Dismissed

Samir Chanda and Anr. v. the State of Assam and Anr.

Gauhati HC23 Sept 2022Crl.Rev.P./165/2021

Case brief

AI extract

What is this about?

Petitioners sought to set aside orders directing them to claim cattle maintenance expenses from the local authority instead of the custodian. The High Court affirmed the lower court's direction based on Rules deeming owners to have relinquished claim for abandoned animals, ordering payment from the local authority within 15 days.

What did the court decide?

Directed petitioners to approach local authority for reimbursement with bills; local authority to dispose within 15 days. Petition dismissed.

Samir Chanda and Anr. Vs the State of Assam… — Civil Procedure and Limitation | Gauhati HC (2022)

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Page No.# 1/8

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GAHC010097592021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./165/2021

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SAMIR CHANDA AND ANR. S/O LATE SURENDRA CHANDA R/O VILL- SRIRAMPUR, P.O. SRIRAMPUR, P.S. GOSSAIGAON, DIST. KOKRAJHAR (BTAD), ASSAM

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2: DIPAK SHILL S/OLT. SADHAN SHILL R/O VILL- DAMRAPARA P.O. SRIRAMPUR P.S. GOSSAIGAON DIST. KOKRAJHAR (BTAD) ASSA

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VERSUS

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THE STATE OF ASSAM AND ANR. TO BE REP. BY THE PUBLIC PROSECUTOR, ASSAM

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2:DHYAN FOUNDATION

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REP. BY ITS AUTHORIZED REPRESENTATIVE SMT. RENU SHARMA HAVING ITS OFFICE AT HALDIBARI NIGAM BAHALPUR P.O. CHAPAR P.S. CHAPAR DIST. DHUBRI ASSAM PIN-78337

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Advocate for the Petitioner : MR. S C BISWAS

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Advocate for the Respondent : PP, ASSAM

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BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN

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Date of hearing :	25.08.2022
Date of judgment :	23.09.2022

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JUDGEMENT AND ORDER (CAV)

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Heard Mr. F.A. Laskar, learned counsel for the petitioners and also heard Mr. Ditul Das, learned counsel for the respondent No. 2 and Mr. P. Borthakur, learned Addl. Public Prosecutor for the State respondent No. 1.

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This application under Section 397/401 read with section 482 of the Code of Criminal Procedure, 1973 is preferred by the petitioner No.1, Samir Chanda and petitioner No.2, Dipak Shill for setting aside the impugned Order dated 10.06.2021, passed by the learned SubDivisional Judicial Magistrate (M), Gossaigaon in Gossaigaon P.S. Case No.589/2021, and the Order dated 31.01.2021, passed by the learned Judicial Magistrate First Class, Gossaigaon, in Gossaigaon P.S. Case No.589/2021. It is to be noted here that vide impugned Order dated 10.06.2021, the learned Court below has dismissed the petition No.89/2021, filed by the petitioners for directing the respondent No.2 to provide expenditures of the cattles which were in their custody till the same were handed over to the respondent No.2 (Dhyan Foundation).

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The factual background leading to filing of the present petition is briefly stated as

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under:-

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“On 19.12.2020, one Samnan Barman, ABC/780 of Simultapu Police Outpost lodged one FIR with the Officer-in-Charge of Gossaigaon to the effect that on that day, at about 11:30 PM, acting on a tip off, they apprehended one truck, bearing Regn. No.NL-01/AD-3926 on NH 31C, at Simultapu, and found 25 numbers of male cattle being carried in the said truck and the driver of the truck could not produce any valid document of the cattles and accordingly, the said 25 numbers of cattles were seized, preparing seizure list and it is suspected that the same were carried illegally with an intention of stealing the same. Upon the said FIR, the Officer-in-Charge of Gossaigaon P.S., registered Gossaigaon P.S. Case No. 589/2020, under section 379/411/289 IPC, read with section 11(1)(a)(d)(e)(h) of Prevention of Cruelty to Animal Act, 1960 and endorse S.I Paul Lalhlimsang to investigate the same. Thereafter, S.I Paul Lalhlimsang, vide his letter dated 24.12.2020 prayed the in-charge, SD Lives Stocks Center & Shelter House, Srirampur, Gossaigaon which were being owned by the petitioners, for keeping the seized cow in their safe custody. Thereafter, as per direction of the learned SDJM(M), Gossaigaon, dated 30.01.2021, and 06.03.2021, the said cattle were released in the custody of the respondent No.2 (Dhyan Foundation) and therefafter, the petitioners have filed the petition No.1390/21, before the learned SDJM(M), Gossaigaon praying for remitting the expenditure of the petitioners by the Dhyan Foundation, which they are incurred in taking care, protection and maintenance of the cattles, in connection with Gossaigaon P.S. Case No.589/2020. But, the learned SDJM (M), Gossaigaon, vide impugned order dated 30.01.2021 rejected the petition. Being highly aggrieved, the petitioners approached this Court by filing Crl. Rev. P. No.720/2021 and vide order dated 20.04.2021, this Court was pleased to direct

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the SDJM(M), Gossaigaon to decide the matter afresh as regard the cost of the petitioners within 3 weeks and thereafter, the petitioners filed another petition being No.89/2021, before the learned SDJM (M), Gossaigaon and thereafter, vide impugned order dated 10.06.2021, the learned SDJM(M) observed that the petitioners are not entitled to receive any expenses from the respondent No.2 and held that the petitioners may approach the local authority/Govt. of Assam along with relevant bills and papers for re-imbursement of the expenses.”

