SHRI CHATRAPATI SHIVAJI GAUSHALAversusSTATE OF MAHARASHTRA AND OTHERS

                       [2022] 13 S.C.R. 1129                             1129


           SHRI CHATRAPATI SHIVAJI GAUSHALA                              A
                                  v.
           STATE OF MAHARASHTRA AND OTHERS
                 (Criminal Appeal No. 1719 of 2022)
                       SEPTEMBER 30, 2022                                B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                  HIMA KOHLI, JJ.]
       Cattle: Custody of property pending trial – A truck
transporting 18 heads of cattle was intercepted – Driver of the truck
                                                                         C
was unable to provide satisfactory explanation about the relevant
permits – Cattle were seized and FIR was registered for offences
punishable u/ss. 5A, 6 of the Maharashtra Act, 11(1)(d) of PCA Act
and other allied provisions – Respondents filed an application u/
ss. 451 and 457 Cr.PC seeking interim custody of the cattle on
ground that they were the owners of the cattle – Magistrate rejected     D
the application – At the same time, appellants (Gaushala) filed an
application for interim custody u/s. 8(b) of PCA Act read with rules
3, 4 and 5 of the Prevention of Cruelty to Animals (Care and
Maintenance of Case Property Animals) Rules, 2017 – Magistrate
allowed the application by appellant and granted them custody of
                                                                         E
cattle – Sessions Judge allowed the revision filed by the private
respondents and held that being the owners, they were entitled to
the custody of the seized animals, subject to the execution of an
indemnity bond for preservation of cattle – High Court upheld the
order of the Sessions Judge by noting that there was no material to
indicate that the cattle were physically harmed or that they were        F
placed in danger or were being starved – Held : The proviso to
s.8(3) of the Maharashtra Act provides for handing over of the
seized cow, bull, or bullock to the nearest gosadan, goshala,
pinjrapole, hinsa nivaran sangh or such other animal welfare
organization willing to accept such custody – Since the private
                                                                         G
respondents were prima facie carrying the cattle in cruel conditions
without a valid permit, and appellant has shown its willingness to
accept the interim custody of the cattle, Magistrate rightly concluded
that the cattle would be safe in the custody of the appellant instead
of the private respondents – Trial for offences under the
Maharashtra Act must take place expeditiously and preferably within      H
                                1129
1130            SUPREME COURT REPORTS                     [2022] 13 S.C.R.


 A     a period of six months to ensure that the animals do not continue to
       remain in custody for an indefinite period – Code of Criminal
       Procedure, 1973 – ss. 451 and 457 – Maharashtra Animal
       Preservation Act, 1976 – ss. 8, 6, 5A, 5B, 5C and 5D – Prevention
       of Cruelty to Animals Act, 1960 – ss. 11, 35 and 38 – Prevention of
       Cruelty to Animals (Care and Maintenance of Case Property Animals)
 B     Rules, 2017 – rr.3, 4 and 5 – Motor Vehicles Act, 1988 – s.117 –
       Transport of Animal Rules, 1978.
             Allowing the appeal, the Court
             HELD: 1. The proviso to Section 8(3) of the Maharashtra
       Act was inserted by the Amending Act of 1995. The proviso
 C
       stipulates that pending trial, the seized cow, bull or bullock shall
       be handed over to the nearest gosadan, goshala, pinjrapole, hinsa
       nivaran sangh or such other animal welfare organizations willing
       to accept such custody and the accused would be liable to pay for
       their maintenance for the period when they remain in custody.
 D     The appellants have invoked the proviso to Section 8(3) for
       claiming custody of the cattle. The intention of the legislature in
       incorporating the proviso to Section 8(3) was to give effect to the
       object of the Maharashtra Act to preserve and protect cows, bulls,
       and bullocks useful for milch, breeding, draught, or agricultural
       purposes. The proviso to Section 8(3) of the Maharashtra Act
 E     provides for handing over of the seized cow, bull, or bullock to
       the nearest gosadan, goshala, pinjrapole, hinsa nivaran sangh or
       such other animal welfare organization willing to accept such
       custody. In the present case, the appellant was willing and ready
       to accept custody of the seized cattle. In light of the prima facie
 F     observation that the private respondents were in violation of the
       Transport of Animal Rules 1978, it was incumbent upon the High
       Court to ensure that the seized cattle would be properly preserved
       and maintained until the conclusion of the trial proceedings. [Paras
       14 and 20][1136-D-E; 1138-H; 1139-A-B]
             2. The appellant has shown its willingness to accept the
 G     interim custody of the cattle. In view of the fact that private
       respondents were prima facie carrying the cattle in cruel
       conditions without a valid permit, the JMFC rightly concluded
       that the cattle would be safe in the custody of the appellant instead
       of the private respondents. [Para 21][1139-A-B]
 H
    SHRI CHATRAPATI SHIVAJI GAUSHALA v. STATE OF                         1131
             MAHARASHTRA AND OTHERS

