Bharat
Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors. [2009] INSC 1693 (4
November 2009)
Judgment
CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2020 OF 2009 (Arising out of S.L.P.
(Criminal) No. 198 of 2009) Bharat Amratlal Kothari and another ...
Appellants
Versus Dosukhan Samadkhan Sindhi & others ...Respondents
J.M.
PANCHAL, J.
1.
Leave granted.
2.
This appeal, by special leave, is directed against judgment dated
December 30, 2008, rendered by the learned Single Judge of High Court of
Gujarat at Ahmedabad in Special Criminal Application No. 1387 of 2008 by which,
while dealing with two prayers made by the respondent Nos. 1 to 6 2 herein,
namely, (a) to declare that the order dated July 5, 2008, passed by the learned
Additional Chief Judicial Magistrate, Deesa, refusing to hand over custody of
the live stock to them is illegal and (b) to declare that they are entitled to
get custody of the entire live stock, which is in illegal custody of Bharat
Kothari, i.e., appellant No. 1 herein and confined in the Panjarapole at Kanth,
near Deesa, the learned Single Judge has :- i) held that each of the respondent
Nos. 1 to 6 are guilty under Section 11(1)(d) of the Prevention of Cruelty to
Animals Act, 1960 and punished each of them with fine of Rs.50/-;
ii)
quashed the FIR No. II-C.R.No. 3131 of 2008, registered with Deesa City Police
Station for the alleged commission of offences punishable under Section 279 of
Indian Penal Code, Section 11(1)(d) of the Prevention of Cruelty to Animals
Act, 1960 and Sections 5, 6 and 8 of Bombay Animal 3 Preservation Act, 1954, at
the instance of the appellant No. 1 as well as the proceedings pursuant
thereto, including the orders for interim custody of the animals and the
revision applications preferred therefrom;
iii)
directed the appellant No. 1 to pay, by way of compensation and cost, to each
of the respondent Nos. 1 to 6 a sum of Rs.75,000/-, without prejudice to their
rights and contentions in the criminal proceedings initiated by way of Criminal
Inquiry Case No. 237 of 2008 and pending before the learned Chief Judicial
Magistrate, Palanpur, as well as to pay, on behalf of respondent Nos. 1 to 6
the cost of maintenance and treatment of the animals in question to the
respondent No. 8 herein, i.e., Panjarapole Patan in accordance with the
provisions of sub-Section (4) of Section 35 of Prevention of Cruelty to Animals
Act, 1960, within a period of one month, i.e., latest by January 30, 2009;
iv)
directed respondent No. 8, which is entrusted care and custody of the animals
under interim order, to hand over the surviving animals to the respondent Nos.
1 to 6 in such proportion as the original number of seized animals bears to the
number of surviving animals;
v)
directed the State of Gujarat, i.e., respondent No. 7 herein, to take
appropriate departmental action for illegal or unauthorized actions, if any, on
the part of any police officer and if, upon inquiry it prima facie appears that
any police officer has participated in a cognizable offence, to initiate
appropriate criminal proceedings against such officer;
vi)
directed the Registrar of the High Court to serve copy of the judgment upon the
appellant No. 2, i.e., Animal Welfare Board of India, Ministry of Environment
and Forests, Government of India, 13/1, Third Seaward Road, Valmiki Nagar,
Thiruvamiyr, Chennai; and 5 vii) directed (a) the respondent Nos. 1 to 6 to take
over the custody and care of surviving animals within two weeks and (b) that
the Police Officer in-charge of the Police Station at Patan to supervise the
delivery of the animals to the respondents by the appellant or respondent No. 8
in such manner that the animals are not subjected to further cruelty in their
transportation within the area of his jurisdiction. The respondent Nos. 1 to 6
are further directed not to commit any offence under the Prevention of Cruelty
to Animals Act, 1960 in respect of the surviving animals and submit an
undertaking to that effect to the police officer in- charge of the Police
Station at Patan.
3.
