Sri Anowaruddin Choudhury vs State of Assam

T.N. Singh, J.—The forensic fight in this case is for interim custody of an elephant. O.P. No. 2 bad lodged an ejahar at Hailakandi Police Station on 3.1.84 that an elephant named Jaymala, which belonged to him, had been forcibly removed by some persons by threatening the mahaut while it was working at Mathijurighat. The police registered a case u/s 384 IPC against four persons and in the course of investigation seized the elephant in question on 5.1.84 from the possession of the Petitioner. On the application of the Petitioner praying for its custody learned Magistrate passed an order on the body of the petition directing the Officer-in-charge of Hailakandi Police Station to give the elephant in his "Zimma". Next day, the informant (O.P. No. 2) filed a petition in the Court of the learned SDJM, Hailakandi, submitting that the exparte order passed on 5.1.84, by the Munsiff-Magistrate without hearing him, was liable to be vacated and that the said elephant should be given in his Custody. The judicial investigation which followed upon this application and the order passed thereon, confirmed in revision by learned Sessions Judge, is the bone of contention in the petition filed in this Court.

On both sides threshold objections have been raised in this case and 1 consider it appropriate to deal first therewith before proceeding to discuss on merit the submissions made by learned Counsel of the parties. Mr. P.C. Kataki, the learned Counsel for the Petitioner, challenges the validity of the judicial proceeding which ensued on the petition filed by O.P. No. 2. His submission is that the learned Sub-Divisional Judicial Magistrate had no jurisdiction to vacate the order passed on 5.1.84 and pass the fresh order on 17.1.84 by which he gave interim custody of the elephant to O.P. No. 2 subject, albeit, to his furnishing a bond in the amount of Rs. 50,000. On behalf of O.P. No. 2, Senior Counsel Mr. J.P. Bhattacharjee, as also Mr. C.R. De learned P.P., Assam, submits that the present petition in this Court is not maintainable. This submission is based on the premise that the impugned order passed on 17.1.84 being a non-appealable one and having been confirmed in revision this Court shall not interfere therewith in view of the provisions of Section 399(3) Code of Criminal Procedure.

It appears to me that the objection of Mr. Kataki does not merit serious consideration. Indeed, it is manifest that in this case the ex-parte order passed on 5.1.84 was not an order contemplated u/s 451 Code of Criminal Procedure and as such the question of same being vacated or reviewed docs not arise because what Section 451 contemplates, is that the "Court" in the judicial exercise of its power can pass an order for "proper custody" of any property, pending conclusion of any enquiry or trial, regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence. The ex parte order did not manifest. on its face that the learned Munsiff-Magistrate acting as a "Court" u/s 451, had applied its mind to the question of "proper custody" which, In my opinion, postulated an enquiry to determine who was the "proper person" to be entrusted with the custody of the elephant. The order was passed on the body of the application made by the Petitioner. The FIR and other records of the case were not before the learned Magistrate otherwise he could have issued notice to O.P. No. 2 and heard him to act judicially like a "Court". Indeed, the proceeding u/s 451 commenced when, on 6.1.84, O.P. No. 2 filed an application before the "Court" (SDJM) claiming custody of the elephant because it gave rise then and then only to a lis between the Petitioner and O.P. No. 2. The "Court" is obligated u/s 451 to determine a "proper person" acceptable to the Court as the custodian of the property pending conclusion of the enquiry or trial because the order of interim "custody" is to be subject to the final order to be passed u/s 452 for "disposal" of the property on conclusion of the trial. Therefore, in deciding the lis as respects "proper custody" of the elephant, in the instant case, learned SDJM acted within his jurisdiction.

In support of their preliminary objection counsel for the Opposite Parties relied on a decision reported in Jagir Singh Vs. Ranbir Singh and Another, Jagir Singh v. Ranbir Singh wherein the Court observed that Section 397(3) was meant to prevent multiple exercise of the revisional power and to secure early finality to an order. The Court also held that in such a case the High Court could not also invoke its power under Article 227 of the Constitution because the discretionary power of superintendence thereunder was not meant to circumvent statutory law. To counter the weight of this authority from Petitioner''s side reliance was placed on Madhu Limaye Vs. The State of Maharashtra, to submit that in the instant case the application was made not only under Article 227 of the Constitution but also u/s 482 Code of Criminal Procedure and that ignoring the label this Court can grant relief to the Petitioner u/s 482 Code of Criminal Procedure Indeed, the Court held in the decision cited that power u/s 482 was exercisable despite the provisions of Section 397 (2) but, submits learned Counsel for the Petitioner, on the same reasoning the expression "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court" of Section 482 operates also against the bar of Section 399(3). To me the legal position appears well settled by now. Whether or not the Court will exercise its inherent power u/s 482 would depend on the facts and circumstances of the case and Sections 399(3) or 397(2) does not debar a Petitioner to claim relief in an appropriate case from the High Court and, further, the label on the petition is not to be considered decisive of the matter. (See Raj Kapoor and Others Vs. State and Others, also Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others,

