D.G. Banswal Vs the State of Maharashtra and Anr.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.964 OF 2008

¶4

D.G.Banswal

¶5

.. Petitioner

¶6

Versus

¶7

State of Maharashtra & Anr.

¶8

.. Respondents

¶9

Mr.P.D.Desai for the petitioner.
Smt.P.P.Shinde, A.P.P for the State.

¶10

CORAM : ABHAY S.OKA, J.

¶11

DATE : 22nd August 2008.

¶12

ORAL JUDGMENT:

¶13

.The submissions of the learned counsel appearing
for the parties were heard on the last date. A F.I.R
was lodged against the petitioner alleging offences
under section 428, 429 read with section 34 of the
Indian Penal Code and section 3 and clauses (a), (d),
(i), (k) and (l) of sub section 1 of section 11 of the
Prevention of Cruelty to Animals Act, 1960 (hereinafter
referred to as the said Act of 1960).

¶14

2.The first informant is one Rita Wajirani who is
an animal rights activist. In her complaint before the
police she stated that she is a trustee of a Trust by
the name "People for Animals". According to her case
she is doing the work of supplying food to the animals.
According to her case she visits Sindhi Colony, Chembur,
Mumbai every day in the morning and evening for

¶15

: 2 :

¶16

providing food to stray dogs in the said colony.
According to her she also regularly vists Tata Colony
and the Bharat Petroleum residential colony at Chembur,
Mumbai for the same purpose.

¶17

3.She stated that on 27th July 2000 at about 10.30
p.m as usual she visited the Colony of Bharat Petroleum
Corporation Ltd for providing food to the stray dogs.
At that time she found that none of the dogs in the
colony could be located. After waiting for some time
she left the eatables outside the gate and came back to
her residence. On the next day around 11.00 p.m, she
visited the same Bharat Petroleum Corporation colony for
the purpose of providing food to the stray dogs. She
waited for half an hour but the dogs did not make
appearance. Therefore, she enquired with the two
security guards at the gate of the colony. The security
guards informed her that on 27th July 2000 the dogs in
the colony were put in a tempo and were taken out. The
said security guards allowed the first informant to call
one Mr.Pathak who was a security officer. The said
security officer informed the first informant that as
per order passed by the petitioner and in the presence
of the petitioner, a contractor by the name Sham took
all the dogs away by putting them in a tempo. At 2.15
a.m she reported the incident to the R.C.F police
station. On 29th July 2000 she again visited the same

¶18

: 3 :

¶19

police station and F.I.R was registered. She further
stated that the petitioner and the said contractor Sham
caught about 50 stray dogs in the colony by subjecting
them to harassment and unnecessary pain. It is alleged
that by putting so may dogs in a tempo, the dogs were
subjected to torture. The further allegation is that
the dogs were kept hungry and by a tempo they were taken
away to an undisclosed destination. It was alleged that
in the process injury has been caused to the stray dogs.
The allegation is that the said dogs were abandoned in
such a manner that they will be subjected to hunger. A
supplementary statement of the first informant was
recorded on 06th October 2000 in which she stated that
at the instance of the petitioner the said contractor
had left 14 dogs near BEST bus depot at Dharavi and the
said dogs were traced. In the supplementary statement
she stated that despite of best efforts made by her,
other 36 dogs could not be traced. An apprehension was
expressed that the animals must have been killed in
unnecessarily cruel manner.

¶20

4.The submission of the learned counsel appearing
for the petitioner is that no offence has been made out
either under section 428 or section 429 of the Indian
Penal Code against the petitioner. He submitted that
the allegations of commission of offences under the said
Act of 1960 are very vague and therefore, no offence

¶21

: 4 :

¶22

under provisions of the said Act has been made out. The
submission is that there is no material available on
record except for the statements of the first informant.
He submitted that the police without making any inquiry
have registered an offence against the petitioner. He
submitted that this was a fit case to exercise power
under section 482 of the said Code.

¶23

5.The learned A.P.P relied upon affidavit of one
Punjaji Eknath Garud, a police sub-inspector attached to
RCF police station at Chembur, Mumbai and submitted to
the orders of the Court.

