Bharat Amratlal Kothari vs Dosukhan Samadkhan Sindhi & Ors

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;

4

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. 1

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. 1

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 that 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. 3

[Harjit Singh Bedi]

..............................J. [J.M. Panchal]

New Delhi;

November 04, 2009.