Having dealt with the two threshold objections of both sides I may now examine the rival contentions on the main issue. In doing so, however, let me first refer to the impugned orders passed in this case. Learned Sub-Divisional judicial Magistrate before passing the impugned order called upon both the parties to produce documents and other materials in support of their respective claims and also called from the police the case diary. The Petitioner based his claim on his right of owner-ship of the elephant and produced one "transit pass" which was in the name of one Abdul Razak. Learned Magistrate found that the said transit pass was received by one Aziruddin and consigned an endorsement that the said Abdul Razak had sold the elephant to him. He disbelieved that statement of Abdul Razak that he had sold the elephant to his nephew Anowaruddin, the Petitioner in this Court, at Rs. 19,001, as he found that no value was mentioned in the transit pass itself. He also rejected Petitioner''s contention that the "certificate of registration" dated 21.9.79 in the name of Abdul Razak supported the Petitioner''s case as farmer''s son and also his ''phandi'' did not support him. He relied on the statement of witnesses made before the police that the accused named in the ejahar, some of whom were brothers of the Petitioner, had "snatched away" the elephant when it was engaged in the work of the Nena Mia at Matiju- right. He also relied on the fact that informant Tera Mia (O.P. No. 2) hold a "licence" from the Nitai Nagar Gaon Panchayat in respect of the elephant. He accepted the informant''s case on a perusal of the materials found in the case diary, including the statement of witnesses, that the informant got the seized elephant as his share in amicable partition of family properties with Abdul Razak.

Before the learned Sessions Judge the Petitioner impugned the findings and order of the learned Magistrate mainly on two grounds. It was contended before him that the elephant having been recovered from the possession of the Petitioner custody thereof had to be given to him because in such cases the factum of possession had paramount importance. Nextly, it was contended that the question of "registration" had also an important bearing in such matters. Learned Sessions Judge found that the "certificate of registration" dated 21.9.79 did not appertain to the seized elephant because the name Jaymala, which was the name of the seized elephant, did not appear therein and because the said "Registration Certificate." referred to ''Khoonkies'' named Rongmala and Lakshmi with height respectively 7ft 10" and 7ft 6 " while the height of the seized elephant as per ejahar was 7ft 2". He also found that the "transit pass" dated 12.9.80 did not show the name of the elephant though it contained an endorsement that on 14.9.80 the elephant was sold "on receipt of full payment". This was signed by one Abdul Razak who also figured in the "certificate of registration". However, he did not accept the said endorsement as a "genuine sale certificate" because the vendor and vendee gave different figures as the consideration while no amount was mentioned in the endorsement which did not also bear any revenue stamp. On the factum of possession learned Sessions Judge relied on the statement of Mahaut that he was the Mahaut of the elephant Jaymala since her infancy. The Mahaut stated before the police that Jaymala was with the father of the informant and that he had trained her. He further stated that on the date of occurrence, namely 3.1.84, he had brought Jaymala to Mathijurighat for pulling logs of Nena Mia from Katakhal river. He had come under the direction of informant Tera Miah and that the accused had forcibly removed from there the elephant on that date.