¶24

6.I have considered the submissions. The first
informant is an animal activist. According to her case,
on instructions of the petitioner and in his presence, a
contractor appointed by him by the name Sham picked up
about 50 stray dogs in the colony and the dogs were
dumped in a tempo and the said dogs were taken away.
Fourteen dogs could be traced at Dharavi. The other
dogs were not traced out. There are statements of other
animal activist recorded by the police. There are
statements recorded of the security guards posted in the
said colony. The said statements record that the stray
dogs were taken by the contractor in a tempo and were
taken out of the colony. Even a statement of a security
officer of the Bharat Petroleum Corporation Colony has

¶25

: 5 :

¶26

been recorded in which he has stated that as per the
instructions of the petitioner one Sham caught hold of
stray dogs in the colony and has taken away the stray
dogs. He stated that he was not aware as to what
happened to the said dogs taken by the said man. The
statement of security guard by name Vedprakash shows
that the said Sham entered the colony along with a
tempo. He stated that when the tempo came back, when he
made inquiries with the said Sham, he revealed that he
had caught hold of 30 to 35 dogs which were kept in the
tempo.

¶27

7.Section 3 of the said Act of 1960 provides that
it is the duty of every person having the care or charge
of any animal to take all reasonable measures to ensure
the well-being of such animal and prevent the infliction
of unnecessary pain or suffering upon said animal. The
petitioner is the Estate Manager of the colony of the
Bharat Petroleum and the material on record shows that
as incharge of the said colony he directed the said
contractor Sham to pick up the dogs in the colony and
take away the said dogs from the colony. The dogs were
caught and put in a tempo in presence of the petitioner
and as per his instructions. Section 11 of the said Act
of 1960 deals with treating the animals cruelly.
Clauses (d), (i), (k) and (l) read thus:

¶28

: 6 :

¶29

"11.Treating animals cruelly-

¶30

(1)....

¶31

(a)....

¶32

(b)....

¶33

(c)....

¶34

(d)conveys or carries, whether in or upon
any vehicle or not, any animal in such a manner
or position as to subject it to unnecessary pain
or suffering; or

¶35

(e)

¶36

(f)....

¶37

(g)....

¶38

(h)....

¶39

(i)without reasonable cause, abandons any
animal in circumstances which render it likely
that it will suffer pain by reason of starvation

¶40

: 7 :

¶41

or thirst; or

¶42

(k)offers for sale or, without reasonable
cause, has in his possession any animal which is
suffering pain by reason of mutilation,
starvation, thirst, overcrowding or other
ill-treatment; or

¶43

(l)mutilates any animal or kills any animal
(including stray dogs) by using the method of
strychnine injections in the heart or in any
other unnecessarily cruel manner; or

¶44

8.The allegation made in the statements recorded
by the police show that about 45 to 50 dogs were dumped
into a tempo under the instructions of and in presence
of the petitioner by the said contractor Sham. The dogs
were carried to undisclosed destination by the said

¶45

: 8 :

¶46

tempo. The allegation is that the dogs were abandoned
in circumstances which will render it likely that they
will suffer pain by reason of starvation or thirst.
Therefore, in so far as clauses (a), (d) and (i) of
section 11 are concerned, there is material available on
record to proceed against the petitioner. So far as
clause (k) is concerned, there is material on record to
proceed against the petitioner as the dogs were

¶47

subjected to overcrowding. In so far as clause (l) is
concerned, there is no allegation made by any of the
witnesses as regards mutilating or killing of stray dogs
by using the method of administering injection in heart.
However, clause (l) also covers a contingency where the
dogs are killed in unnecessarily cruel manner. Till
today about 36 dogs have not been traced and therefore
the case of the first informant is that the dogs must
have been killed in unnecessarily cruel manner.

¶48

9.In so far as sections 428 and 429 of Indian
Penal Code are concerned, there is absolutely no
material to proceed as against the petitioner.
Therefore, the petition must succeed in part and I pass
the following order:

¶49

. The petition succeeds in so far as the
offences alleged under sections 428 and 429 of

¶50

: 9 :

¶51

the Indian Penal Code are concerned. However,
the prosecution will proceed for offences
alleged under the Prevention of Cruelty to
Animals Act, 1960.

D.G. Banswal v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

D.G. Banswal v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Shree Gurumaooli Agencies and Ors. Vs Prabhakar v. Kulkarni and Anr.

Navnath Nagdev Jadhav Vs the State of Maharashtra

Popat Husain Khamkar and Ors. Vs the State of Maharashtra

Fortis Securities Ltd. and Anr. Vs State of Maharashtra and Anr.

Shri. S.R. Chitnis Vs the State of Maharashtra

Shankar Sakharam Kenjale (Since Decd. Thro. L.H. ) Sampat Shankar Kenjale Vs Narayan Krishna Gade