Mustakeem vs State of U.P. and Others

I.M. Quddusi, J.—The above-mentioned writ petition and Criminal Revisions involving common question relating to the order of learned Judicial Magistrate rejecting the applications for release of cattle in cases u/s 3/5A/8 of Prevention of Cow Slaughter Act. 307/41, 411, I.P.C., and Section 11 of the Cruelty to Animals Act.

Criminal Revision No. 1519 of 1998 has been filed against the judgment and order dated 12.6.1998 passed by 3rd Additional Sessions Judge, Deoria, releasing the cattle on certain conditions.

I have heard learned Counsel for the Petitioner, learned Counsel for revisionists and Sri A.B. Saran, learned senior counsel appearing on behalf of gaushala and learned A.G.A. for the State. Sri A.B. Saran argued that all the cattle should be handed over to gaushala. These cattle were taken into custody by the police after registering cases against the persons under whose custody, these cattle were found. The date of incident, case crime No. and PS. and the criminal case No. showing the date of impugned orders are given below:

Date Case PS. Crl. Date of of Crime Case No. impugn- inci No. ed order dent 1 2 3 4 7.10.1997 177/97 Titavi, 1.12.1997 Muzaffar and nagar 6.6.1998 2.3.1998 69/98 Campier 14/98 ganj, 18.4.1998 Gorakh- pur. 20.7.1998 241/98 Salempur. 25.7.1998" Deoria. 30.6.1998 174/98 Pipiganj, 20.7.1998 Gorakhpur. 2.8.1998 177/98 Taryasu 20.8.1998 jan, Kushinagar. 2.6.1998 536/98 Kasiya, 3.8.1998 Kushinagar. 198/98 Taryasu 27.8.1998 jan. Kushinagar. 22.7.1998 120/98 Ahraula, 17.8.1998 Azamgarh 29.6.1998 226/98 Gauri 7.8.1998 Bazar. Deoria. 22.7.1998 178/98 Ahraula, 17.8.1998 Azamgarh 20.6.1998 226/98 Gauri 7.8.1998 Bazar 26/98 Bankata, 12.6.1998 Deoria.

In the aforesaid cases, the cattle were taken into custody by the concerned police. They were challenged u/s 3/5A/8, Prevention of Cow Slaughter Act and Section 11 of Cruelty to Animals Act. From a perusal of the above Chart, it appears that the incidents have taken place in the months of June, July, August, 1998 and October. 1997 and since then these cattle are under the custody of police. However, the aforesaid cattle have been given in supurdagi of gaushala or any other Society. A preliminary objection has been raised by Sri A.B. Saran, learned Counsel appearing on behalf of gaushala that the Proprietor of gaushala has no locus standi in the matter and supurdagi has been given by order of the Court, therefore, they cannot claim any right. It has also been submitted that earlier, against the order of release of cattle by this Court, SLP was filed which has been dismissed by Hon''ble Supreme Court.

Sri A.B. Saran as well as learned A.G.A. have not denied this fact that SLP has been dismissed by Hon''ble Supreme Court. However, adjournments were sought earlier by learned A.G.A. on the ground that similar controversy was pending before Hon''ble Supreme Court in SLP as mentioned in the order sheet dated 25.8.1998 of Criminal Revision No. 173 of 1998, Sudersan and Ors. v. State.

Even after the dismissal of the SLP by Hon''ble Supreme Court, Sri A.B. Saran and learned A.G.A. argued the case and submitted that it is the right of the Proprietor of gaushala that no cattle should be dealt with cruelty, specially when the ownership of the cattle is not proved and as such, the proprietor of gaushala has every right to keep the animals in gaushala.

Learned A.G.A. has placed reliance on the judgment and order passed by learned single Judge of this Court in Criminal Revision No. 1610 of 1998. Mustakim v. State, in which, it has been held that the order giving supurdagi of the seized animals does not suffer from any impropriety, irregularity or illegality and no interference is called for and order relating to the auction and confiscation of cattle before the conclusion of the prosecution shall remain in abeyance and the learned Magistrate shall expedite the trial of the case and the Investigating Officer was directed to conclude the investigation positively within 30 days from the date of receipt of certified copy of the order. This order was passed on 28.10.1994.