The facts emerging from the record of the case are as under: - The
appellant No. 1 is an Animal Right Activist. He is also Secretary of
Rajpur-Deesa Panjarapole, which is a public trust and involved in preservation
of old, infirm and stray cattle. One of the 6 objects of the trust is to
prevent illegal and unauthorized transportation and slaughtering of animals. On
June 16, 2008 he with others was present at Deesa. He received a message that
certain trucks with goats and animals had left from Badmer to go to Ahmedabad
via Deesa and Palanpur. In view of this information he and others, i.e.,
Jivdaya Dharmendra Kokani, Vijaybhai Chauhan, Bherabhai Mali and Shivrambhai
Mali kept a watch at Jalaram Cross Road since 11.00 P.M. in the night. At about
2.00 A.M. on 17.6.2008 they noticed that a line of trucks was coming from
Gayatri Temple. They waived their hands and search light to stop the trucks but
the drivers of the trucks did not stop the vehicles and were found driving
trucks speedily towards Palanpur. Therefore, the appellant No. 1 and others sat
in an interceptor vehicle bearing registration number GJ-8-A-1294 and followed
the trucks. The appellant No. 1 had his mobile phone with him and, therefore,
informed the Police Control, Palanpur that trucks loaded with goats and sheep
were coming speedily towards Palanpur, whereas he and 7 others were following
those trucks and, therefore, necessary action should be taken to halt the
trucks at Aroma Circle Check Post. When the trucks reached near Aroma Circle,
the drivers spotted the police.
Therefore,
they stopped their vehicles and, after leaving the trucks, ran away. On search
being made, it was found that in all there were eight trucks and in each truck,
goats and sheep were being conveyed in a congested manner. It was also noticed
that there was no facility of fodder, water, etc. in any of the trucks and that
the drivers had meted out cruelty to the animals.
On making
the inquiry as to who were driving the trucks, it was found that (1)Ramjanbhai
Ibrahimbhai Sindhi, resident of Nilana, Taluka Shiv, District Badmer, (2)
Rojakhan Dosukhan Sindhi, resident of Lilasa, Taluka Shiv, District Badmer and
(3) Jamalkhan Dinakhan Sindhi, resident of Nimlatada, Taluka Shiv, District
Badmer, Rajasthan, were drivers of some of the trucks. They were arrested and
on being questioned, it was informed by Ramjanbhai Ibrahimbhai Sindhi that the
others were cleaners of the trucks. It was also 8 learnt from Ramjanbhai
Ibrahimbhai Sindhi that the goats and sheep loaded in the trucks were brought
from Badmer to be taken to Ranip Slaughter House, Ahmedabad. He was called upon
to produce permit for loading the goats and sheep, but he could not produce the
same. It was further learnt that the goats and sheep were filled in the trucks
in an unauthorized and cruel manner. Therefore, the goats and sheep were taken
to Deesa from Palanpur in the trucks and other vehicles.
One of
such vehicle, i.e., mini truck No. GJ-9-Y-5143, conveying the goats and sheep
from Palanpur to Deesa, had overturned on the side of the road as a result of
which some animals had died. The truck, which had overturned, was left at the
place where it had overturned and other trucks were taken with goats and sheep
to Kanth Panjarapole, Deesa. The trucks, which were being driven from Badmer,
were also taken to the said Panjarapole. It was further found that in all there
were 1974 animals out of which 99 animals had died and that 1875 goats and
sheep worth Rs.400/- each were kept in the Panjarapole, Deesa. of which the 9
appellant No. 1 is the Secretary. Under the circumstances the appellant No. 1
filed complaint against Ramjanbhai Ibrahimbhai Sindhi and others for alleged
commission of offences punishable under Section 279 of Indian Penal Code,
Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 (for short
the "Act") and Sections 5, 6 and 8 of Bombay Animal Preservation Act,
1954.
4.
The record further shows that another FIR was lodged on June 17,
2008 at 1430 hours with Palanpur Police Station by Govind R. Rabari, mentioning
himself as an accused for the commission of the offence punishable under
Section 279 of Indian Penal Code and stating that while he was driving mini
truck carrying the cattle from Palanpur to Deesa at the instance of the
appellant No. 1, he had lost control of the vehicle due to overweight of cattle
as a result of which the truck had turned on its side killing six cattle and
causing damage to the said vehicle.
