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2024 DIGILAW 316 (BOM)

Dhyan Foundation v. State of Goa

2024-02-12

B.P.DESHPANDE

body2024
JUDGMENT/ORDER 1. Rule. Rule is made returnable forthwith. Heard the matter at the admission stage for final disposal with consent. 2. The Petitioner being a Society registered under the Societies Registration Act, having its office at New Delhi, through its representative, preferred the present Petition under Sec. 482 of Cr.P.C. and Articles 226 and 227 of the Constitution of India, thereby challenging the orders passed by the learned Magistrate dtd. 30/7/2022 in Criminal Miscellaneous Application No. 271/Release/2022/C and the order of the learned Additional Sessions Judge, South Goa, Margao dtd. 8/9/2022 passed in Criminal Revision Application No. 48/2022. 3. Heard Mr. Harish Pandya for the Petitioner, the learned Additional Public Prosecutor, Mr. Nikhil Vaze for Respondent Nos. 1 and 2 and Mr. Arun Bras De Sa for Respondent No. 3. 4. Mr. Pandya, learned Counsel for the Petitioner would submit that both the orders passed by the Courts below are perverse and illegal and are passed without considering the material placed on record. He submits that the custody of two bulls, which is with the Petitioner-Society could not have been ordered to be handed over to Respondent No. 3 since he failed to establish the ownership. Mr. Pandya would submit that there are no documents of the ownership produced by Respondent No. 3. Similarly, even though there is material to show that the bulls were treated with cruelty and they were tied to one tree only with the intention to sell for slaughter, this Court should intervene and reject the claim of Respondent No. 3 for possession of such cattle. 5. Mr. Pandya would submit that the Petitioner is a Society taking care of the cattle/animals and therefore, the custody of the animals will be safe with the Society. It is submitted that only upon proving the ownership, such an order could have been passed. He claimed that the findings of both the Courts below are perverse and thus, need interference. 6. Mr. Pandya would further submit that the custody of the bulls was handed over to the Petitioner-Society by the Police. However, he admits that there is no documentation placed on record. So also, neither an FIR was registered nor a panchanama was drawn while handing over the bulls to the Petitioner. However, he insisted that only because the Police failed to perform their duty, the animals should not suffer further cruelty. 7. Mr. However, he admits that there is no documentation placed on record. So also, neither an FIR was registered nor a panchanama was drawn while handing over the bulls to the Petitioner. However, he insisted that only because the Police failed to perform their duty, the animals should not suffer further cruelty. 7. Mr. Nikhil Vaze, the learned Additional Public Prosecutor appearing for the State would submit that since there is no FIR or investigation or inquiry pending of the alleged contentions raised by the Petitioner in any Police Station or Court, the orders passed by the Trial Court and confirmed by the first Appellate Court, cannot be considered as perverse or intervened with the same in favour of the Petitioner. He submits that the Petitioner's custody is only interim and therefore, once the owner comes before the Court and succeeds in seeking the relief of the custody of the animals, the Petitioner has no locus to challenge such orders. 8. Mr. De Sa, learned Counsel appearing for Respondent No. 3 claimed that the provisions of Cr.P.C. are only for temporary custody and since neither any FIR is registered nor any investigation is going on, the powers of search and seizure, cannot be gone into. He submits that the Petitioner in its Application/ Complaint admitted that they took custody of the cattle/animals for the purpose of care and protection. He submits that such a reply is filed on behalf of the investigating agency and therefore, no further interference is warranted. 9. Rival contentions fall for determination. 