BY AD v. VIJAYKRISHNAN S. MENON

SRI.SANGEETH C.U, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 334 OF 2024 3 JUDGMENT The petitioner states that he is the Kalari Gurukkal of Amritandamayi Mutt, Vallikkavu, and is authorized to pursue legal proceedings on behalf of the Mutt. According to him, the Mutt is the owner of an elephant by the name ‘Raman’. He contends that the elephant was entrusted with the 3rd respondent herein for its upkeep. Later, the Mutt decided to take back the elephant from the custody of the 3rd respondent. When the 3rd respondent refused, a complaint was lodged before the Station House Officer, consequent to which Crime No.1000 of 2023 was registered inter alia for the offenses punishable under Sections 406 and 420 of the IPC. After the registration of the Crime, an application under Section 451 of the Cr.P.C was filed before the learned Magistrate for getting interim custody of the elephant. The learned Magistrate refused to grant the interim custody. The matter was taken before this Court, and by order dated 20.11.2023 in Crl.M.C No.7600/2023, this Court allowed the petition and ordered the learned Magistrate to reconsider the application in the light of observations made by this Court.

2. The learned Magistrate reconsidered the matter and granted interim custody of the elephant to the petitioner subject to condition. One of the conditions is that a fitness certificate from the Government Veterinary Surgeon is to be obtained concerning the health of the elephant. Based on the request made by the petitioner, the Veterinary Surgeon examined the WP(C) NO. 334 OF 2024 4 elephant and issued Ext. P9 certificate. The relevant portion of the certificate reads as under:- At present, the elephant is not fit for transportation due to the following reasons: i) The elephant Raman is in Musth during the last 5 ½ months and still continuing. ii) At present, the elephant is not having any mahouts to look after and giving training. I told Mr. Jayakrishna Menon, the petitioner, to appoint mahouts at the earliest. After appointing the mahouts and obeying their commands and giving proper nutrition, elephant may come to post Musth period. After that, only the elephant may be taken to other tethering sites by transportation. It may take around one month.

3. The petitioner states that on the strength of the Official Memorandum issued by the learned Magistrate, the petitioner, along with his first and second mahouts, went to take custody of the elephant. However, the 3rd respondent refused his request to permit his mahouts to take care of the elephant and give proper nutrition to enable the elephant to come out of the musth period. The 3rd respondent has taken a stand that as the elephant is tethered to his property, no consent can be given to the mahouts to take care of the elephant. In the said circumstances, the petitioner is stated to have submitted Ext. P11 representation to the 4th respondent seeking assistance. He has also submitted Ext.P12 representation before respondents 1 and 2 to grant police protection to get the orders of the WP(C) NO. 334 OF 2024 5 learned Magistrate implemented and to get custody of the elephant.

4. During the pendency of this writ petition, this Court by an order dated 10.1.2024, directed the 4th respondent to inspect the elephant and to submit before this Court as to the health condition of the elephant. In tune with the directions issued, the 4th respondent has submitted a report, and the said report reads as under Musth Evaluation of a Captive Elephant Today afternoon, following the request of the Deputy Conservator of Forests, Ernakulam Social Forestry Division, we, the undersigned jointly examined the captive elephant named Raman (as given in the presented microchip and ownership certificates) at its tethering place at Amballur in Thrissur district, in the presence of the Deputy Conservator of Forests, Ernakulam Social Forestry Division, Range Forest Officer, Chalakkudy Social Forestry Range and the present custodian and mahouts of the elephant. We examined the elephant by standing at a safe distance. At the tethering site, we found the elephant in standing posture, alert and active, and chained on both its fore and hindlimbs. Movements of the trunk, ears, and tail were apparently normal. Elephants showed slight discharge from temporal glands on both sides of the head, but both the glands appeared to be regressed. Urine dribbling and whitish discoloration at the tip of prepuce was evident. However, at the time of examination, the elephant urinated with relaxed penis. Behavioral aggression towards the mahout and the bystanders was seen at the time of examination. Body condition is satisfactory, and the elephant showed normal patterns of feeding, watering, defecation, and urination. Photographs taken at the time of examination is given below. WP(C) NO. 334 OF 2024 6 Based on the above-mentioned observations, we certify that at the time of examination, general health of the elephant is good. Regarding the musth condition, we are of the opinion that this elephant is near to the end of its annual musth period. After the musth period is over, under the full control of the first mahout, the elephant must be taken out regular baths and other daily activities. As soon as the first mahout can have full control over the elephant, obedience to the commands can be evaluated and verified by a team of veterinarians, as required

5. In the report, it is stated that the general health of the elephant is good, and the elephant is near the end of its annual musth period. After the musth period is over, the elephant must be taken out for regular baths and other activities under the control of the 1st Mahout. Only after the first mahout gets full control over the elephant can the obedience to the commands be evaluated by a team of doctors and the future course determined.