5.
The case of the respondent Nos. 1 to 6 is that the appellant No. 1
and his associates are headstrong persons who had grabbed the consignment of
sheep and goats illegally by stopping the trucks near Palanpur and forcing the
trucks to be taken to Deesa. According to the respondent Nos. 1 to 6, not a
single sheep or goat had died in any of the trucks, but large number of them
were shown to have died in the FIR with a view of appropriating them. The
respondent Nos. 1 to 6 have asserted that the appellant No. 1 had planned the
entire operation of looting the trucks with the active help and connivance of
local police at Deesa. Therefore, one of the respondent Nos. 1 to 6 filed
complaint against the appellant No. 1 with Superintendent of Police at Palanpur
on June 17, 2008 itself about the forcible and violent taking over of the
trucks with cattle and Rs.500/- in cash. In the complaint filed with
Superintendent of Police, Palanpur, nothing was done. Therefore, a criminal
complaint was filed 1 in the Court of learned Chief Judicial Magistrate,
Palanpur, which is registered as Criminal Inquiry No. 237 of 2008 on June 18,
2008 for the alleged commission of offences punishable under Sections 395, 427,
506(2) read with Section 34 of Indian Penal Code alleging that the persons
accused therein, including the appellant No. 1, had, with the help of police,
taken over the trucks, beaten the drivers, looted cash of Rs.1,11,000/- and
taken away sheep and goats worth Rs.45,48,000/-. The learned Chief Judicial
Magistrate made an order below the complaint directing the Deputy
Superintendent of Police, Palanpur, to make a report within seven days after
conducting investigation into the earlier complaint filed before him on June
17, 2008.
6.
The respondent Nos. 1 to 6, claiming to be the owners of goats and
sheep, filed an application under Sections 451 and 457 of the Code of Criminal
Procedure, 1973 for custody of the cattle. The learned Additional Chief
Judicial 1 Magistrate, Deesa, by order dated July 5, 2008, rejected the said
application and further directed the Investigating Officer Mr. Lakhubhai
Amubhai to take possession of all goats and sheep from Rajpur-Deesa Panjarapole
and to hand over the same within two days to the Panjarapole of the nearest
district, except the District of Banaskantha at Government cost and thereafter
to submit a report to the Court.
7.
Feeling aggrieved by the above mentioned order, the respondent
Nos. 1 to 6 invoked extraordinary jurisdiction of the High Court under Article
226 of the Constitution, by filing Special Criminal Application No. 1387 of
2008. It may be mentioned at this stage that the State Government, through
Police Inspector Dauljibhai Savjibhai Asari, challenged order of the trial
court refusing to hand over custody of goats and sheep to the respondent Nos. 1
to 6 before the learned Additional Sessions Judge, Banaskantha at 1 Deesa by
filing of Criminal Revision Application No. 41 of 2008.
8.
The Special Criminal Application filed by the respondent Nos. 1 to
6 was placed for preliminary hearing before the learned Single Judge, who after
hearing the parties, by an interim order dated October 24, 2008, directed the
appellant No. 1 to shift 1325 sheep and goats in proper manner to Panjarapole
at Patan under the supervision and in presence of the Investigating Officer of
Deesa City Police Station before October 31, 2008.
9.
The learned Single Judge, by the impugned judgment, has convicted
the respondent Nos. 1 to 6 under Section 11(1)(d) of the Act and imposed fine
as well as given other directions referred to above giving rise to the instant
appeal.
10.
This Court has heard the learned counsel for the parties at length
and in great detail. This Court has also considered the documents forming part 1
of the instant appeal as well as documents forming part of the Special Criminal
Application No. 1387 of 2008, which was filed by the respondent Nos. 1 t0 6
before the High Court.
11.
This Court notices that the respondent Nos. 1 to 6 in the instant
appeal had filed Special Criminal Application No. 1387 of 2008 under Article
226 of the Constitution before the High Court stating that they were owners of
the goats and sheep seized by the police pursuant to FIR No. II-C.R. No. 3131
of 2008, registered with Deesa City Police Station for alleged commission of
offence under Section 279 IPC, Section 11(1)(d) of the Act and Sections 5, 6
and 8 of Bombay Animal Preservation Act, 1954 and claimed custody of the
cattle. The names of the respondent Nos. 1 to 6 are as under: -
1.