10. In the Petition itself, averments are made from paragraph 10 onwards, wherein it is claimed that Mr. Gaurav Yadav, Member of the Goa State Animal Welfare Board and District Society for Prevention of Cruelty to Animals, South Goa, received specific information that one Mr. Francis brought two bulls on 15/7/2022, one white and one black and tied them in a plot about 300 metres away from his house to supply them for illegal slaughter. It is further claimed that said Francis is regularly procuring cattle to supply them for bullfighting and illegal slaughter for the beef trade and he kept the said two bulls in a cruel manner without any protection and care. The animal activist then called the Police at the spot. It is further claimed that said Francis is regularly procuring cattle to supply them for bullfighting and illegal slaughter for the beef trade and he kept the said two bulls in a cruel manner without any protection and care. The animal activist then called the Police at the spot. The Police arrived and after verifying the information called the Petitioner with a vehicle to take custody of the bulls for safety. Accordingly, the bulls were shifted in the vehicle of the Petitioner to the Gaushala at Kholkar Farm, Betul. Since then, the bulls have been in the custody of the Petitioner and are taken care of by the Petitioner. 11. It is further claimed that Mr. Gaurav Yadav filed a complaint dtd. 16/7/2022 at Colva Police Station with a request to lodge an FIR against Mr. Francis for the offence punishable under the Prevention of Cruelty to Animals Act, 1960 [the Act of 1960, for short] and other relevant Acts including the IPC. Instead of registering the FIR, Colva Police registered NC No. 198/2022 on 18/7/2022 thereby invoking provisions of Sec. 11 of the Act of 1960. It is submitted that even though NC was registered, the Petitioner is in the custody of the said cattle and taking proper care. 12. Respondent No. 3 filed Criminal Miscellaneous Application No. 271/2022 before the learned Magistrate seeking custody of the cattle claiming to be the owner. On getting knowledge of such an Application filed by Respondent No. 3, Mr. Gaurav Yadav filed a supplementary complaint with the Colva Police Station to add Respondent No. 3 as Accused and to register an FIR against him. Since there was no response from Colva Police and even from the Superintendent of Police, Mr. Gaurav Yadav filed an Application under Sec. 156 of Cr.P.C. before the learned Magistrate, which was registered as Criminal Miscellaneous Application No. 297/2022. 13. The Petitioner appeared in Criminal Miscellaneous Application No. 271/2022 filed by Respondent No. 3 for custody of the cattle and opposed it by filing a reply. The learned Magistrate vide impugned order dtd. 30/7/2022 allowed such Criminal Miscellaneous Application, thereby directing the custody of the bulls to be handed over to Respondent No. 3. The Petitioner then challenged such order before the learned Sessions Court by filing Criminal Revision Application No. 48/2022. However, such Revision was rejected vide impugned judgment and order dtd. 8/9/2022. 14. The learned Magistrate vide impugned order dtd. 30/7/2022 allowed such Criminal Miscellaneous Application, thereby directing the custody of the bulls to be handed over to Respondent No. 3. The Petitioner then challenged such order before the learned Sessions Court by filing Criminal Revision Application No. 48/2022. However, such Revision was rejected vide impugned judgment and order dtd. 8/9/2022. 14. With this factual matrix, the present Petition is filed on various grounds as found in the Petition. 15. NC complaint registered at Colva Police Station is dtd. 18/7/2022, wherein it shows that since the allegations in the said complaint are in the nature of non-cognizable offence, the complainant was directed to approach the Court of law as per Sec. 155 of Cr.P.C. The name of the complainant is recorded as Mr. Gaurav Yadav. 16. The Petitioner in the present Petition is a Society represented by its authorised representative, Mrs. Swati Shilker. In the Petition itself, it has been claimed that one Mr. Gaurav Yadav is the Member of the Goa State Animal Welfare Board and District Society for Prevention of Cruelty to Animals, South Goa. Thus, it is clear that Mr. Gaurav Yadav is not directly connected with the Petitioner, though he claims to be a Member of the Goa State Animal Welfare Board. 17. It is also a fact that after registering the non-cognizable case and directing Mr. Gaurav Yadav to approach the Court of law, said Gaurav Yadav filed an Application under Sec. 156(3) before the learned Magistrate. Mr. De Sa appearing for Respondent No. 3 would submit that such Application filed by Mr. Gaurav Yadav under Sec. 156(3) of the Cr.P.C. is rejected by the Magistrate. This fact has not been disputed by the Petitioner. Admittedly, no further proceedings were initiated by Mr. Gaurav Yadav for registering the FIR. The Petitioner, who admittedly is not the complainant or the informant, does not have any locus to claim that the Magistrate should have ordered the Police to register the FIR and to carry out the investigation. 