      3. Since the seizure of the cattle in February 2019, two of        A
the cattle have died, leaving sixteen cattle in the balance, with
the appellant. In such matters, it is necessary that the trial for
offences punishable under the Maharashtra Act must take place
expeditiously and that it should be concluded preferably within a
period of six months. This would ensure that the animals do not
                                                                         B
continue to remain in custody under the provisions of the proviso
to Section 8(3) of the Maharashtra Act for an indefinite period.
[Para 22][1139-E-F]
      Manager, Pinjrapole Deudar and Another v. Chakram
      Moraji Nat and Others (1998) 6 SCC 520 : [1998] 1
      Suppl. SCR 198; Jagatguru Sant Tukaram Goshala v.                  C
      The State of Maharashtra and Another [2005] 3 SCR
      630 – referred to.
                       Case Law Reference
[1998] 1 Suppl. SCR 198         referred to                Para 7        D
[2005] 3 SCR 630                referred to                Para 23
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1719 of 2022.
      From the Judgment and Order dated 17-10-2019 of the High Court
                                                                         E
of Judicature at Bombay at Aurangabad in CRLWP No. 762/2019.
       Dr. Manish Singhvi, Sr. Adv., Ayush Anand, Shubhendu Anand,
Aprit Parkash, Shivam Singhani, Raju Gupta, P.S.Sudheer, Bharat Sood,
Ms. Shruti Jose, Advs. for the Appellant.
     Sachin Patil, Siddharath Dharmadhikari, Aaditya Aniruddha Pande,    F
Geo Joseph, Rishvi Muhammed, Durgesh Gutpa, Advs. for the
Respondents.
      The following Judgment of the Court was delivered:
                           JUDGMENT
                                                                         G
      1. Leave granted.
      2. This appeal arises from a judgment and order dated 17 October
2019 of a Single Judge of the Aurangabad Bench of the High Court of
Judicature at Bombay.
                                                                         H
1132             SUPREME COURT REPORTS                             [2022] 13 S.C.R.


