Case BriefsHigh Courts

Karnataka High Court: S.P Sandesh J., allowed the appeal and set aside the impugned order.

The facts of the case are such that that one Sri Harish K.B., an Animal Welfare Activist, filed a complaint at Puttenahalli Police Station, against the accused of the offences relating to animal cruelty punishable under Section 11 of the Prevention of Cruelty to Animals Act, 1960 (‘PCA Act’ for short) and also invoked Section 428 of Penal Code, 1860 i.e. IPC. The accused is an unlicensed dog breeder, who is conducting commercial activity of dogs breeding who 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. Further, the petitioner filed an application under Rules 3 and 4 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, (‘PCA Rules, 2017’ for short) seeking for a direction for permitting custody of the 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 learned Magistrate dismissed the application order directed the concerned police to hand over the interim custody of the dogs to the accused. Aggrieved by the said order, instant present petition was filed.

Arguments by the Counsel for Petitioners

  1. The case is registered under Section 11 of the PCA Act on the allegation that the animals that are subjected to cruelty and 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.
  2. Counsel relied on judgment Pinjrapole Deudar v. Chakram Moraju Nat, (1998) 6 SCC 520 and submitted that an important consideration while granting custody is to examine the health condition of the animals at the time when they were seized.
  3. Article 51A(g) of the Constitution of India confers a constitutional duty on all citizens and the State to have compassion for living creatures.
  4. Counsel relied on the judgment Animal Welfare Board of India v. A. Nagaraj, (2014) 7 SCC 547 wherein it was observed that recognized freedom of animals are :
  • freedom from hunger, thirst and malnutrition;
  • freedom from fear and distress;
  • freedom from physical and thermal discomfort;
  • freedom from pain, injury and disease; and
  • freedom to express normal patterns of behaviour.

It was further observed that “66. Rights guaranteed to the animals under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals under Sections 3 and 11 have to be read along with Articles 51A(g) and (h) of the Constitution, which is the magna carta of animal rights.”

 5. It was lastly submitted 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.

Counsel for respondents submitted that the police have given illegal custody of the dogs which are owned by respondent 2. The offences under Section 428 of IPC and Section 11 of PCA Act do not attract. It is also his contention that one of the dogs died when the custody was given to the petitioner and the same is not reported to the Court. Section 11 of the PCA Act and Rules 3 and 4 of the PCA Rules, 2017 does not attract cruelty.

The Court observed 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. It was further observed that 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 while delivering the impugned order.

Article 21 of Constitution of India Vis a Vis Animal Rights

The Court relied on Animal Welfare Board of India’s case (supra) and observed that 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.

The Court keeping in mind the facts, authoritative decisions and observations thus held that that the learned Magistrate has committed an error and it requires interference of this Court.

In view of the above, impugned order was set aside and petition allowed.[Compassion Unlimited Plus Action v. State of Karnataka, Criminal Petition No. 5344/2020, decided on 09-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while retention of custody of an Elephant named ‘Lalitha’ to her caretaker with whom she had stayed for almost 20 years and had an emotional bonding observed that

“Just solutions to legal issues may sometimes lie outside the formal statutory framework. Judges should therefore boldly think outside the box and not feel inhibited or timid.”

The above lines were quoted since the present case pertained to “Lalitha” a female elephant, and Court found light not in the provisions of the Wild Life (Protection) Act, 1972 but in the pages of Peter Wohlleben’s “The Inner Life of Animals”.

Facts

G. Thangappan had originally purchased Lalitha and the ownership certificate for the same was issued. Later the said elephant was bought by Mohammed Aslam and sold her to Kannathu Kunju Mohammed.

Petitioner purchased ‘Lalitha’ in 2000 and the applied to seek transfer of ownership.

While the petitioner awaited for the transfer ownership the said request was rejected in March 2020 with the imposition of penalties for having transported Lalitha from one place to another without permission.

Crux of filing the instant petition

Petitioner sought rejection order in regard to the transfer of ownership to be set aside.

