Pinjrapore Deudar & Anr Vs. Chakram Moraji Nat & Ors  INSC 435 (31 August 1998)
Mukherjee, Syed Shah Mohammed Quadri Quadri, J.
31ST DAY OF AUGUST, 1998 Present:
Mr. Justice M.K.Mukherjee Hon'ble Mr. Justice S.S.Mohammed Quadri Dr.A.M.Singhvi,
Sr. Adv., S.C.Patel, G.R.Popat, Advs. with him for the appellants. A.K.Ganguli,
Sr. Adv., J.L.Chauhan, Shakil Ahmed Syed, Ms.H.Wahi, Ms.Neithono Rhetso, Ms.Anu
Sawheny, Advs. with him for the respondents.
following Judgment of the Court was delivered:
three appeals are filed by the Manager, Pinjrapole against the common judgment
of the High Court of Gujarat dated April 8, 1997. The short question that arises for
consideration in these appeals is: whether the order of the High Court
declining to grant interim custody of the animals to the appellants is contrary
to Section 35 of the Prevention of Cruelty to Animals Act, 1960.
facts giving rise to this question may be noticed here. While the sheep and
goats [hereinafter referred to as "animals"] were being transported,
the Gujarat police seized them for the alleged
violation of provisions of the Prevention of Cruelty to Animals Act. 1960 for
short. The Act), Bombay Police Act and Rules 65 to 75 of the Gujarat Diseases
of Animals control Rules. 1963. It is a common ground that the offences alleged
are non-cognizable. The learned Judicial Magistrate, 1st Class, Dhanera, on
their production before him, directed that the custody of the animals be handed
over to Pinjrapole. Dissatisfied with the order to the 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 cased. The Pinjrapole carried the matter in Revision before the High
Court of Gujarat. That Revision and two other cases were disposed of by the
High Court by common order dated April 8, 1997, declining to interfere in the order passed by the learned
Additional Sessions Judge.
correctness of that common order is assailed in these appeals.
the learned senior counsel appearing for the appellants, has argued that
Section 35 of the Act, enjoins that in the event the Magistrate not sending
animals to an infirmary, he has to send them to Pinjrapole pending the trial of
offences against the owner under the Act; that the order of the High Court
confirming restoration of custody of the animals to the owners in preference to
the appellant-Pinjrapole, which is a charitable institution and is only
interested in the welfare of the animals, is violative of Section 35, illegal
the learned senior counsel appearing for the respondents, has submitted that
the High Court has properly constructed section 35 of the Act and after taking
note of various instances of destruction of the animals and the standard of
care taken in the Pinjrapoles, and that having regard to the welfare of animals
as well as the interest of the owners, the High Court has rightly declined to
interfere with the order of the learned Sessions Judge, so these appeals are
liable to be dismissed.
judging the merits of these contentions, it will be apt to notice the scheme of
the Act in the light of the relevant provisions thereof. section 4 of the act
postulates establishment of Animal welfare Board by the Central Government for
the promotion of animal welfare generally and for the purpose of protecting
animals from being subjected to unnecessary pain or suffering, in particular.
The Board is a body corporate having perpetual succession and a common seal
with power to acquire and dispose of property, subject to the provisions of the
Act. Section 9 of the Act enumerates functions of the Board; clause (g) thereof
contains the objective which reads: to encourage, by the grant of financial
assistance or otherwise, the formation or establishment of pinjrapoles, rescue
homes, animal shelters, sanctuaries and the like where animals and birds may
find a shelter when they have become old and useless or when they need
protection. section 11 enlists offences against the animals and prescribes
penalty therefor specific offence to practising 'phooka and doom day. Under
Section 29 magistrate has power to deprive a person of the ownership or custody
of an animal on his conviction of offences under the Act subject to certain
conditions. sections 32 to 34 deal with the power of search and seizure,
issuing of search warrant and general power of seizure for examination. The
owner is required to accompany the seized animals to the place of inspection.
it may be useful to quote Section 35 of the Act under which the appellant-pinjrapole
claims interim custody of the animals:
Treatment and care of animals –
The State Government may, by general or special order, appoint infirmaries for
the treatment and care of animals in respect of which offences against this act
have been committed, and may authorise the detention therein of any animal
pending its production before a magistrate.
