Cruelty to animals. Release of seized animals to the accused owner pending investigation is not proper when there are serious allegations of cruelty. Karnataka High Court.
Compassion Unlimited Plus Action NGO vs State of Karnataka and another. Criminal Petition 5344/2020 decided on 9 February 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/363241/1/CRLP5344-20-09-02-2021.pdf
Relevant paragraphs: 5..The learned Magistrate ...passed the order directing the concerned police to hand over the interim
custody of the dogs to the accused.
7. The
learned counsel for the petitioner also relied on the judgment of the Apex
Court in the case of Pinjrapole Deudar and another vs Chakram Moraju Nat and others reported in (1998) 6 SCC 520, has held that an important consideration
while granting custody to Pinjrapole is to examine the health condition of the
animals at the time when they were seized. Referring this judgment, the learned
counsel would submit that in the present case also the animals were in very
poor condition and are presently being treated under intensive care.
8. The
learned counsel would submit that Article 51A(g) of the Constitution of India
confers a constitutional duty on all citizens and the State to have compassion
for living creatures. The Trial Court has simply failed to consider the cost of
maintenance directed to be awarded and erroneously directed to pay the amount
of Rs.5,000/-. The learned Magistrate did not apply his mind to the invoking of
the offences against
9. The
learned counsel during the course of his arguments, he reiterated the grounds
urged in the petition and also relied upon the judgment of the Apex Court in
the case of Sanjai Tiwari vs The State of Uttar Pradesh and another passed in
Crl.A.No.869/2020, wherein the Apex Court in paragraph No.13 of the judgment,
extracted paragraph Nos.26 and 27 of the judgment in the case of H.S.Choudhary,
who sought the relief before the High Court to quash the order of the Special
Judge, which revision was also dismissed by the High Court. While dismissing the appeals filed by H.S.
Choudhary, the Apex Court observed in
paragraph Nos.26 and 27 as follows:
“26. Even if there are million questions of law to be deeply
gone into and examined in a criminal case of this nature registered against
specified accused persons, it is for them and them alone to raise all such
questions and challenge the proceedings initiated against them at the
appropriate time before the proper forum and not for third parties under the
garb of public interest litigants.
17. Before
considering the grounds urged in the petition and also the contentions raised
by the parties, it is appropriate to refer to Section 11 of the PCA Act, which
reads as follows:
“11. Treating animals cruelly.– (1) If any person-
(b) employs in
any work or labour or for any purpose any animal which, by reason of its age or
any disease, infirmity, wound, sore or other cause, is unfit to be so employed
or, being the owner, permits any such unfit animal to be employed; or
(c) wilfully
and unreasonably administers any injurious drug or injurious substance to any
animal or wilfully and unreasonably causes or attempts to cause any such drug
or substance to be taken by any animal; or
(d) conveys or
carries, whether in or upon any vehicle or not, any animal in such a manner or
position as to subject it to unnecessary pain or suffering; or
(e) keeps or
confines any animal in any cage or other receptacle which does not measure
sufficiently in height, length and breadth to permit the animal a reasonable
opportunity for movement; or
(f) keeps for
an unreasonable time any animal chained or tethered upon an unreasonably short
or unreasonably heavy chain or cord; or
(g) being the
owner, neglects to exercise or cause to be exercised reasonably any dog
habitually chained up or kept in close confinement; or
(h) being the
owner of any animal, fails to provide such animal with sufficient food, drink
or shelter; or
(i) without
reasonable cause, abandons any animal in circumstances which tender it likely
that it will suffer pain by reason of starvation thirst; or
(j) wilfully
permits any animal, of which he is the owner, to go at large in any street,
while the animal is affected with contagious or infectious disease or, without
reasonable excuse permits any diseased or disabled animal, of which he is the
owner, to die in any street; or
(k) offers for
sale or, without reasonable cause, has in his possession any animal which is
suffering pain by reason of mutilation, starvation, thirst, overcrowding or
other ill- treatment; or
(l) mutilates
any animal or kills any animal (including stray dogs) by using the method of
strychnine injections, in the heart or in any other unnecessarily cruel manner
or;
(m) solely with
a view to providing entertainment-
(i) confines
or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so
as to make it an object or prey for any other animal; or
(ii) incites
any animal to fight or bait any other animal; or
(n) organises,
keeps, uses or acts in the management or, any place for animal fighting or for
the purpose of baiting any animal or permits or offers any place to be so used
or receives money for the admission of any other person to any place kept or
used for any such purposes; or
(o) promotes
or takes part in any shooting match or competition wherein animals are released
from captivity for the purpose of such shooting;
he shall be punishable, in the case of a first offence, with
fine which shall not be less than ten rupees but which may extend to fifty
rupees and in the case of a second or subsequent offence committed within three
years of the previous offence, with fine which shall not be less than
twenty-five rupees but which may extend, to one hundred rupees or with
imprisonment for a term which may extend, to three months, or with both.