Analysis, Law and Decision

Relevant Provisions

Section 43 (1) of the Wild Life (Protection) Act, 1972 states that no person having in his possession captive animal in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature such animal.

Section 39 (3) of the Wild Life (Protection) Act, 1972 states that no person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer acquire or keep in his possession, custody or control, or transfer to any person, whether by way of gift, sale or otherwise any wild animal falling within the purview of the Act.

Was the sale of Lalitha Illegal?

The significant fact noted by the Court was that there could be no dispute that the sale of Lalitha in the first place by Thiru, Thangappan was illegal and subsequent sales were also vitiated.

Since no prior permission was obtained by the petitioner for acquiring Lalitha, the said was rightly rejected and hence the bench upheld the said order to be valid.

Respondents stated that the petitioner will have to surrender possession of the animal for being shifted to the camp maintained by the Forest Department.

Bench considered the above, whether the same could be permitted or not?

Mirror Test

Court while considering the above question observed that:

Elephants are known to be sensitive and possessed of self-awareness. They have passed what is known as “mirror test”.

German naturalist Peter Wohlleben, after years of direct, personal observation, says that animals also feel the very same emotions which the humans are capable of. Feelings of love, grief and compassion are equally found in the animals.

Article 51A (g) of the Constitution of India calls upon us to have compassion for living creatures.

Supreme Court in Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, after noting that Chapter 7.1.2 of the guidelines of World Organization of Animal Health (OIE), recognizes five internationally recognized freedoms for animals such as (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behavior declared that Sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960. 

In light of the above-cited case, High Court held that Lalitha is entitled to express her normal patterns of behaviour.

Court noted that Lalitha has been with the writ petitioner for more than twenty years. In all these years, State did not intervene and take her away.  The department was issuing directives from time to time and they were complied with by the petitioner.

Further, it was noted that a Microchip has been implanted in Lalitha’s body so that her movements could be tracked. It seemed that Lalitha developed a great bonding with her caretakers.

Forcible relocation in alien surrounding would traumatize Lalitha.

Hence, the approach to be adopted in the instant matter is to be similar as the one in child custody cases.

Surprise inspection

Bench made a surprise inspection and found that Lalitha was being sumptuously fed and the fact that pleased the most was her not being chained at all. In fact, Lalitha looked happy and healthy.

Lalitha’s Maintenance

Caretakers were questioned by the Bench in regard to Lalitha’s maintenance to which they responded that she is taken to some well-known temples and Dargas, wherein she is paid for her majestic participation, her dignity is maintained intact.

Bench in light of the above stated that there was no exploitation to which Lalitha was being subjected.

Peter Wohlleben in the chapter “In the Service of Humanity”, in his Book remarks that when the log-haulers are kind and give rest to their horses, the animals are eager to work. One can find a similar human-animal partnership with shepherds and their dogs which also follow verbal commands. This is another example of animals taking pleasure in their work, as we can clearly see if we watch sheepdogs racing around a flock of sheep to round them up (Page 251).

Further, the Court also expressed that the veterinarians appointed by the department certified that Lalitha was being maintained properly by the petitioner.

A psychological wound would be caused to Lalitha if she will be removed from petitioners’ custody. Hence the present arrangement needed to be continued.

Another significant and essential point which was noted by the Bench was that Lalitha’s usual place of stay was a coconut groove and there was an R.O. Plant as well. The said land was owned by Thiru. Pothiraj who gave in writing to the Court that the said land will not be sold during the lifetime of Lalitha.

High Court took inspiration from the following statement of law:

“The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts’ remedial discretion and may prove decisive.”

[Passage approvingly quoted by the Supreme Court in (1994) 1 SCC 648, Malaprabha Co-Operative Sugar Factor v. Union Of India]

In light of the above passage, Court held that the administrative decision may be found to be valid in law and yet there can be no sequitur.