Dosukhan Samdakhan Sindhi, at Village Gudamalani, District Barmer, Rajasthan
2.
Amirkhan Sadikkhan Sindhi, at Village Ramsar, District Barmer, Rajasthan 1
3.
Razakkhan Noorkhan Sindhi, at Village Badau, District Barmer, Rajasthan
4.
Bherakhan Hamidkhan Sindhi, at Village Bamgol, District Barmer, Rajasthan
5.
Sadikkhan Wagahkhan Sindhi, at Village Jalikheda, District Barmer, Rajasthan
6.
Chanesar Alakhan Sindhi, at Village Sarupekatla, District Barmer, Rajasthan.
It is an
admitted position that II-C.R. No. 3131 of 2008 is not registered with Deesa
City Police Station against any of the respondent Nos. 1 to 6. Admittedly,
II-C.R. No. 3131 of 2008, for the alleged commission of offences punishable
under Section 279 IPC, Section 11(1)(d) of the Act and Sections 5, 6 and 8 of
the Bombay Animal Preservation Act, 1954, is filed against following persons: -
1.
Rajakbhai Ibrahimbhai Sindhi
2.
Sherubhai Dosubhai Sindhi
3. Ramkha
Nurkha Sindhi
4.
Jamalkhan Dinakha Sindhi All residents of Nikla Tada, Taluka Shiv, District
Barmer (Rajasthan).
1 This
Court notices with surprise that though the respondent Nos. 1 to 6 herein, who
were original petitioners before the High Court, are not accused of commission
of any offence even remotely, even then the learned Single Judge of the High
Court has convicted them under Section 11(1)(d) of the Prevention of Cruelty to
Animals Act, 1960 and imposed a fine of Rs.50/- on each of them. It hardly
needs to be emphasized that those, who are not even remotely alleged to have
committed offence/offences, cannot be convicted at all either at the trial or
while exercising so called wide jurisdiction under Article 226 of the
Constitution. The four accused named above were not parties to the petition
filed by the respondent Nos. 1 to 6 nor they had approached the High Court for
custody of goats and sheep seized. Therefore, conviction of the respondent Nos.
1 to 6 under Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960
and imposition of fine of Rs.50/- on each of them will have to be regarded as
without jurisdiction, unauthorized, unwarranted and illegal and will have to be
set aside.
12.
From the final directions, given by the High Court in the impugned
judgment, it is evident that the learned Single Judge has quashed the FIR
registered as II-C.R. No. 3131 of 2008 with Deesa City Policy Station and the
proceedings pursuant thereto including the orders for interim custody of the
animals and the Revision Application preferred therefrom. The respondent Nos. 1
to 6, who had filed writ petition before the High Court, are not accused.
Therefore, they could not have prayed for and, in fact, have not prayed to
quash the FIR registered as II-C.R. No. 3131 of 2008 with Deesa City Police
Station and the proceedings pursuant thereto. Prayer for quashing the FIR could
have been made only by the accused, who have been named above. But none of them
had chosen to invoke jurisdiction of the High Court either under Section 482 of
the Code of Criminal Procedure or under Article 226 of the Constitution to get
quashed the FIR registered as II-C.R. No. 3131 of 2008 with Deesa 1 City Police
Station against them and the proceedings pursuant thereto. The quashing of FIR
at the instance of third parties is unknown to law. Further, it is well settled
that neither power under Section 482 of the Code of Criminal Procedure, 1973
nor jurisdiction under Article 226 of the Constitution can be exercised by the
High Court to quash the complaint if prima facie commission of offences is made
out. The complaint lodged by the appellant No. 1 is on the record of this
appeal. A perusal of the same indicates that the appellant No. 1 has averred in
his complaint that close to 2000 goats and sheep were being transported in
eight trucks, in a cramped manner, denying them even food and water in the
process. It is asserted by the appellant No. 1 in his complaint that carrying
of more than 200 animals in a truck is cruelty by itself. The other averments
made in the complaint could not have been ignored while deciding the question
whether the complaint 1 deserves to be quashed. The complaint has been quashed
without taking into account the contents thereof or discussing them. The
examination of the complaint lodged by the appellant No. 1 prima facie
indicates commission of offences mentioned therein by the accused. Even before
the investigation could be completed and report submitted to the competent
court by the Investigating Agency, the High Court arrived at a pre-mature conclusion
that no offences under Section 279 IPC and under Sections 5, 6 and 8 of the
Bombay Animal Preservation Act, 1954 were made out against the accused and
quashed the criminal proceedings. Such a relief to the accused, who had not
approached the High Court for quashing the FIR, could not have been granted in
a petition filed by the owners of goats and sheep seeking custody of the live
stock notwithstanding wide amplitude of power available under Article 226 of
the Constitution.
