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
- 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.
- 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.
- Article 51A(g) of the Constitution of India confers a constitutional duty on all citizens and the State to have compassion for living creatures.
- 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.