18. The fact of this matter clearly goes to show that temporary custody was handed over to the Petitioner orally by the Police as tried to be claimed in the matter. This fact is not at all supported by any material. 19. 18. The fact of this matter clearly goes to show that temporary custody was handed over to the Petitioner orally by the Police as tried to be claimed in the matter. This fact is not at all supported by any material. 19. Respondent No. 3 filed an Application under Sec. 457 of Cr.P.C. claiming that he is in the business of dairy farming as well as agricultural activities of cultivation and owns bulls for the purpose of ploughing the fields. It was his contention that based on some false information given by one Agnelo to the Police, the Petitioner took the custody of two bulls belonging to the Applicant without his knowledge and consent. He even filed a complaint about the disappearance of his two bulls. He, therefore, prayed that the custody of two bulls be handed over to him. 20. Respondent No. 3 placed necessary documents in support of his contention including photographs, aadhar card, krishi card and the complaint filed with regard to the missing bulls. 21. Notice was issued to the Petitioner to appear before the learned Magistrate and the Petitioner filed the objection/reply. The learned Magistrate vide its impugned order dtd. 30/7/2022 considered the submissions of both the parties and passed a detailed order. Accordingly, the Application was partly allowed, thereby directing the Petitioner to hand over the two bulls to Respondent No. 3 on execution of indemnity bond of Rs.2.00 lakhs. Various stringent conditions were imposed on Respondent No. 3 by the learned Magistrate while passing such orders. 22. The Petitioner then challenged the order of the learned Magistrate by filing a Criminal Revision Application No. 48/2022 before the Sessions Court, Margao. The learned Additional Sessions Judge vide its impugned order dtd. 8/9/2022 rejected such Revision by giving detailed findings. With this background, the Petition filed by the Petitioner, who happens to be the Society and has only temporary custody of the bulls, needs to be considered. 23. Mr. De Sa would submit that Sec. 34 of the Act of 1960 deals with the general power of seizure for examination. 8/9/2022 rejected such Revision by giving detailed findings. With this background, the Petition filed by the Petitioner, who happens to be the Society and has only temporary custody of the bulls, needs to be considered. 23. Mr. De Sa would submit that Sec. 34 of the Act of 1960 deals with the general power of seizure for examination. In this provision, any Police Officer above the rank of a Constable or any person authorised by the State Government in this behalf, who has a reason to believe that an offence against this Act has been or is being, committed in respect of any animal, may, if in his opinion the circumstances so require, seize the animal and produce the same for examination by the nearest Magistrate or by such veterinary Officer as may be prescribed and such Police Officer or authorised person may, when seizing the animal, require the person in charge thereof to accompany it to the place of examination. 24. Mr. De Sa would submit that there is also a procedure for issuing search warrant as provided under Sec. 33 of the Act of 1960, but, such power has to be exercised only upon information in writing and after such inquiry as the Magistrate thinks fit and has a reason to believe that the offence under the said Act of 1960 is being committed. 25. Mr. De Sa would then submit that since no offence is registered with regard to the animals in question, the custody of such animals, pending litigation, would not arise. He is right in submitting that since no matter is pending even with the Police or with the Magistrate in connection with cruelty to the said two bulls, the question of continuing the custody of both the bulls with the Petitioner will not arise. 