Learned Counsel for the Petitioner has assailed before me the findings and the conclusion of the learned Sessions Judge on the ground that the Court below misread the "transit pass" as well as the "certificate of registration". Mr. Kataki contends that the transit pass was "document of title" and ought to have been construed as such. He further contends that the certificate of registration was also misconstrued inasmuch at it was in respect of "koonkies," the female elephants who ate to be licenced to catch wild elephants in any Mahal in accordance with the Elephant Hunting Rules made u/s 6 of the Elephant Preservation Act, 1879. He draw my attention in this connection to Page 103 of Assam Forest Manual Vol. 1 wherein these rules are extracted. He also drew my attention to Annexures I and II of the petition. From the first annexure it appears that Abdul Razak was granted on 7.2.80 two more seats with capture limit of "two Nos. only" in Mela Sikar Mahal No. III of 1979/80 while from the second annexure (certificate of registration) it will appear that Abdul Razak Was registered on 21.9.79 as the owner of khoonki elephants, Rongmala and Lakshmi, for the operation of Mela Sikar for 1979-80. Mr. Kamki''s contention is that in the course of the said hunting operation the seized elephant Jaymala was caught with the help of the said Koonkies and she was allowed to be taken out of the Mahal on 12.9.80 after payment the royality due therefor. Indeed, from Annexure IV of the petition it appears that the transit pass in question was issued to Abdul Razak as Mahaldar of Mela Sikar Mahal No. III in respect of a female elephant and the date of issue as well as expiry of the transit pass was 12.9.80. According to Mr. Kataki though Rule 7 of the said Rules prescribed that the period of hunting operation was limited to the period between first of October to 15th, of March it did not mandate that any elephant caught during the hunting season must be taken out during the prescribed period. Learned Counsel submits that after an elephant is caught and before it is taken out it has to be named and trained. In this connection he has drawn to ray attention to Appendix XXIX appearing at page 182 of the said Manual. The form of licence for catching wild elephant by Mela or Gajali Shikar is prescribed therein. Clauses (6), (11) and (15) of the said form are referred to by learned Counsel. Relying particularly on Clause (15) Mr. Kataki submits that transit pass ought be constituted do a document of title because it is (sic)ated thereunder that "all captured elephants remain Crown (State) property until a transit pass is obtained for them". It is true that a Mahaldar under Clause (15) of the licence, is allowed to remove from the "Depot" the elephant caught by him only after they are sufficiently trained. Indeed, it is also postulated thereunder that a transit pass must be obtained therefore from the appropriate authority on production of evidence of payment of royalty due for such elephant. Mr. Kataki contends that particulars of the elephant shown in the transit pass (vide Annexure IV) tallied with those given in ejahar (Annexure II) and the fast that the transit pass did not show the name of the elephant was immaterial because the elephant is not required to be named When it is undergoing training. It is not necessary according to him, to show the name of the elephant in the transit pass. Therefore, learned Sessions Judge, he submits, erroneously concluded that the Petitioner failed to establish his title to the seized elephant Jaymala merely because its name did not appear in the transit pass and in the certificate of registration.

Learned Counsel for O.P. No. 2. Mr. J.P. Bhattacharjee, on the other hand, submits that a "transit pass" cannot be considered as conclusive of title of any person to any elephant. He has drawn my attention to Section 3(4)(b)(iii) of the Assam Forest Regulation to show that "wild animals" when found in or brought from forest are to be regarded as "forest produce" and that for taking out of forest any forest produce a transit pass is necessary. In this connection he has referred to Section 40 of the Forest Regulation and Rule 2(a)(iii) of the Transit Rules framed thereunder. Appendix XIII, which appears at page 151 of the Forest Manual and prescribed the form of "Transit pass" is also referred to. Learned Counsel contends that merely on the basis of the "transit pass", which does not show on its face that it is granted to a person in recognition of title of such person, title to the seized elephant cannot be said to have been conclusively established. Indeed, I find from the form that a "transit pass" is granted to a person merely to take out of forest any kind of forest produce on payment of the dues therefore, if any, as the form prescribes the place from which such produce has to be transported, its destination as well as the route of its transport besides indicating the dates of issue and expiry and also the kind of forest produce; its ownership is, however, not indicated. The relevance and rationale of these entries are provided by Section 40 and Rule 2(a)(iii), but more importantly by Rule 8. Control of all forest produce in transit is vested in State Govt. vide Section 40 which empowers it to frame rules in that behalf. Thus Rule 2(a) framed thereunder provides that no forest produce shall be removed unless covered by a iransit pass issued in token of full payment of dues of the Govt. in respect thereof. Rule 8 empowers any forest officer to stop and inspect at any place "all forest produce in transit".

On a pursual of the relevant rules and appendices of the Forest Manual placed before roe I find it difficult to accept Mr. Kataki''s contention that whenever a transit pass in respect of an elephant is produced it must be held to represent a document of title in respect of the said animal. According to me, cause (15) of the licence (Appendix XXIX) merely fulfils the requirement of Rule 2(a) as manifested in the provision there that without payment of royalty a transit pass cannot be obtained and without transit pass an elephant caught during a hurting operation cannot be taken out. Indeed, the entry as respect "the date of expiry" indicates that a transit pass not only loses its utility but also validity on the date so specified its purpose is to ensure merely "transit" or removal through and from the forest of the named forest produce to the armed destination within the period allowed. Indeed the trans route is also therefore indicated in the transit pass. Rules 2(b) nd 8 and even Clause (15) of the licence do not contemplate that a transit pass in respect of an elephant must be issue only in the name of the person who has paid the royalty here for. Although these rules and also Clause (15) do manest the legal position that the person who had paid the royay for the forest produce in question would acquire title there, in the instant case, in support of his title the Petitioner has merely produced a transit pass which, aliunde, does not establish the identity of the concerned forest produce, namely, the elephant and payment of royalty therefore.