 A            3. On 17 March 2019, a truck was intercepted and was found to
       be transporting eighteen heads of cattle – fifteen bullocks and three
       buffaloes. The eighth respondent was driving the truck and was unable
       to provide a satisfactory explanation about the relevant permits. The
       truck was taken to the police station and the cattle were seized. FIR No.
       59 of 2019 was registered at Parbhani Rural Police Station on 17 March
 B
       2019 for offences punishable under Section 5A of the Maharashtra Animal
       Preservation (Amendment) Act 19951 and Section 6 of the Maharashtra
       Animal Preservation Act 19762, Section 11(1)(d) of the Prevention of
       Cruelty to Animals Act 19603, Section 117 of the Motor Vehicles Act
       1988 and other allied provisions.
 C            4. The second to eighth respondents claim to be owners of the
       seized cattle. The appellant is a gaushala engaged in the welfare,
       preservation, and protection of animals in Parbhani, Maharashtra. An
       application dated 20 March 2019 was filed before the Judicial Magistrate
       First Class, Parbhani4 by the second to eighth respondents under Sections
 D     451 and 457 of the Code of Criminal Procedure 1973 seeking interim
       custody of the cattle on the ground that they were the owners of the
       cattle. Thereafter, the appellant also filed an application on 22 March
       2019 for interim custody of the cattle till the conclusion of the trial under
       the proviso to Section 8(b) of the Maharashtra Act and Rules 3, 4, and 5
       of the Prevention of Cruelty to Animals (Care and Maintenance of Case
 E     Property Animals) Rules, 2017.
              5. By an order dated 1 April 2019, the JMFC allowed the application
       filed by the appellant. The JMFC rejected the application by the private
       respondents, noting that they did not have proper permits for carrying
       the cattle in the truck at the relevant time. The JMFC observed that the
 F     cattle will be safe in the custody of the appellant. In addition, the private
       respondents were directed to pay an amount of Rs. 100/- per head of
       cattle per day towards maintenance and treatment of cattle to the
       appellant.
             6. The Additional Sessions Judge-3, Parbhani allowed the revision
 G     preferred by the private respondents on 24 April 2019 and held that they
       were entitled to the custody of the seized animals, subject to the execution
       1
         Amendment Act 1995 (brought into force on 4 March 2015)
       2
         “Maharashtra Act”
       3
         “PCA Act”
 H     4
         “JMFC”
        SHRI CHATRAPATI SHIVAJI GAUSHALA v. STATE OF                             1133
                 MAHARASHTRA AND OTHERS

of an indemnity bond for the preservation of the cattle. The Sessions            A
Judge noted that being the owners, the private respondents had a
preferential right to get interim custody of the seized cattle. The Sessions
Judge allowed the revision noting that the trial court failed to take notice
of Section 457 of the CrPC,.
       7. The order of the Sessions Judge was questioned in a writ petition      B
under Article 227 of the Constitution of India by the appellant. The High
Court by its impugned judgment dated 17 October 2019 dismissed the
petition. The High Court upheld the order of the Sessions Judge granting
custody to the private respondents by relying on a decision of this Court
in Manager, Pinjrapole Deudar and Another v. Chakram Moraji
Nat and Others5. The High Court noted that prima facie, the material             C
on the record indicated that the cattle were being subjected to cruel
conditions for transportation since as many as eighteen cattle were loaded
into one truck. In this context, the High Court held:
         “16. Bearing in mind these principles, if one examines the matter
         in hand, the only material before the Magistrate which would prima      D
         facie show that the cattle was being treated cruelly is the fact
         that as many as eighteen cattle i.e. fifteen bullocks and three
         buffaloes were being transported in one vehicle. As has been
         pointed out by the learned advocate for the petitioner, the Transport
         of Animals Rules, 1978 framed pursuant to enabling provision            E
         contained in section 38 of Prevention of cruelty to Animals Act,
         1960 clearly lay down various elaborate provisions laying down
         specification for transportation of animals. Chapter IV lays down
         provisions in Rules 47 to 56 for transaction of cattle. Rule 56 lays
         down that when cattle are to be transported by a goods vehicle
         the vehicle should have a special type of tail board and padding        F
         around the sides, it should provide anti sleeping material and no
         goods vehicle carry more than six cattle. In the matter in hand, as
         many as eighteen cattle were being transported in one vehicle
         and such transportation was clearly violative of this rule and
         constitutes cruelty.”                                                   G
      8. Nonetheless, the High Court held that there was no material to
indicate that the cattle were physically harmed or that they were placed
in danger or were being starved. The High Court noted that there was

5
    (1998) 6 SCC 520                                                             H
1134            SUPREME COURT REPORTS                           [2022] 13 S.C.R.