6. The learned counsel appearing for the petitioner submits that in view of the orders passed by this Court and the learned Magistrate, it cannot be disputed that the petitioner is entitled to the custody of the elephant. As reported by the veterinary surgeons, if the petitioner wants to implement the directions issued by the learned Magistrate, the Mahouts will have to take care of the elephant till the end of the musth period and get acquainted with the pachyderm. Only then will the Mahouts be able to take control of the elephant and shift the animal from its present tethering place to the Mutt. WP(C) NO. 334 OF 2024 7

7. The learned counsel appearing for the respondents after referring to the subsequent report of the veterinary surgeon submitted that the Doctors have opined that it is for the 1st mahout to take care of the elephant until the musth period is over. According to the learned counsel, it would not be prudent to permit the mahouts appointed by the petitioner to be near the elephant as it is in an aggressive stage.

8. The learned Government Pleader submits that from the report, it appears that the musth period is almost over, and there cannot be any impediment in permitting the mahouts of the petitioner to be near the elephant so that they can get acquainted with the elephant. It is submitted that only after the musth period is over, can the elephant be properly trained, and after getting the fitness certified by the doctors can the animal be shifted.

9. Having considered the submissions, I find that as per the orders issued by the learned Magistrate, the petitioner is entitled to the interim custody of the elephant. The learned Magistrate has also issued an Ext.P10 official memorandum for the elephant's release. However, the elephant is currently in its Musth period, rendering its immediate relocation unfeasible. Medical reports indicate that the elephant is nearing the end of this extended Musth period. Following the conclusion of the Musth period, the elephant requires regular baths and other activities under supervision of the 1st Mahout. Effective control over the elephant by the 1st WP(C) NO. 334 OF 2024 8 Mahout is essential for assessing its responsiveness to commands, as determined by a team of doctors, to decide the subsequent steps. In light of these facts, it is imperative that the petitioner's mahouts are allowed to familiarize themselves with the elephant. Once the elephant emerges from the Musth period, it is essential that it becomes acquainted with the mahouts appointed by the petitioner. This measure will facilitate the smooth transportation of the elephant to the petitioner's premises. This step is crucial for the implementation of the order issued by the learned Magistrate. Any refusal by the 3rd respondent to grant such permission can only be regarded as an attempt to obstruct the execution of the Court's orders. In that view of the matter, this writ petition is disposed of, and the following directions are issued. a) The 3rd respondent shall forthwith permit the mahouts appointed by the petitioner to familiarise themselves with the elephant. For that purpose, they shall be provided access to the property of the 3rd respondent and permitted to assist the Mahouts appointed by the 3rd respondent. b) After the end of the musth period of the elephant, the 4th respondent shall inspect the elephant and confirm whether the elephant can be relocated as ordered by the learned Magistrate with all precautions to safeguard the health of the elephant. WP(C) NO. 334 OF 2024 9 c) On furnishing such a report, the petitioner shall be entitled to relocate the elephant on the strength of Ext. P10 official memorandum issued by the learned Magistrate. d) If any obstruction is caused by the party respondent to any of the above directions, the 2nd respondent shall render sufficient and adequate protection to implement the same Sru Sd/- RAJA VIJAYARAGHAVAN V JUDGE WP(C) NO. 334 OF 2024 10 PETITIONER’S EXHIBITS Exhibit p1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 APPENDIX OF WP(C) 334/2024 A TRUE COPY OF THE AUTHORISATION LETTER ISSUED BY THE JOINT SECRETARY, MATHA AMRITHANANDAMAYI MUTT IN FAVOUR OF THE PETITIONER TO CONDUCT CASE. A TRUE COPY OF THE CERTIFICATE OF OWNERSHIP ISSUED BY THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE) & CHIEF WILDLIFE WARDEN, KERALA DATED 30/07/14. A TRUE COPY OF THE CERTIFICATE OF IMPLANTATION OF MICROCHIP DATED 10/06/08. A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BOOK OF CAPTIVE ELEPHANT MAINTAINED BY KERALA FOREST & WILDLIFE DEPARTMENT. A TRUE COPY OF THE FIR IN CRIME NO. 1000/23 OF THE KARUNAGAPPALLY POLICE STATION. A TRUE COPY OF THE ORDER DATED 20.11.2023 IN CRL.M.C. NO. 7600/2023 OF THIS HON'BLE COURT. A TRUE COPY OF THE ORDER DATED 18.12.2023 PASSED BY THE JFMC, KARUNAGAPPALLY IN CMP NO. 2146/23 IN CRIME NO 1000/23 OF KARUNAGAPPALLY POLICE STATION. A TRUE COPY OF THE CERTIFICATE DATED 21.12.2023 ISSUED BY DR. P. ALOYSIUS, ASSISTANT DIRECTOR, ANIMAL HUSBANDRY DEPARTMENT (RTD.). A TRUE COPY OF THE CERTIFICATE DATED 21.12.2023 ISSUED BY DR. N.PONNUMANI, VETERINARY SURGEON. A TRUE COPY OF THE OFFICIAL MEMORANDUM DATED 22.12.2023 ISSUED BY THE JFMC, KARUNAGAPPALLY DIRECTING TO RELEASE THE ELEPHANT TO THE WP(C) NO. 334 OF 2024 11 PETITIONER. Exhibit P11 A TRUE COPY OF THE TYPED COPY OF REPRESENTATION DATED 27.12.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P12 A TRUE COPY OF THE PETITION SENT TO THE RESPONDENTS 1 & 2 VIA THEIR EMAIL ADDRESS.