The magistrate before whom a prosecution for an offence against this act has
been instituted may direct that the animals concerned shall be treated and
cared for in an infirmary, until it is fit to perform its usual work or is
otherwise fit for discharge, or that it shall be sent to a pinjrapole, or if
the veterinary officer in charge of the area in which the animal is found or
such other veterinary officer as may be authorised in this behalf by rules made
under this Act certifies that it is incurable or cannot be removed without
cruelty, that it shall be destroyed.
animal sent for care and treatment to an infirmary shall not, unless the
magistrate directs that it shall be sent to a pinjrapole or that it shall be
destroyed, be released from such place except upon a certificate of its
fitness, for discharge issued by the veterinary officer in charge of the area
in which the infirmary is situated or such other veterinary officer as may be authorised
in this behalf by rules made under this Act.
The cost of transporting the animal to an infirmary or pinjrapole, and of its
maintenance and treatment in an infirmary, shall be payable by the owner of the
animal in accordance with a scale of rates to be prescribed by the district
magistrate, or, in presidency-towns, by the commissioner of police.
that when the magistrate so orders on account of the poverty of the owner of
the animal, no charge shall be payable for the treatment of the animal.
amount payable by an owner of an animal under sub-section (4) may be recovered
in the same manner as an arrear of land revenue.
If the owner refuses or neglects to remove the animal within such time as a
magistrate may specify, the magistrate may direct that the animal be sold and
that the proceeds of the sale be applied to the payment of such cost.
surplus, if any, of the proceeds of such sale shall, on application made by the
owner within two months from the date of the sale, be paid to him." From a
plain reading of the provisions, above noted, it its evident that sub-section
(1) of Section 35 enables the State Government to appoint infirmaries for the
treatment and care of animals in respect of which any of the offences under the
Act has been committed and to authorise the detention of such animals pending
their production before a magistrate. Under sub-section (2), the Magistrate may
the animal shall be treated and cared for in an infirmary till such time it is
fit to perform its usual work or is otherwise fit for discharge;
animal shall be sent to a Pinjrapole; or
animals shall be destroyed if it is certified by a veterinary officer, authorised
under the Rules, to be incurable or if it is found that it cannot be removed
without cruelty. Mandate of sub-section (3) is that no animal shall be released
from an infirmary unless it is directed to be sent to Pinjrapole or be
destroyed or certified by concerned veterinary officer to be fit for discharge.
Sub-section (4) imposes liability for payment of the cost of transporting the
animal to an infirmary or Pinjrapole and its maintenance and treatment in an
infirmary, in accordance with the prescribed rates, which, however, can be
dispensed with if the Magistrate is satisfied that on account of the poverty of
the owner, he is unable to bear the same, otherwise it may be recovered as
arrears of land revenue, as envisaged in sub-section (5).
(6) says that if the owner refuses or neglects to remove the animal within the
time specified by the Magistrate then he can order the sale of the animal and
appropriation of the sale proceeds for the cost thereof and in the event of
there being surplus proceeds of such sale, payment of the same to the owner on
his application within two moths of the sale. This is postulated by sub-section
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.
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.
have noted above the options available to the Magistrate under Section 35(2).
That sub-section vests in the Magistrate the discretion to give interim custody
of the animal to Pinjrapole. The material part of sub-section (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 count 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;
it is the first offence alleged or he has been found guilty of offences under
the Act earlier;
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;
condition in which the animal was found at the time of inspection and seizure;
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,
the Pinjrapole is functioning as an independent organization or under the
scheme of the Board and is answerable to the Board; and
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.
represents that Pinjrapole prepared to keep animals in custody without charging
any money for their maintenance. In our view, that cannot be a correct criteria
for giving custody of the animals to Pinjrapole particularly when the Court has
to decide the competing claims of the owner and the Pinjrapole for their
the aforementioned reasons, we find no merit in these appeals, they are
accordingly dismissed but having regard to the facts and circumstances of the
case without costs.