 A     no apprehension that if they were returned to their owners, the cattle
       would face similar cruelty since the accused had prior criminal
       antecedents. Relying on the decision of this Court, noted above, the
       High Court held that the Magistrate while dealing with an application for
       interim custody of the animals ought to have regard to the circumstances
       which have been spelt out in the judgment of this Court in Manager,
 B
       Pinjrapole Deudar and Another (supra). The High Court further held
       that the decision of the JMFC to grant interim custody to the appellant
       on the basis of the Section 8(3) of the Maharashtra Act without taking
       into consideration the relevant circumstances was clearly perverse and
       arbitrary. Hence, on these grounds, the order of the Sessions Court in
 C     revision was not interfered with by the High Court in the exercise of the
       writ jurisdiction.
             9. We have heard Dr Manish Singhvi, senior counsel appearing
       on behalf of the appellant and Mr Sachin Patil, counsel for the State of
       Maharashtra.
 D
             10. Notice was issued to the private respondents. The office report
       indicates that they are served, but have not entered appearance.
             11. The Maharashtra Act received the assent of the President on
       16 February 1977 and was published in the Maharashtra Government
       Gazette on 1 March 1977. The enactment was amended by an Amending
 E
       Act of 1995, which received the assent of the President nearly two
       decades thereafter on 26 February 2015 and was published in the
       Maharashtra Government Gazette on 4 March 2015.
             12. Section 8 of the Maharashtra Act contains provisions for entry,
       search, seizure, and custody. The said provision is extracted below:
 F
             “Power of entry, search, seizure and custody.— (1) For the
             purposes of this Act, the competent authority or any person
             authorised in writing in that behalf by the competent authority
             (hereinafter in this section referred to as “the authorised person”)
             shall have power to enter and inspect any place where the
 G
             competent authority or the authorised person has reason to believe
             that an offence under this Act has been, or is likely to be, committed.
             (2) Every person in occupation of any such place shall allow the
             competent authority or authorised person such access to that place
             as may be necessary for the aforesaid purpose and shall answer
 H
    SHRI CHATRAPATI SHIVAJI GAUSHALA v. STATE OF                              1135
             MAHARASHTRA AND OTHERS

      to the best of his knowledge and belief any question put to him by      A
      the competent authority or the authorised person.
      (3) Any Police Officer not below the rank of Sub-Inspector or
      any person authorised in this behalf by the State Government,
      may, with a view to securing compliance of the provisions of
      Sections 5-A, 5-B, 5-C or 5-D, for satisfying himself that the          B
      provisions of the said sections have been complied with may,—
      (a) enter, stop and search, or authorise any person to enter, stop
      and search any vehicle used or intended to be used for the export
      of cow, bull or bullock;
      (b) seize or authorise the seizure of cow, bull or bullock in respect   C
      of which he suspects that any provision of Sections 5-A, 5-B, 5-C
      or 5-D has been, is being or is about to be contravened, along with
      the vehicles in which such cow, bull or bullock are found and
      there after take or authorise the taking of all measures necessary
      for securing the production of such cow, bull or bullock and the        D
      vehicles so seized, in a court and for their safe custody pending
      such production:
      Provided that pending trial, seized cow, bull or bullock shall be
      handed over to the nearest Gosadan, Goshala, Panjrapole, Hinsa
      Nivaran Sangh or such other Animal Welfare Organizations willing        E
      to accept such custody and the accused shall be liable to pay for
      their maintenance for the period they remain in custody with any
      of the said institutions or organizations as per the orders of the
      court.
      (4) The provisions of Section 100 of the Code of Criminal               F
      Procedure, 1973 (2 of 1974) relating to search and seizure shall,
      so far as may be, apply to searches and seizures under this section.
                                                     (emphasis supplied)
       13. Section 8(3) empowers a police officer not below the rank
of Sub-Inspector or a duly authorized person to inter alia seize a cow,       G
bull, or bullock in respect of which he suspects that the provisions of
Sections 5A, 5B, 5C, or 5D are being or are about to be contravened.
The provision also authorizes the seizure of the vehicle in which the
cattle are being transported. Section 5A of the Maharashtra Act is in
the following terms:
                                                                              H
1136            SUPREME COURT REPORTS                           [2022] 13 S.C.R.