(2) For the
purposes of sub-section (1), an owner shall be deemed to have committed an
offence if he has failed to exercise reasonable care and supervision with a
view to the prevention of such offence:
Provided that where an owner is convicted permitting cruelty
by reason only of having failed to exercise such care and supervision, he shall
not be liable to imprisonment without the option of a fine.
(3) Nothing in
this section shall apply to –
(a) the
dehorning of cattle, or the castration or branding or nose-roping of any animal
in the prescribed manner, or
(b) the
destruction of stray dogs in lethal chambers or by such other methods as may be
prescribed; or
(c) the
extermination or destruction of any animal under the authority of any law for
the time being in force; or
(d)any matter
dealt with in Chapter IV; or
(e)the
commission or omission of any act in the course of the destruction or the
preparation for destruction of any animal as food for mankind unless such
destruction or preparation was accompanied by the infliction of unnecessary
pain or suffering.”
18. Rule 3 of
the Prevention of Cruelty to Animals (Care and Maintenance of Case Property
Animals) Rules, 2017 reads as follows:
“3. Custody of animals pending litigation.- When an animal
has been seized under the provision of the Act or the rules made therunder-
(a) the
authority seizing the animal shall ensure health inspection, identification and
making such animal, through the jurisdictional veterinary officer deployed at
Government Veterinary Hospital of the area and marking may be done be ear
tagging or by chipping or by any less irksome advance technology but marking by
hot branding, cold branding and other injurious marking shall be prohibited;
(b) the
magistrate may direct the animal to be housed at an infirmary, pinjrapole,
SPCA, Animal Welfare Organisation or Gaushala during the pendency of the
litigation.
28.Having taken note of the principles laid down in the Judgment, it is clear that the very object and wisdom of legislature have to be taken note of and also the expanding of the definition and scope of Article 51-A(g) and (h) and also Article 21 of the Constitution of India, which says environment which includes, all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution of India. It is observed that animals’ well-being and welfare have been statutorily recognized under Section 3 and Section 11 of the PCA Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Section 3 and Section 11 of the PCA Act read with Article 51- A(g) and (h) of the Constitution of India.
29. When such being the case, the Magistrate ought to have taken note of the said fact into consideration. I have already pointed out that the allegation against the accused is that he is treating the animals with cruelty and also he is using the same for making the money particularly keeping the female animals for breeding purpose and the said aspect of greediness of the accused has not been taken care of by the learned Magistrate. The learned Magistrate comes to the conclusion that the permission was not obtained by the Investigating Officer handing over the dogs from the Court, but ought to have taken note of the paramount consideration of the dogs which have been treated with cruelty and the report of the veterinary doctor says that the dogs are sustained injuries, instead of going on technicality ought to have taken note of the paramount consideration of the welfare of the animals that has not been done. Hence, I am of the opinion that the learned Magistrate has committed an error and it requires an interference of this Court.
Petition allowed.
