13 Feb 2021 3:30 AM GMT
The Karnataka High Court recently set aside an order of the Magistrate court handing over custody of ten dogs given to their owner who treated them with cruelty. A single bench of Justice H P Sandesh, set aside the order of the magistrate court which restored the animals to the man accused of cruelty and handed over the dogs to an NGO, Compassion Unlimited Plus Action, which...
The Karnataka High Court recently set aside an order of the Magistrate court handing over custody of ten dogs given to their owner who treated them with cruelty.
A single bench of Justice H P Sandesh, set aside the order of the magistrate court which restored the animals to the man accused of cruelty and handed over the dogs to an NGO, Compassion Unlimited Plus Action, which expressed willingness to take care of them.
"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", the Court observed.
Harish K.B, an Animal Welfare Activist, filed a complaint on 19.09.2020 to the Inspector, Puttenahalli Police Station, against the accused (SHREYAS) for the offences relating to animal cruelty. The police registered a case against the accused under Section 11 of the Prevention of Cruelty to Animals Act, 1960.
It was alleged in the complaint that the accused is an unlicensed dog breeder, who is conducting commercial activity of dogs breeding. He has in his custody many female dogs and puppies that are being subjected to abject cruelty by confining them in an unsanitary kennel. The complaint states that the dogs confined are in docks without being provided with adequate food, water and veterinary care, thereby subjecting them to pain and sufferings. The complaint also narrates that a few dogs are in pathetic condition and are in need of immediate medical care and attention.
Acting on the complaint, the police seized five dogs from the accused and five dogs from the custody of the accused and handed them over to trust and the said dogs were transferred to the Rehabilitation Center for immediate treatment situated at CUPA Second Chance Adoption Center, Sarjapura Road, Bengaluru.
The Karnataka Animal Welfare Board issued a notice dated 21.09.2020 to the first respondent police directing them to seize the remaining dogs and hand them over to a trusted NGO for care and maintenance.
The petitioner, an NGO named Compassion Unlimited Plus, filed an application under Rules 3 and 4 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, seeking for a direction from the court below permitting custody of the aforesaid ten dogs to the petitioner, pending disposal of the above criminal proceedings and also seeking maintenance at Rs.50,000, per month towards cost of medical treatment, food and shelter for the seized dogs. The police have filed a requisition on 30.09.2020. The accused also filed objections to the said applications. The magistrate dismissed the application filed by the petitioner and passed the order directing the concerned police to hand over the interim custody of the dogs to the accused. Being aggrieved by the said order, the present petition was filed.
Submissions made by the petitioner.
A case is registered under Section 11 of the PCA Act on the allegation that the animals that are subjected to cruelty cannot remain in the custody of the owner of such animal, pending investigation. It is the further contention that as per Rules 3 and 4 of the PCA Rules, 2017, the accused cannot retain custody of animals that are subjected to cruelty, pending litigation.
The petitioner relied on judgment passed by the Supreme Court in the case of State of Uttar Pradesh v. Mustakeem passed in Crl.A.Nos.283-87/2002 dated 22.02.2002 and Pinjrapole Deudar And Others v. Chakram Moraju Nat And Others reported in (1998) 6 SCC 520, to support their contentions.
Further relying on Article 51A(g) of the Constitution of India which confers a constitutional duty on all citizens and the State to have compassion for living creatures. It was submitted that "The Magistrate did not apply his mind to the invoking of the offences against respondent No.2 and passed an erroneous order."
Reliance was also placed on the Judgment of the apex court in the case of Animal Welfare Board of India v. A Nagaraja And Ors reported in (2014) 7 SCC 547, in which the court recognized freedoms for animals. Following which the petitioner contended that "Giving the animals to the custody of a person who has not treated them properly and not taken care, amounts to handing over the animals to the custody of the wrong person and hence the impugned order is liable to be set aside."
It was contended that the police have given illegal custody of the dogs which are owned by respondent No.2. Further it was said that one of the dogs died when the custody was given to the petitioner and the same is not reported to the Court. The investigation is not yet completed. Future custody in favour of the petitioner would cause loss to respondent No.2 and there are no grounds to set aside the order.
Firstly the court noted that "The paramount consideration of the Act as well as the Rules is to protect the interest of the dogs, which was subjected to cruelty." Elaborating further, the court said the magistrate court ignored the pathetic conditions of the animals and the injuries they have sustained".
It observed "The Magistrate ought to have taken note of the said fact into consideration while passing an order directing the Investigating Officer to release the dogs to the custody of the accused and the same has not been considered by the Magistrate."
It added "The Court also ought to have taken into paramount consideration the welfare of the dogs, which are under the pathetic condition. The Court also ought to have looked into the wisdom of the legislature in passing the enactment and framing the rules that has not been taken note of. The Rule 3(b) is specific that the learned Magistrate has to take note of the conditions of the dog and exercise the power in consonance with the object of the enactment and also the welfare of the animal and the same has not been considered,"
The court heavily relied on the judgment passed in the case of ANIMAL WELFARE BOARD OF INDIA v. A. NAGARAJA ANDOTHERS and said "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 23 the definition and scope of Article 51-A(g) and (h) and also 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 added "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."
It concluded by saying "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."
Case Title: Compassion Unlimited Plus Action And State of Karnataka
Case No: CRIMINAL PETITION No.5344/2020
Date of Order: February 9, 2021.
Coram: Justice H P Sandesh
Appearance: Advocate ALWYN SEBASTIAN for petitioner.
Advocate NAMITHA MAHESH B.G for R-1;
Advocate RAKSHITH R. for R2.
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