What is
astonishing is that the learned Single 2 Judge has convicted the respondent
Nos. 1 to 6 under Section 11(1)(d) of the Act, though none of them is alleged
to have committed any offence either under the Act or under I.P.C. or under the
Bombay Act of 1954 and on the other hand quashed the complaint. The scrutiny of
the judgment impugned shows that the State had not filed any counter to the
petition filed by the respondent Nos. 1 to 6 but the Additional Public
Prosecutor for the State had submitted before the Court to quash the complaint
filed by the appellant No. 1 if the complaint was found by the Court to be
untenable and commission of cognizable offence was not made out. The Additional
Public Prosecutor had requested the Court to quash the complaint in exercise of
inherent jurisdiction of a High Court under Section 482 of the Criminal
Procedure Code.
Probably,
these submissions of Additional Public Prosecutor had prompted the learned
Single Judge to examine the question whether the 2 complaint filed by the
appellant No. 1 should be quashed. The learned Single Judge has concluded in
para 11 of the judgment that the offences as alleged in the FIR registered as
II-C.R. No. 3131 of 2008 under Section 279 of IPC and Section 11(1)(d) of the
Act or Sections 5, 6 and 8 of the Bombay Animal Preservation Act were not made
out and also recorded another finding that excessive number of animals were
carried in the vehicles due to which they were subjected to unnecessary pain
and suffering. These findings are contradictory to each other in terms. Having
held that no offence under Section 11(1)(d) of Act was made out, why the
respondent Nos. 1 to 6, who are not shown as accused at all, are convicted
under Section 11(1)(d) of the Act, could not be explained by any of the learned
counsel appearing for the parties. Also the grievance made by the appellant No.
1 in ground I of the memorandum of Special Leave to Appeal that by overstepping
its jurisdiction and giving a go-bye 2 to the regular trial, the High Court has
quashed criminal proceedings without hearing the complainant/appellant No. 1
cannot be ignored by this Court in view of peculiar facts of the case.
The
learned Single Judge has quashed the complaint of the appellant No. 1 contrary
to the well settled principles governing quashing of a complaint. Quashing of
the complaint in part should not have been ordered after convicting the
respondent Nos. 1 to 6 for the offence punishable under Section 11(1)(d) of the
Act and, therefore, for all these reasons, the impugned judgment is liable to be
set aside.
13.
What is noticed by this Court is that by filing Special Criminal
Application No. 1387 of 2008, the respondent Nos. 1 to 6, who claim to be
owners of the goats and sheep seized, had prayed for the following reliefs,
which are enumerated in paragraph 8 of the petition: - "8. In the
aforesaid facts and circumstances and the grounds, the 2 petitioners pray that
Your Lordships will be pleased to issue a writ of certiorari or mandamus or any
other appropriate writ, order or direction;
(A)declaring
that the impugned order dated 5.7.2008 passed by learned Additional Chief
Judicial Magistrate, Deesa is illegal to the extent that learned trial court
has refused to hand over custody of the live stock to the petitioners and
further be pleased to quash and set aside the same to that extent;
(B)be
pleased to declare that the petitioners are entitled to get the custody of the
entire live stock which is in illegal custody of Shri Bharat Kothari -
respondent No. 1 herein and confined in the Panjarapole at Kanth, near Deesa;
(C)pending
admission and final disposal of this petition, be pleased to direct the
respondents to forthwith handover entire live stock of 1515 sheep and goats as
mentioned in the application of the petitioners before learned Additional Chief
Judicial Magistrate, Deesa in health and saleable condition;
(D)such
other and further relief that is just, fit and expedient in the facts and
circumstances of the case may be granted."