 A           “5-A. Prohibition on transport and export of cow, bull or
             bullock for slaughter.— (1) No person shall transport or offer
             for transport or cause to be transported cow, bull or bullock from
             any place within the State to any place outside the State for the
             purpose of its slaughter in contravention of the provisions of this
             Act or with the knowledge that it will be or is likely to be, so
 B
             slaughtered.
             (2) No person shall export or cause to be exported outside the
             State of Maharashtra cow, bull or bullock for the purpose of
             slaughter either directly or through his agent or servant or any
             other person acting on his behalf, in contravention of the provisions
 C
             of this Act or with the knowledge that it will be or is likely to be
             slaughtered.”
              14. The proviso to Section 8(3) of the Maharashtra Act was inserted
       by the Amending Act of 1995. The proviso stipulates that pending trial,
 D     the seized cow, bull or bullock shall be handed over to the nearest
       gosadan, goshala, pinjrapole, hinsa nivaran sangh or such other
       animal welfare organizations willing to accept such custody and the
       accused would be liable to pay for their maintenance for the period
       when they remain in custody. The appellants have invoked the proviso
       to Section 8(3) for claiming custody of the cattle.
 E
              15. Though the High Court noticed the provisions of Section 8(3)
       as amended, it has relied upon the decision of this Court in Manager,
       Pinjrapole Deudar and Another (supra). Now that case relates to the
       power conferred by Section 35 of the PCA Act. Section 35(2) of the
       said enactment is in the following terms:
 F
             “35. Treatment and care of animals: ***
             (2) The Magistrate before whom a prosecution for an offence
             against this Act has been instituted may direct that the animal
             concerned shall be treated and cared for in an infirmary, until it is
 G           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.”
 H
    SHRI CHATRAPATI SHIVAJI GAUSHALA v. STATE OF                                1137
             MAHARASHTRA AND OTHERS

      16. While interpreting the above provision, this Court in Manager,        A
Pinjrapole Deudar and Another (supra) noted that:
      “8. *** Under sub-section (2), the Magistrate may order that:
      (a) 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     B
      discharge;
      (b) the animal shall be sent to a pinjrapole; or
      (c) the animal shall be destroyed if it is certified by a Veterinary
      Officer, authorised under the Rules, to be incurable or if it is found
                                                                                C
      that it cannot be removed without cruelty.”
      17. It was in this backdrop that this Court in Manager, Pinjrapole
Deudar and Another (supra) held that the Section 35(2) vests in the
JMFC a discretion to give interim custody of the animals to a pinjrapole.
This Court observed:                                                            D
      “10. Now adverting to the contention that under Section 35(2), in
      the event of the animal not being sent to an infirmary, the Magistrate
      is bound to give the interim custody to a pinjrapole, we find it
      difficult to accede to it. We have noted above the options available
      to the Magistrate under Section 35(2). That sub-section vests in          E
      the Magistrate the discretion to give interim custody of the animal
      to a pinjrapole. The material part of the 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 a pinjrapole. It is
      thus evident that the expression “shall be sent” is a part of the         F
      direction to be given by the Magistrate if in his discretion he decides
      to give interim custody to a pinjrapole. It follows that under Section
      35(2) of the Act, the Magistrate has discretion to hand over interim
      custody of the animal to a pinjrapole but he is not bound to hand
      over custody of the animal to a pinjrapole in the event of not            G
      sending it to an infirmary. In a case where the owner is claiming
      the custody of the animal, the 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:
                                                                                H
1138            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


 A           (1) the nature and gravity of the offence alleged against the owner;
             (2) whether it is the first offence alleged or he has been found
             guilty of offences under the Act earlier;
             (3) if the owner is facing the first prosecution under the Act, the
             animal is not liable to be seized, so the owner will have a better
 B
             claim for the custody of the animal during the prosecution;
             (4) the condition in which the animal was found at the time of
             inspection and seizure;
             (5) the possibility of the animal being again subjected to cruelty.
 C
             There cannot be any doubt that establishment of the 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:

