VIJAY RAJ C SHAH v. ABDULHAMID GAFURBHAI

(cid:9)Mr. Sheth has contended that Panjarapole is an institution essentially concerned with the well-being of the animals. The petitioner is, therefore, vitally interested in the well-being of the muddamal live stock and it is but essential that pending trial, the possession of the live stock be handed over to the petitioner. In support of his contention, he has relied upon the judgment of this court in the matter of MANAGER, PANJARAPOLE DEODAR, CHAKARAM MORARJI NAT & ANR ( 1997 {2} GLR 1321). In the said matter, this court has upheld the contention not only that the Panjarapole is entitled to claim possession of the seized live stock pending trial, but it has also locus to bring the petition for claiming such possession. However, at the same time, the court has observed that - " as a rule, the custody of the animal is not to be given to the Panjarapole, it will be for the court concerned to exercise judicial discretion for the custody of the animal.

Though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula, the court, while considering the question of custody should take into consideration and bear in mind the following criteria : (A) The prime consideration of the court should be for the preservation of live stock and elimination of chances of further cruelty to live stock. (B) The court should not be unnecessarily guided by emotions and sentiments. (C) If it is a first offence, unless there are strong reasons to believe that if the custody of animal is given to accused or owner, the animal will be further exposed to cruelty, the custody should be given to owner or the person from whose possession the animal is taken, on just conditions. (D) Looking to the nature of trial, unless presence of the animal for identification or other purpose is required, the custody should be given to the owner or person from whose custody the animal is taken, on just conditions.

(E) In case the animal or animals are likely to be forfeited to Government at the conclusion of the trial or their presence is necessary during trial, whether the object can be achieved by imposing appropriate conditions ? (F) In case, it is considered necessary to give custody to Panjarapole, following steps be taken : (i) Reputation of Panjarapole concerned be ascertained with respect to maintenance of animal. (ii) Undertaking be obtained from authorities of Panjarapole that they will maintain and take proper care of the health of animal and further, they will not claim costs for maintenance of animal from accused or owner of the animal. (ii) They will not sell or transfer the animal and they will produce the animal as and when they are directed to do so. (iv) If they fail to produce animal at the conclusion of trial and if the court so directs, they will pay the compensation for the loss of each animal.

(G) Keeping in view animal as a muddamal, all efforts should be made to complete the trial expeditiously. (cid:9)In the present case, Mr. Sheth has not been able to point out that in the event the custody of the live stock is handed over to its owner, the live stock would be subjected to further cruelty or the same will not be produced before the court as and when required. It is not even the case of the petitioner that earlier also accused had been found guilty of any offence under the Act. Under the circumstances, I am of the view that the impugned order of the learned Sessions Judge, Banaskantha, is just and proper. (cid:9)Revision is, therefore, dismissed. The impugned judgment and order dated 16th September, 1993, passed in Criminal Revision Application No. 63/93 is confirmed. Rule is discharged. Interim relief is vacated. (cid:9) (cid:9)..... JOSHI (cid:9)