In the instant case, matter of supurdagi is not under challenge, except Criminal Revision No. 1519 of 1998, wherein the order of learned 3rd Additional Sessions Judge, Deoria, dated 12.6.1998 releasing the cattle on certain conditions has been challenged. Reliance has been placed on several case law, one of which has been reported in Nasu Sheikh v. State of Bihar 1972 ACC 130, which was an appeal against conviction under Essential Commodities Act, 1955 and the aforesaid case has no application in the matter in hand. Another case has been cited which is reported in Manager Pinjrapole Deudar v. Chakram Morqji Nat and Ors. JT 1998 16) SC 666 : 1999 (1) JIC 259 (SC), in which sheep and goats were being transported and in the way Gujarat Police seized them for alleged Prevention of Cruelty to Animals Act, 1960, Bombay Police Act and Rules 65 to 75 of the Gujarat Diseases of Animals Control Rules, 1963. The alleged offences were non-cognizance. The learned Judicial Magistrate, 1st Class, Dhanera, on their production before him, directed that the custody of animals be handed over to Pinjrapole. Dissatisfied with the order of learned Magistrate, the owners of animals filed criminal revision application before the learned Additional Sessions Judge, Banaskantha at Palnapur, who allowed the revision and directed that the custody of animals be given to the owners pending trial of the cases. The Pinjrapole carried the matter in revision before the High Court of Gujarat. The High Court declined to interfere in the order passed by the learned AdditionalSessions Judge, against which an appeal was filed before the Apex Court. The Apex Court has held that in the case where the owner is claiming custody of animals, Pinjrapole has no preferential right. It was further held 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.

At this stage, it is also relevant to note that there are so many relevant factors to be taken into consideration before making decision in the matter in question which read as under:

(i) the nature and gravity of the offence alleged against the owner:

(ii) whether, it is the first offence alleged or he has been found guilty of offence under the Act earlier:

(iii) 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 animal during the prosecution:

(iv) the condition in which the animal was found at the time of inspection and seizure:

(v) the possibility of the animal being again subjected to cruelty.

In the instant case, since it is the case of interim custody, it cannot be said that the alleged owners were found guilty of offence under the Act. However, it has to be seen whether earlier they had been found guilty of the offences or not? When the hearing in the instant cases was concluded, charge-sheet was not filed in any of the cases.

In view of the discussion made above, these criminal revisions except Criminal Revision No. 1519 of 1998 and writ petition are finally disposed of with the following directions to the learned Judicial Magistrates concerned as under:

The learned Judicial Magistrate concerned will see whether the alleged offence in question is the first offence of the owner of the cattle or he has been found guilty of the offences under the relevant Acts earlier.

The owner of the cattle/animals shall be directed to file an affidavit stating therein specifically whether the alleged offence is the first offence or not. The owner of the cattle will have to give undertaking that in case, the animals/cattle are released in his favour, the same will be kept properly and will not be subjected to cruelty during the custody.

In case, an affidavit containing the aforesaid statement is filed by the owner, the cattle/animals shall be released in his favour with the following conditions:

(i) Before releasing the animals the learned Court below shall get identification marks affixed on each of the animals through Station House Officer of concerned police station at the expenses of the owner and details of the same shall be kept on the record of the police station as well as of the Court.

(ii) In case of death of any animal the owner/applicant shall intimate the police station concerned as well as the Court and shall be produced before the Station House Officer of concerned police station or the Court if required and only then the animals shall be buried or disposed of.

(iii) The animals/cattle shall be produced as and when required by the Court.

In case of any default committed by the owner/applicant, it will be open for the concerned police station or the learned Court below to seize the animals and keep the same in the Court custody and take action in accordance with law. As regards the expenses incurred in the feeding etc. of the cattle/animals, it is directed that Rs. 15 per animal per day except those which give milk, shall be charged from the owner/revisionist.

It is further directed that if the investigation has not been concluded as yet, the I.O. shall conclude the same and submit his report before the learned Magistrate concerned within one month from the date of presentation of a certified copy of this order before the learned Magistrate and in this respect, the learned Magistrate concerned shall communicate this order to the Investigating Officer. In case, charge-sheet has already been filed or the charge-sheet is filed within the time specified above, the learned Magistrate concerned shall conclude the trial expeditiously, preferably within a period of two months from the date of filing of the charge-sheet and on the date of pronouncement of judgment, it will be open for him to direct the owner of the cattle under whose custody the cattle/animals are released to produce the cattle/animals before the Court and then the learned Court below may deal the matter in accordance with law.

In Criminal Revision No. 1519 of 1998, Gorakhpur Society v. State of U.P. and Anr. is hereby dismissed and the order dated 12.6.1998 passed by learned 3rd Additional Sessions Judge, Deoria in Criminal Revision No. 69 of 1998 is hereby affirmed.

Let a photocopy of this order be placed on the record of each Criminal Revision mentioned above.