 D           (a) whether the pinjrapole is functioning as an independent
             organization or under the scheme of the Board and is answerable
             to the Board; and
             (b) whether the pinjrapole has a good record of taking care of the
             animals given under its custody.”
 E            18. The above observations of this Court interpret Section 35(2)
       of the PCA Act. As the court noted, the said provision does not contain
       a mandate that the Magistrate shall send the animal to a pinjrapole.
       Under that provision, the Magistrate has a discretion to hand over interim
       custody of the animal to a pinjrapole, but is not bound to do so.
 F            19. In the present case, the High Court upon evaluating the
       circumstances in which the cattle were being transported arrived at a
       prima facie conclusion that as many as eighteen cattle were being
       transported in one vehicle. The High Court has also noted that this
       constituted cruelty as it violated Rule 56 of the Transport of Animal
 G     Rules 1978 framed in accordance with the enabling provisions of Section
       38 of the PCA Act. The amended provisions of the Maharashtra Act
       have received the assent of the President.
             20. The intention of the legislature in incorporating the proviso to
       Section 8(3) was to give effect to the object of the Maharashtra Act to
 H     preserve and protect cows, bulls, and bullocks useful for milch, breeding,
        SHRI CHATRAPATI SHIVAJI GAUSHALA v. STATE OF                             1139
                 MAHARASHTRA AND OTHERS

draught, or agricultural purposes. The proviso to Section 8(3) of the            A
Maharashtra Act provides for handing over of the seized cow, bull, or
bullock to the nearest gosadan, goshala, pinjrapole, hinsa nivaran sangh
or such other animal welfare organization willing to accept such custody.
In the present case, the appellant was willing and ready to accept custody
of the seized cattle. In light of the prima facie observation that the private
                                                                                 B
respondents were in violation of the Transport of Animal Rules 1978, it
was incumbent upon the High Court to ensure that the seized cattle
would be properly preserved and maintained until the conclusion of the
trial proceedings.
       21. The appellant has shown its willingness to accept the interim
                                                                                 C
custody of the cattle. In view of the fact that private respondents were
prima facie carrying the cattle in cruel conditions without a valid permit,
the JMFC rightly concluded that the cattle would be safe in the custody
of the appellant instead of the private respondents. In view of the above
findings, the ultimate direction which was issued by the High Court was
contrary to the proviso to Section 8(3) of the Maharashtra Act and would         D
have to be set aside, while restoring the order of the JMFC. We order
accordingly.
        22. The Court has been apprised of the fact that since the seizure
of the cattle in February 2019, two of the cattle have died, leaving sixteen
cattle in the balance, with the appellant. In such matters, it is necessary      E
that the trial for offences punishable under the Maharashtra Act must
take place expeditiously and that it should be concluded preferably within
a period of six months. This would ensure that the animals do not continue
to remain in custody under the provisions of the proviso to Section 8(3)
of the Maharashtra Act for an indefinite period. We issue a direction in
                                                                                 F
those terms.
        23. In an order of a two-Judge Bench of this Court dated 25
January 2022 in Jagatguru Sant Tukaram Goshala v. The State of
Maharashtra and Another6, the Court noted a factual situation in which
the cattle which were seized on 24 July 2012, continued to remain under
                                                                                 G
custody for a decade and would have broadly outlived their commercial
utility. In the present case, as noted above, two of the cattle have died.
This leads to the conclusion that trials for offences punishable under the
Maharashtra Act must be concluded expeditiously. The courts concerned
6
    Criminal Appeal No. 132 of 2022                                              H
1140              SUPREME COURT REPORTS                         [2022] 13 S.C.R.


 A     shall take all necessary steps to conclude the trials within a period of six
       months so as to bring finality.
               24. The appeal is allowed in the above terms. The impugned
       judgment and order of the High Court dated 17 October 2019 is set-
       aside. The order of the JMFC dated 1 April 2019 stands restored.
 B     However, the appellants have stated before this Court that they will not
       insist on claiming any compensation for the maintenance of the animals
       pending the trial. Since a substantial period has already elapsed, the
       JMFC shall conclude the trial within three months.
              25. Pending applications, if any, stand disposed of.
 C
       Devika Gujral                                                 Appeal allowed.
       (Assisted by : Preetam Bharti, LCRA)




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