26. Mr. De Sa would submit that at the most, the provisions of the Cattle-Trespass Act, 1871 would apply, wherein the aspect of pound and pound keepers are provided for the purpose of keeping such cattle. The aspect of impounding the cattle and the authority of the Police to seize the cattle is provided under Sec. 10 of the Cattle-Trespass Act. Similarly, Sec. 13 of the Cattle-Trespass Act deals with the delivery of the cattle to the owner when such a claim is raised. The aspect of impounding the cattle and the authority of the Police to seize the cattle is provided under Sec. 10 of the Cattle-Trespass Act. Similarly, Sec. 13 of the Cattle-Trespass Act deals with the delivery of the cattle to the owner when such a claim is raised. He submits that such procedure is separate then the procedure provided under the Cr.P.C., which has been adopted by the Magistrate in the present matter. 27. Be that as it may, the first and foremost aspect in the present Petition is the locus of the Petitioner to challenge the orders passed by the Courts for handing over two bulls to Respondent No. 3, specifically when the Petitioner is neither the complainant nor the Authority to keep such cattle with it forever. 28. From the Petition itself, it is clear that both the bulls were handed over to the Petitioner without any complaint, seizure report or even any documents either by the Police or by any other Authority, who are dealing with the welfare of the cattle. The case put forth by the Petitioner is that the two bulls were found tied during the night without any shelter or otherwise and on a complaint filed by someone, the Police called the Petitioner's representative, who on taking custody, took both the bulls to their Gaushala. The Petitioner neither filed any complaint nor claimed ownership of the two bulls. Only because the Petitioner claimed that the bulls were tied to the tree, they were subjected to cruelty by the owner, cannot be accepted. After taking custody of the bulls, the Petitioner failed to produce any medical or veterinary report of the said bulls so as to justify any cruelty as claimed. 29. Since it is the case of Respondent No. 3 that the bulls were taken away with the help of the Police and only a NC was registered, Respondent No. 3 applied to the learned Magistrate for custody. Both the Courts below accepted the version of Respondent No. 3 in connection with the claim of ownership of the bulls by Respondent No. 3. Moreover, the learned Magistrate put stringent conditions on Respondent No. 3 including execution of an indemnity bond of Rs.2.00 lakhs, to be furnished before taking the custody of the bulls. 30. Both the Courts below accepted the version of Respondent No. 3 in connection with the claim of ownership of the bulls by Respondent No. 3. Moreover, the learned Magistrate put stringent conditions on Respondent No. 3 including execution of an indemnity bond of Rs.2.00 lakhs, to be furnished before taking the custody of the bulls. 30. The Petitioner in the present Petition is not challenging the jurisdiction of the learned Magistrate or that of the Revisional Court to entertain the Application for custody of the bulls filed by Respondent No. 3. Thus, the only aspect which needs to be considered is the locus of the Petitioner to challenge such orders and that too when there is no FIR, investigation or inquiry pending either with the Police or the Court or any other Officer under the provisions of the Act of 1960 or under the CattleTrespass Act, 1871. 31. Mr. Pandya would submit that there are various decisions passed by the Apex Court and also by the High Courts with regard to the cruelty to the animals. With respect, such decisions will not help the Petitioner in the present matter as the issue involved in this matter is distinct and separate and revolves upon the locus of the Petitioner as well as the orders passed by the Courts below for granting custody of the bulls in favour of Respondent No. 3 and that too with stringent conditions. 32. The decisions referred to in the present case are in connection with the custody of animals in distress or wherein the matters are pending with regard to the cruelty of such animals. The matter in hand is totally distinct and separate for the simple reason that neither a FIR nor any investigation is pending as on date. 33. Mr. Gaurav Yadav, who filed the NC complaint and thereafter approached the Magistrate under Sec. 156(3) of the Cr.P.C. was unsuccessful in connection with the registration of a FIR as the learned Magistrate has rejected his Application. Thus, first of all, the Petition cannot be entertained as the Petitioner has no locus to claim permanent custody of the bulls and secondly, there is no illegality or perversity in the impugned orders. 34. For the reasons disclosed above, the Petition deserves to be dismissed. Accordingly, the Petition stands dismissed. Rule stands discharged. 35. Pending Criminal Miscellaneous Application No. 794 of 2023 (F) also stands disposed of.