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Being highly aggrieved, the petitioners approached this Court again on the following grounds:-

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(a) That, as per definition of owner in section 2F of the Prevention of Cruelty to Animal Act, 1960, the respondent No.2 are the owner of the same and as such, direction may be given to the owner i.e. respondent No.2 to make payment of the expenditures incurred by them. But, the learned Court below has passed the impugned order dated 10.06.2021, whimsically, without application in mind.

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(b) That, the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 provides for payment of free litigation expenses through the State Board shall pay for expenditure during pendency of the litigation as there is no provision, the Government/local authority will reject the prayer of the petitioners of cost, which requires re-visiting of the Order dated 10.06.2021, passed by the learned SDJM(M), Gossaigaon.

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has not given any direction to the local authority to pay the cost of the petitioners and

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no time limit has been given for payment of the expenditure to the petitioners.

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(d) That, the petitioners did not believe that the Government will bear the cost of treatment and maintenance of the cattle were kept in their shelter house. Therefore, it is contend that to allow the petition and to direct the respondent No. 2 to make payment of the amount.

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The respondent No.2 entered appearance and filed objection on following grounds:-

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(1) That, the petitioners have not been running any Gushala, instead, they are running a lively stock centre, which is a profit making organization.

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(2) That, the respondent No. 2 has been taking zimma of the seized cattles and the owner of the same are liable to make payment of the amount being claimed by the petitioners, not by the respondent No.2, and therefore, it is contended to dismiss the petition.

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The petitioners have submitted their written argument and against the written argument advanced by the petitioners, the respondent No. 2. Mr. F A Laskar, learned counsel for the petitioners submits that the impugned orders, passed by the learned Court below suffers from manifest illegality and irregularities and the same requires interference of this Court. Mr. Laskar further submits that the petitioners, who are the owners of M/s SD Lives Stocks Center, maintained and taken care of the seized cattles, as per request of the I.O. of Gossaigaon P.S. Case No. 589/2020 and that as the Lives Stocks Center and Dhyan Foundation are similar organization with the same objects, and that while dismissing the

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prayer of the petitioners seeking the cost of maintenance from the respondent No. 2, the learned Court below had directed the local Authority/Govt. of Assam to make payment of the cost, but, there is no such provision in the Act and Rules and there is every likelihood of dismissing of the prayer by the local authority or the State Government in absence of any provision and therefore, it is contended to allow the petition by setting aside the impugned judgment and impugned order.

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On the other hand, Mr. P Borthakur, learned Addl. PP submits that in some cases, the learned CJM, Kamrup (M) at Guwahati and learned Judicial Magistrate First Class, Rangia has directed that the State Animal Welfare Board to bear the expenses for taking care and maintenance of seized cattle and as such, the State Animal Board may be directed to bear the cost which the petitioners have incurred in maintaining the seized cattles. It is to be noted here that though the learned Addl. PP has submitted that the State Animal Board may be directed to make payment, yet, the learned PP has failed to persuade this Court to make such a directon by showing any provison of law. Moreover, the State Animal Board is not a party in this proceeding and as such, without hearing State Animal Board, no such direction can be issued by this Court.

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On the other hand, Mr. Ditul, Das learned counsel for the respondent No. 2, submits that the respondent No. 2 has taken custody of the cattle, as per direction of SDJM (M), Gossaigaon, and it is not liable to make payment of cost of maintenance of the cattle, prior to taking zimma of the same and as such, it is contended to dismiss the petition.

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Having heard the submission of learned Advocate of both sides, I have carefully gone

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through the petition and the ground mention herein and the written arguments, so advanced by the parties, carefully.

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It appears from the impugned order dated 10.06.2021, that the learned Court below, after discussing all the relevant provisions of Prevention of Cruelty to Animal Act and also the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 has directed the local authority to make payment of the costs, which the petitioners have incurred for maintaining the cattles. It also appears that the learned Court below has called for a repord from the I.O. concerned who has submitted the report that 162 cattles and seized were kept in the custody of SD Lives Stocks Center & Shelter House, Srirampur, Gossaigaon and out of the same, 86 numbers of seized cattles were given in the zimma of the Dhyan Foundation, i.e. the respondent No.2, and 20 numbers of cattles had expired and that 74 numbers of cattles are alive at present and no actual owner of the said 74 cattles had appeared claiming the seized cattles and he has not been able to ascertain the actual owner till date.

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In view of the aforesaid report of the I.O., it appears that the said cattles were abandoned by the real owners. A careful perusal of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, especially Rule 7 reveals that it deals with abandoned animals. Sub-section 1 provides that in case where the I.O. filed a report that prima facie offence, under the Act, has been made out, but he is unable to determine the accused or the owner of the animal, the Magistrate shall direct the local authority to ascertain the cost involved and it shall be deemed that the owner has relinquished the ownership of the animal. Sub-section 2 provides that a relinquishment of ownership shall

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have no effect on any criminal charges against the unknown offender or the owner. In view of the expressed provision in Rule 6 of sub-Rule 1, this Court is of the view that the learned Court below has committed no illegality or infirmity in directing the local authority to pay the expenses incurred by the petitioners while keeping the seized cattles in SD Lives Stocks Center.

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Accordingly, it is provided that the petitioners shall approach the local authority/Govt. of Assam, along with the relevant bills and papers for re-imbursement of its expenses and on receipt of such bills and papers, for re-imbursement. The local authority/Govt. of Assam shall dispose of the prayer of the petitioners, within a period of 15 days from the date of receipt of a certified copy of the Judgment & Order of this Court.

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In the result, I find no merit in the petition and accordingly, the same is dismissed. The parties have to bear their own cost.

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JUDGE

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Comparing Assistant

Samir Chanda and Anr. v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Samir Chanda and Anr. v. the State of Assam and Anr.

Case brief

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What did the court decide?

What the court decided

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