has good record of taking care of the animals given under its custody. But it should also be seen: (a) whether the Pinjrapole is functioning as an independent organization or under the scheme of the Board and is answerable to the Board and (b) whether the Pinjrapole has good record of taking care of the animals given under its custody. A perusal of the order of the High Court shows that the High court has taken relevant factors into consideration in coming to the conclusion that it is not a fit case to interfere in the order of the learned Additional Sessions Judge directing the State to hand over the custody of animals to the owner.” 17. Again in the case of Bharat Amratlal Kothari vs. Dosukhan Samadkhan Sindhi, MANU/SC/1799/2009, in paragraph No. 17, Hon’ble Supreme Court had held as under: “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. IIC. 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 than 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.” 18. 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.” 18. Keeping the ratios, laid down in the aforementioned cases in mind, while the impugned judgment and orders are examined in the light of facts and circumstances on the record, this court left unconvinced that the same withstands the test of legality, propriety and correctness. Therefore, the submissions, so advanced by the learned counsel for the respondents cannot be acceded to. Though the learned counsel for the respondent No. 5 had raised the issue of jurisdiction of this court under section 482 of the Code of Criminal Procedure, and referred two case laws in support of his submission, yet, I find that here in this case there exists exceptional circumstances. It is clearly averred and also submitted by the learned counsel for the petitioner that out of 34 seized cattle, seven have already died in the custody of the respondent No. 5 due to lack of proper care and treatment and till date several others might have died and at the end of trial there might remain none and in that case the petitioner will suffer irreparable loss. This contention, having not been refuted by the learned counsel for the respondent, to the considered opinion of this court is an exceptional ground to maintain a petition under section 482 Cr.P.C. 19. It appears from the impugned order of the learned SDJM (M) Nazira that he had only apprehension that the cattle may be slaughtered as the petitioner had nowhere in the petition, mention that he had carried 34 numbers of cattle from Naharkatiya to Darrang for agriculture purpose. The apprehension of the learned court below seems to be totally unfounded. Mr. Mahmud, the learned counsel for the petitioner, during hearing, had rule out any such possibility and assured to maintain them properly and to produce them before the court whenever directed. 20. Under the facts and circumstances discussed herein above I fine sufficient merit in this revision petition, and accordingly, the same stands allowed. The impugned Judgment and Orders passed by the learned courts below stands set aside and quashed. 20. Under the facts and circumstances discussed herein above I fine sufficient merit in this revision petition, and accordingly, the same stands allowed. The impugned Judgment and Orders passed by the learned courts below stands set aside and quashed. The seized cattle shall be given in the interim custody of the petitioner pending trial, on the following terms and conditions that: (i) They shall not be subjected to any cruelty. (ii) They shall be produced before the learned trial court as and when directed. (iii) They shall be maintained and taken care of in the same condition in which he received them. (iv) They shall not be sold or handed over to anyone else. (v) The petitioner shall execute a bond of Rs. 2 lac, before the learned trial court. (vi) The petitioner shall appraise the learned trial court as to the place where they shall be kept and maintained. (vii) In case of death of any cattle, the petitioner shall inform the learned trial court about the same without delay. (viii) Health inspection and identification and ear tagging of the cattle, if not done earlier as per Rule 3(a) of the Prevention of Cruelty to Animal (Care and Maintenance of Case property Animal) Rules 2017, has to be done before releasing them in custody of the petitioner. (ix) The petitioner shall clear all dues, which the respondent No. 5 is legally entitled to for maintaining them till the date of release from the date of giving custody to it. 21. In view of the issues raised in this petition, I deemed it proper and also appropriate to direct the learned trial court to make endeavor to dispose of the case with in a period of six months, if in the meantime charge sheet is submitted. 22. In the given facts and circumstances it is provided that the parties shall bear their own costs.