A bare
glance at the prayers made makes it clear beyond pale of doubt that the
respondent Nos. 1 to 6 had not prayed that the appellant No. 1 be directed to 2
pay compensation and cost to each of them. The grievance made by the appellant
No. 1 in the instant appeal is that without putting the parties to notice that
the Court was inclined to determine and direct the appellant No. 1 to pay by
way of compensation and cost, the learned Single Judge has determined the
amount of compensation and cost at Rs.75,000/- and directed him to pay such
amount to each of the respondent Nos. 1 to 6.
It may be
mentioned that Criminal Inquiry Case No. 237 of 2008 referred to in the
direction (iii), is the sequatter of the complaint filed by one of the aides of
the respondent Nos. 1 to 6 alleging therein that the police personnel as well
as the appellant No. 1 and other persons had robbed the accused of goats and
sheep on the trucks along with an amount of Rs.1,11,000/- in cash. After
hearing the complainant in that case, the learned Chief Judicial Magistrate,
Palanpur, passed an order on June 19, 2008 directing the complaint to be
registered in the Criminal Inquiry Register and that is how Criminal Inquiry
No. 237 of 2008 is registered in 2 the Court of the learned Chief Judicial
Magistrate, Palanpur. Further by the said order the D.S.P., Palanpur was also
directed to report within seven days before the court and submit a progress
report every seventh day till the completion of the investigation, after which
the court was to pass further orders.
14.
The approach of the High Court in granting relief not prayed for
cannot be approved by this Court.
Every
petition under Article 226 of the Constitution must contain a relief clause.
Whenever
the petitioner is entitled or is claiming more than one relief, he must pray
for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908,
if the plaintiff omits, except with the leave of the court, to sue for any
particular relief which he is entitled to get, he will not afterwards be
allowed to sue in respect of the portion so omitted or relinquished. Though the
provisions of the Code are not made applicable to the proceedings under Article
226 of the Constitution, the general principles made in the 2 Civil Procedure
Code will apply even to writ petitions. It is, therefore, incumbent on the
petitioner to claim all reliefs he seeks from the court. Normally, the court
will grant only those reliefs specifically prayed by the petitioner.
Though
the court has very vide discretion in granting relief, the court, however,
cannot, ignoring and keeping aside the norms and principles governing grant of
relief, grant a relief not even prayed for by the petitioner. In Krishna Priya
vs. University of Lucknow [(1984) 1 SCC 307], overlooking the rule relating to
grant of admission to Postgraduate course in medical college, the High Court in
the exercise of powers under Article 226 of the Constitution directed the
Medical Council to grant provisional admission to the petitioner. This Court
set aside the order passed by the High Court observing that "in his own
petition in the High Court, the respondent has merely prayed for a writ
directing the State or the College to consider his case for admission yet 2 the
High Court went a step further and straightway issued a writ of mandamus
directing the College to admit him to M.S. course and thus granted relief to
the respondent which he himself never prayed for and could not have been prayed
for". Again, in Om Prakash vs. Ram Kumar [(1991) 1 SCC 441], this Court
observed, "A party cannot be granted a relief which is not claimed, if the
circumstances of the case are such that the granting of such relief would
result in serious prejudice to the interested party and deprive him of the
valuable rights under the statute". Though a High Court has power to mould
reliefs to meet the requirements of each case, that does not mean that the
draftsman of a writ petition should not apply his mind to the proper relief
which should be asked for and throw the entire burden of it upon the court. It
is relevant to notice that the High Court was not exercising powers under
Article 226 of the Constitution suo motu but was examining the validity of
order passed by the 2 Additional Chief Judicial Magistrate refusing to grant
custody of goats and sheep to the respondent Nos. 1 to 6, in the Special
Criminal Application, which was filed by them under Article 226 of the
Constitution through a seasoned lawyer. The respondent Nos. 1 to 6 were
represented by a senior counsel practicing in the Gujarat High Court and having
regard to the facts of the case, the learned lawyer was justified only in
claiming those reliefs to which reference is made earlier. The respondent Nos.