In the present matter,

the rights of the animal are more relevant and they determine the adjudicatory outcome and not the formal validity of the administrative order.

For the above reason, Court disposed of the petition and upheld the impugned order by directing the respondents to permit the petitioner to continue to keep the custody of Lalitha. [S.G.M. Shaa v. Principal Chief Conservator of Forests and Chief Life Warden,  2020 SCC OnLine Mad 6242, decided on 10-09-2020]

Case BriefsHigh Courts

Madras High Court: hearing the instant petition challenging the legality of Prevention of Cruelty to Animals (Dogs Breeding and Marketing) Rules, 2017 framed under Section 38 of The Prevention of Cruelty to Animals Act, 1960, the Division Bench of A.P. Sahi, CJ., and Senthilkumar Ramamoorthy, J., held that the matter can proceed appropriately only when the Union Government also files its counter affidavit. However providing interim relief, the Court directed the State Government to undertake no further action to physically seize dogs from their owners.

The Central Government framed the impugned Rules in order to make dog breeders and their marketers accountable and to prevent infliction of any cruelty in this process. Prior to framing of the Rules, The Ministry of Environment, Forest and Climate Change had invited comments on the draft Notification of Prevention of Cruelty to Animals (Dog Breeding and Marketing Rules), 2016 where  any interested person could make any suggestion on the said draft Rules in writing for consideration of the Central Government. The instant petition challenged the impugned Rules on the ground that they were “incompetent exercise of framing a delegated legislation which is constitutionally impermissible keeping in view the nature of the definition of Entries as contained in Entry 15 of List II of the Seventh Schedule of the Constitution, which is exclusively a State subject”. Rules are contrary to Entry 17 and Entry 17B of the Concurrent List (List III) of the Seventh Schedule. The petitioner’s counsel R. Srinivas also submitted that breeding not being a defined cruelty under Section 11 of the Prevention of Cruelty to Animals Act, 1960, there is no competence with the Central Government to frame any such Rules. Per contra, the counsel for the respondent G. Karthikeyan contended that, “breeding as such may not be cruelty, but, breeding in violation of certain norms relatable to dignified animal existence of pets may be excessive and in order to regulate such contingencies Rules can be framed. The respondent counsel pointed out List III Entry 17B of the Seventh Schedule of the Constitution read with Section 38 of the Prevention of Cruelty to Animals Act, 1960.

The Bench noted that since the issue at hand is related to the competency of the Central Government to frame the impugned Rules and whether “this incompetency travels beyond the boundaries contained in the Prevention of Cruelty to Animals Act, 1960”; the Court thus deemed it fit to defer the matter until the Union Government files a counter affidavit. The Court also sought assistance of the counsels of both the parties with respect to any such challenge having been raised in any other Court; orders passed in relation thereto or any expert material and research documents that may be necessary to understand the nature of the arguments that are to be advanced with regard to breeding and possession of animals vis-à-vis cruelty in the light of impugned Rules. [Kennel Club of India v. Union of India, 2020 SCC OnLine Mad 1551, decided on 22-07-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed in connection for the offences punishable under Sections 3, 5, 11 of the Uttarakhand Protection of Cow Progeny Act, 2007 and Section 11 of the Prevention of Cruelty to Animals Act, 1960.

The FIR stated that police party had raided the house of the present applicant on 15-12-2019 and recovered 245 Kg. beef with equipments meant for slaughtering and the applicant was arrested. The counsel for the applicant Mohd Safdar submitted that the applicant was an innocent person; he had been falsely implicated; nothing had been recovered from the possession of the applicant; there was no independent witness of the alleged recovery; the applicant had no criminal history; the applicant was in custody since 15-12-2019; the co-accused had been granted bail by this High Court. 

The Court while allowing the bail application stated that the object of keeping an accused person in detention during the trial was not punishment and as the applicant was a resident of Haridwar his presence can be secured anytime. [Mursalin v. State of Uttarakhand, First Bail Application No. 179 of 2020, decided on 03-03-2020]