The transit pass in question only showed that it was issue to Abdul Razak; it did not conclusively establish that the elephant transited thereby was caught by him in the course of anting operation in the Mela Shikar No. III of 1979/80 or the he had paid royalty therefore in terms of Clause (14) of the licence, namely within 14 days of arrival of the elephant ate "Depot". It is to be noted that Clause (6) requires the licence to bring to the "Depot", as soon as possible, any elephant cared by him. In the instant case the Petitioner did not place armaterial before the Court to show when the elephant was cared and when royalty therefore was paid. On the other hi, from Annexures I and IV it is difficult to predicate if the elephant which could have been captured only after 7.2.80 a before 15.3.80 was the elephant which was removed on 1.80 on the strength of the transit pass in question.

Thus, in may opinion, both Courts rightly directed their (sic)ntion mainly to the factum of possession of the animal. (sic)rned Sessions Judge, for this purpose, relied on the statement of Mahaut and learned Magistrate relied particularly on the "licence" produced by the informant which he had obtained from the Gaon Panchayat. Indeed, learned Magistrate also accepted the informant''s case, on materials disclosed by the case diary, that he got the seized elephant as his share in the amicable partition of family property with Abdul Razak though it had been purchased long ago by his grand father. Indeed, the ejahar (Annexure III) shows that the elephant was 24 years old while the transit pass, as per Annexure IV does not indicate the age of the animal transited thereby. Mr. J.P. Bhattacharjee has drawn my attention to Rules 88(4)(e) and 93(b) of the Assam Panchayati Raj (Financial) Rules, 1974, framed u/s 64(d) of Assam Panchayati Raj Act, 1974, which authorises a GaonPanchayat to issue licences and levy licence fee for owning and possessing an elephant. There was, therefore, according to learned Counsel, cogent and reliable material available to the Courts below to hold that the seized elephant was, prior to the date of occurrence, in possession of O.P. No. 2 (informant). Mr. Kataki impeached this evidence as the "licence" of O.P. No. 2 does not bear on it the name of the seized elephant, However, according to me, this objection is merit less because Rule 10 of the aforesaid rules, which prescribe the form of the licence, does not envisage such an entry, On the other band, what is contemplated under Sub-rule (9) of Rule 93 is issue of a "token" which is to be displayed on the elephant in a conspicuous manner Thus, the elephant having been seized from the custody of the Petitioner by the police and ho not having produced the token legal presumption could be drawn against him that the token would have supported the ownership and possession of the informant had the same been produced. According to me, the token was, and could be accepted as, cogent and clinching evidence of possession of the elephant in question.

For the foregoing reasons, I hold that the concurrent conclusion reached by the two Courts below does not suffer an jurisdictional infirmity. Learned Magistrate, in the judicial exercise of his discretion u/s 451, rightly determined (sic) proper custodian of the elephant on the materials available him. He rightly attached greater importance to "licence" whit the informant produced in support of his case. Similarly learned Sessions Judge rightly refused to accept the endorsement on the "transit pass" produced by the Petitioner as a genuine "sale Certificate" which indeed is also the finding reached by the learned Magistrate. Both Courts also the rightly held that the consideration money of the sale price not being mentioned in the endorsement which did not also bear any revenue stamp, required by law, the evidentiary value of the transit pass was seriously indented. Merely because the "certificate of registration" was misread by Sessions Judge, the conclusion reached by him was not vitiated according to me as it had no material bearing, for reasons alluded, on the point at issue.

On balancing competing claims the Court would have to take an overall view of the matter because question of right to possess would imply determination of ownership which arises only under Sections 452 and 457 and not u/s 451. The Court is obligated under Sections 452 and 457 to deliver possession on of the property to the person entitled to possession thereto while in a case u/s 451 the Court considers the entire facts and circumstances of the case and particularly the nature of the property only to determine the person to whom could be entrusted the interim custody thereof. Thus, when the property is an animal its habits, behaviour, well being must be taken into consideration. Indeed, not the legal owner but the person, who established that it was under his care and possession for quite a long time and there was nothing to show that he was not kindly disposed towards it, must be held in, such cases to Cruelty best entitled to its interim custody. In doing so the Court will be fulfilling the mandate of Section 3 of Prevention of Cruelty to Animals Act, 1960. Every person having "the care of charge" of any animal is required thereunder to take all (sic)sonable measures "to ensure the well-being" of such animal. In this connection the definition of the term "owner" contained (sic) Section 2(f) of the Act and the persons who are liable to (sic) prosecuted for treating animals cruelly according to Section (sic) of the Act deserve notice. The term "owner" embrases within (sic) fold any person who for the time being is in possession or (sic) of the animal with or without the consent of the owner. (sic) the instant case the statement of the Mahaut and the (sic), therefore, clinch the issue in favour of O.P. No. 2.

Thus, having considered the matter from all aspects, I no hesitation to hold that no case1 for my interference with the impugned orders is made out. This application is accordingly rejected and the rule is discharged.

Because I was away from the principal scat holding Courts at Imphal and Agartala and also because of the recent Bihu holidays judgment in this case could not be delivered earlier. I consider it appropriate to record this fact before parting with the records.