1 to 6 were seeking a writ of certiorari or mandamus to declare that order
dated July 5, 2009, passed by the learned Chief Judicial Magistrate, Deesa,
refusing to hand over custody of the goats and sheep seized to them, was
illegal and were also seeking quashing of the said order.
At no
point of time, the learned advocate for the respondent Nos. 1 to 6 had moved
any application seeking permission of the Court to amend the prayer clause
contained in the petition 2 so as to enable the respondent Nos. 1 to 6 to claim
compensation from the appellant No. 1. A fair reading of the petition makes it
more than clear that no factual data whatsoever was laid by the respondent Nos.
1 to 6 for claiming compensation from the appellant No. 1. No facts were
mentioned as to in which manner they or any of them had suffered damage or loss
because of the handing over of custody of goats and sheep to the appellant No.
1 and ultimately to the respondent No. 8 Panjarapole situated at Patan nor the
appellant No. 1 was permitted to controvert that in fact no damage or loss was
suffered by the respondent Nos. 1 to 6 or any of them. There is no manner of
doubt that the High Court was too indulgent in this matter. After all, it was
not a petition from a person languishing in jail or from a bonded labourer or a
party in person or public spirited citizen seeking to bring a gross injustice
to the notice of the court. Here, the High Court had before it the respondent
Nos. 3 1 to 6 as petitioners. The question whether the respondent Nos. 1 to 6
suffered damage or loss because of handing over of goats and sheep to the
appellant No. 1 and/or to the respondent No. 8, depends upon facts to be
proved. Normally, such an exercise cannot be undertaken in a writ filed under
Article 226 of the Constitution. This Court further finds that the appellant
No. 1 is not only directed to pay, by way of compensation and cost, to each of
the respondent Nos. 1 to 6 a sum of Rs.75,000/- but is further directed to pay
on behalf of respondent Nos. 1 to 6 the cost of maintenance and treatment of
the animals in question to respondent No. 8 in accordance with the provisions
of sub-Section (4) of Section 35 of the Act. To mention the least, it is
evident that the respondent Nos. 1 to 6 are not parties to Criminal Inquiry
Case No. 237 of 2008, which is pending before the learned Chief Judicial
Magistrate, Palanpur. As observed earlier, the said inquiry has been initiated
at the instance of 3 one of the aides of the accused. In the said inquiry the
question posed for determination of the learned Chief Judicial Magistrate,
Palanpur, would be whether the appellant No. 1 and others with police personnel
had committed loot of trucks with goats and sheep and also cash amount of
Rs.1,11,000. The said inquiry is not concluded as on today nor any finding is
rendered that the appellant No. 1 and others with the aid of police personnel
had committed loot of the articles mentioned in the complaint of that case.
Therefore, the appellant No. 1 could not have been directed to pay compensation
and cost of Rs.75,000/- to each of the respondent Nos. 1 to 6 without prejudice
to their rights and contentions in the criminal proceedings initiated by way of
Criminal Inquiry Case No. 237 of 2008.
Moreover,
no claim was advanced by the respondent No. 8 herein that the appellant No. 1
should be directed to pay, on behalf of the owners, i.e., the respondent Nos. 1
to 6, the cost 3 of maintenance and treatment of the animals in question in
accordance with the provisions of sub-Section (4) of Section 35 of the Act.
