MANAGER, PINJRAPOLE DEUDAR AND ANR. versus CHAKRAM MORAJI NAT AND ORS.

Citation: [1998] SUPP. 1 S.C.R. 198 · Decided: 31-08-1998 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Dismissed
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Judgment (excerpt)

A 
MANAGER, PINJRAPOLE DEUDAR AND ANR. 
v. 
CHAKRAM MORA.JI NAT AND ORS. 
AUGUST 31, 1998 
B 
[M.K. MUKHERJEE AND S.S.M. QUADRI, JJ.] 
Oiminal Law : 
Prevention of Cmelty to Animals Act, 1960: Section 35(2). 
C 
Animal-Custody of-Dwing pendency of proserntion~wner's 1ight 
to-Held: Unless tlze owner of tlzc animal is dep1ived of tlze custody c01zse-
que1zt upon his conviction 11nder tlze Act for the second time, Jze is not baJTed 
Jimn claiming inte1im custody of the animal-S. 35(2) gives discretion to the 
Magistrate to give inte1im custody of the animal to a Pinjrapole-But in the 
D event of not sending it to an infimzity the Magistrate is not bound to direct 
inte1i111 custody of the animal to a PinjrapolC-C1iminal Procedure Code, 
1973, S. 451-Bombay Police Act, 1951-Gujarat Diseases of Animals Con-
trol Rules, 1963--n·. 65 to 75. 
Animal-Inte1im custody of-Dwing pendency of prosecution-To be 
E given to owner or to the Pinjrapo!G~Detemzination of-Factors relevant laid 
, •. 
down-Fwthe1; mere offer of the Pinjrapole a Charitable organization, to keep 
F 
the animals in rnstody witho11t charging any money for maintenance, not 
decisive-E.1pecially, when there is competi11g claims of the ow11er a11d the 
Pinjrapole for their inte1im rnstody. 
Words and Phrases : 
"Shall be sent''--Meaning of-In the context of S. 35(2) of the Preven-
tion of Cmelty to Animals Act, 1960. 
The respondent's animals were seized by the police for violation of 
G t!te provisions of the Prevention of Cruelty to Animals Act, 1960, the Bom-
bay Police Act, 1951 and Rules 65 to 75 of tlie Gujarat Diseases of Animals 
Control Act, 1963. The Judicial Magistrate directed that the custody of the 
aniinals be handed over to the appellant-Pinjrapole. However, the Addi-
tional Sessions Judge directed that the custody of the animals be given to 
the owner pending trial of the case. The High Court declined to interfere 
H with the aforesaid order. Hence this appeal. 
198 
(
MANAGER, PINJRAPOLE DEUDAR v. C.M. NAT 
199 
Dismissing the appeals, this Court 
HELD: 1.1. In view of the Provisions of Section 35 of the Prevention 
of Cruelty to Animals Act, 1960 and Section 451 of the Criminal Procedure 
Code, 1973 it has to be held that unless the owner of the animal in respect 
of which he is facing prosecution, is deprived of the custody (which can be 
done only on his conviction under the Act for the second time), no bar can 
be inferred against him to claim interim custody of the animal; [204-C] 
1.2. Section 35(2) of the Act vests in the Magistrate discretion to give 
interim custody of the animal to a Pinjrapole. However, it does not say 
A 
B 
that the Magistrate shall send the animals to a Pinjrapole. The expression C 
"shall be sent" occurring in Section 35 (2) is a part of the direction to be 
given by the Magistrate if in his discretion he decides to give interim 
custody to a Pinjrapole. It follows that under Section 35(2) of the Act, the 
Magistrate has discretion to hand over interim custody of the animal to a 
Pinjrapole but he is not bound to hand over custody of the animal to a 
Pinjrapole in the event of not sending it to an infirmary. In a case where D 
the owner is claiming the custody of the animal, the Pinjrapole has no 
preferential right. [204-E-F] 
2.1. In deciding where the interim custody of the animal be given to 
the owner who is facing prosecution, or to the Pinjrapole, the following 
factors will be relevant • 
(1) the nature and gravity of the offence alleged against the owner ; 
(2) whether it is the first offence alleged or he has been found guilty 
of offences under the Act earlier; 
(3) if the owner is facing the first prosecution under the Act and the 
animal is not liable to be seized, the owner will have a better claim for the 
custody of the animal during the prosecution; 
E 
F 
( 4) the condition in which the animal was found at the time of G 
inspection and seizure; 
(5) the possibility of the animal being again subject to cruelty. 
' 
( 6) whether the Pinjrapole is functioning under the scheme of the 
Animal Welfare Board and is answerable to the Board or whether it is an H 
200 
SUPREME COURT REPORTS [1998) SUPP. l S.C.R. 
A independent 'organization; and 
(7) whether the Pinjrapole has good record of taking care of the 
animals given. under its custody. [204-G-H; 205-A-B] 
2.2. In the instant case, offer of the Pinjrapole an independent 
B charitable organization, to keep the animals in custody without charging 
a
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