Normally,
cost of maintenance and treatment of the animals in such cases would be payable
by one who claims custody or who are the owners of the live stock but not by
the complainant. In the instant case the assertion made by the appellant No. 1
is that he was handed over custody of goats and sheep by the police after
registration of FIR whereas the case of the respondent Nos. 1 to 6 seems to be
that the appellant No. 1 had taken possession of the live stock and trucks
illegally before the FIR was lodged and had acted in a high handed manner. The
dispute whether appellant No. 1 was handed over custody of goats and sheep
after filing of the complaint or whether he had obtained custody of goats and
sheep illegally before the complaint was lodged, will have to be adjudicated
upon evidence to be lead by the parties. Such a highly contentious dispute 3
cannot and could not be resolved in a petition under Article 226 of the
Constitution. Having regard to the totality of the facts and circumstances
emerging from the record of the case, this Court is of the firm opinion that
there was no justification at all in directing the appellant No. 1 to pay a sum
of Rs.75,000/- towards compensation and cost to each of the respondent Nos. 1
to 6 and to pay to the respondent No. 8 herein the cost of maintenance and
treatment of the animals in question on behalf of the respondent Nos. 1 to 6.
Therefore, this direction is also liable to be set aside.
15.
This Court further finds that the learned Single Judge has
directed the State of Gujarat to take appropriate departmental action for
illegal or unauthorized actions, if any on the part of any police officer and
if upon inquiry it prima facie appears that any police officer has participated
in a cognizable offence, appropriate criminal proceedings be initiated against
such officer. It is 3 true that while dealing with entitlement of custody of
goats and sheep the learned Additional Chief Judicial Magistrate, Palanpur has
come to the conclusion that the seizure of goats and sheep was not in accordance
with law. During the course of hearing of the appeal, the learned counsel for
the appellant No. 1 has referred to several admissions made by the respondent
Nos.
1 to 6
which would indicate that the custody of the goats and sheep seized was handed
over to the appellant No. 1 by the police. However, it is not necessary to make
a detailed reference to them. What is important to be noticed is that in the
order passed by the learned Additional Chief Judicial Magistrate no officer has
been named at all. Whether search and seizure of the goats and sheep is illegal
or not can be effectively gone into only at the stage of final disposal of the
trial and not at interim stage when the court hears an application under
Section 451 read with Section 457 of the Code of Criminal Procedure, 1973 for 3
interim custody of the muddammal. Direction to the State Government to initiate
appropriate departmental action for illegal or unauthorized actions at the
interim stage is harsh as well as not called for on the facts of the case.
Therefore, the said direction, which is contained in clause (5) of paragraph 14
of the impugned judgment, also deserves to be set aside.
16.
This Court further notices that the learned Single Judge has
directed the Registrar of the High Court to serve a copy of the judgment
impugned in the appeal upon the appellant No. 2, i.e., Animal Welfare Board of
India, Ministry of Environment and Forests, Government of India, 13/1 Third
Seaward Road, Valmiki Nagar, Thruvamiyr, Chennai. As this Court is inclined to
set aside most of the directions given by the learned Single Judge in the
impugned judgment, the direction to serve a copy of the judgment on the
appellant No. 2, i.e., Animal Welfare Board of 3 India becomes redundant and,
therefore, the same is also liable to be set aside.
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. II-C.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 3 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.
For the foregoing reasons the appeal partly succeeds. The
directions Nos. 1 to 6, contained in paragraph 14 of the impugned judgment, are
hereby set aside. The Special Criminal Application No. 1387 of 2008 is accepted
in part by directing the respondent No. 8 to hand over custody of goats and
sheep seized in the instant case to the respondent Nos. 1 to 6, who are owners
thereof, in such proportion as the original number of seized animals bears to
the number of 3 surviving animals, on each of them depositing a sum of rupees
fifty thousand with the trial court and each furnishing two sureties of Rs.50,000/-
to the satisfaction of the trial court. The respondent Nos. 1 to 6 be handed
over custody of goats and sheep in the presence of Police Officer in-charge of
the Police Station at Patan, who shall supervise delivery of the animals to the
respondent Nos. 1 to 6 in such manner that the animals are not subjected to
further cruelty in their transportation within the area of his jurisdiction.
The respondent Nos. 1 to 6 are directed to see that no cruelty is meted out to
the surviving animals and submit an undertaking to that effect to the trial
court within a period of two weeks from today.
19.
Subject to abovementioned directions regarding handing over
interim custody of goats and sheep, the appeal is allowed.
..............................J. [Harjit Singh Bedi]
..............................J. [J.M. Panchal]
New Delhi;
November 04, 2009.
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