With the assistance of the learned advocates for the respective parties I have examined the documents placed on the record of the application. The charge-sheet is filed against Shaikh Jabbar Shaikh Khairu, Shaikh Budan Shaikh Ahmad, Shaikh Kahar Shaikh Khairu, Shaikh Rajjak Shaikh Kalu and Shaikh Sharif Shaikh Rafiq. The applicant is not shown as accused. The learned A.P.P. has not been able to show anything from the charge-sheet on the basis of which it can be said that the claim of the applicant for grant of interim custody of 7 bullocks cannot be considered. The learned advocate for the applicant has submitted that the applicant has produced on the record of the trial Court the receipts issued by the Market Contractor of Grampanchayat, Hiwarkhed and by the Agricultural Produce Market Committee to substantiate the claim of the applicant that he has purchased the 7 bullocks. Surprisingly, the learned Magistrate as also the learned Sessions Judge have not dealt with the documentary evidence. Though the non-applicant No. 1 refuted the claim of the applicant regarding ownership in respect of 7 bullocks by alleging that the receipts are bogus and fabricated, the learned A.P.P. has not been able to point out that such charge is levelled against the applicant. As stated above, the applicant is not even shown as accused.
8. In the above facts, I find that the order passed by the learned Magistrate rejecting the application filed by the applicant for interim custody of the bullocks and the order passed by the learned Additional Sessions Judge, are unsustainable. Consequently, the impugned orders are required to be set aside and the application filed by the applicant has to be allowed.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application (Apl) No. 188 of 2014
Decided On: 30.03.2016
Shaikh Yusuf Vs. The State of Maharashtra
Coram:Z.A. Haq, J.
Citation:2016 ALLMR(CRI)4755
1. Heard Shri A.B. Mirza, advocate for the applicant, Shri N.B. Jawade, A.P.P. for non-applicant No. 1 and Shri M.P. Khajanchi, advocate for non-applicant No. 2. Rule. Rule made returnable forthwith.
2. The applicant has challenged the order passed by the learned Magistrate on 1st April, 2013 rejecting the application filed by the applicant for grant of interim custody of 7 bullocks and allowing the application filed by the non-applicant No. 2 under Section 451 and 457 of the Code of Criminal Procedure and granting interim custody of the bullocks to the non-applicant No. 2. The applicant has also challenged the order passed by the Sessions Court on 18th June, 2013 dismissing the revision filed by the applicant and confirming the order passed by the learned Magistrate.
3. The Assistant Police Inspector, Hiwarkhed registered the Crime No. 21/2013 against five persons for the offence punishable under Section 429, 468, 471 and 420 of the Indian Penal Code and under Section 11 of the Prevention of Cruelty to Animals Act, 1960 (for short "Act of 1960"). The allegations against the accused are that the police team found one white bullock in slaughtered condition in Kasaipura locality of Hiwarkhed and at a distance of about 50 feet to 60 feet they found bullocks tied in a small place without water and fodder. It is alleged that accused prepared bogus receipts in the names of different persons showing that the bullocks were purchased by those persons. The 7 bullocks which were found tied, have been seized.
The applicant and the non-applicant No. 2 filed applications under Section 451 and 457 of the Code of Criminal Procedure praying for interim custody of 7 bullocks. The learned Magistrate, by the impugned order, rejected the application filed by the applicant, allowed the application filed by the non-applicant No. 2 and directed that the custody of 7 bullocks be given to the non-applicant No. 2 on the conditions as stated in the order.
The applicant being aggrieved by the order passed by the learned Magistrate, filed revision which is dismissed by the Sessions Court.
The applicant being aggrieved in the matter, has filed this application under Section 482 of the Code of Criminal Procedure.
4. Shri Mirza, learned advocate for the applicant has submitted that the applicant is in business of sale and purchase of live stock, that the applicant is not concerned with the slaughtered bullock alleged to have been found by the police team, that 7 bullocks which are given in interim custody of the non-applicant No. 2 were tied in a shed and they are owned by the applicant. It is submitted that the applicant has produced on the record of the trial Court receipts issued by the market Contractor of Grampanchayat Hiwarkhed and Agricultural Produce Committee to substantiate the claim that the bullocks are purchased by the applicant. It is submitted that the statement of the Market Contractor supports the contention of the applicant that he is the owner of the bullocks. It is argued that the failure on the part of the subordinate Courts to appreciate the documentary evidence and the statements on the record, vitiates the orders passed by them. The learned advocate has pointed out that at the time when the order was passed by the learned Magistrate, the investigation was going on, however, subsequently, after the investigation is completed and charge-sheet is filed on 13th January, 2014, the applicant is not shown as accused and there is nothing in the chargesheet to show that the claim of the applicant that 7 bullocks, which are given in interim custody of the non-applicant No. 2, are not owned by the applicant. It is prayed that the orders passed by the subordinate Courts be set aside, application filed by the applicant under Section 451 and 457 of the Code of Criminal Procedure be allowed and the non-applicant No. 2 be directed to give the custody of 7 bullocks which were handed over to it, to the applicant.
5. Shri Jawade, learned A.P.P. has submitted that the applicant is not entitled for interim custody of the 7 bullocks as according to the prosecution the receipts produced by the applicant to contend that he has purchased those bullocks, are forged and fabricated. It is further submitted that the 7 bullocks were found at a distance of about 50 feet to 60 feet from slaughtered bullock and were tied together in such a condition that it can be said that the applicant treated bullocks with cruelty. It is further submitted that the bullocks were not provided with fodder and water. It is argued that the interim custody of the bullocks is rightly given to the non-applicant No. 2 which is taking care of all the bullocks. It is prayed that the application be dismissed and the orders passed by the subordinate Courts be maintained.
6. Shri Khajanchi, learned advocate for the non-applicant No. 2 has relied on the provisions of Section 35(2) of the Act of 1960 and has submitted that the learned Magistrate has properly exercised his powers and has rightly given interim custody of the bullocks to the non-applicant No. 2. It is submitted that the applicant had not provided fodder and water to the bullocks and had kept them tied together and therefore, the applicant committed offence punishable under Section 11(1)(h) and 11(1)(f) of the Act of 1960 and applicant is not entitled for interim custody of the bullocks. It is further submitted that the learned Magistrate has considered all the material on the record and the order passed by him does not suffer from any illegality or perversity and the learned Additional Sessions Judge has examined the matter independently and after considering the legal position, has rightly maintained the order passed by the learned Magistrate. It is submitted that the orders passed by the subordinate Courts are proper and does not require any interference by this Court under Section 482 of the Code of Criminal Procedure. It is prayed that the application be dismissed with costs.
7. With the assistance of the learned advocates for the respective parties I have examined the documents placed on the record of the application. The charge-sheet is filed against Shaikh Jabbar Shaikh Khairu, Shaikh Budan Shaikh Ahmad, Shaikh Kahar Shaikh Khairu, Shaikh Rajjak Shaikh Kalu and Shaikh Sharif Shaikh Rafiq. The applicant is not shown as accused. The learned A.P.P. has not been able to show anything from the charge-sheet on the basis of which it can be said that the claim of the applicant for grant of interim custody of 7 bullocks cannot be considered. The learned advocate for the applicant has submitted that the applicant has produced on the record of the trial Court the receipts issued by the Market Contractor of Grampanchayat, Hiwarkhed and by the Agricultural Produce Market Committee to substantiate the claim of the applicant that he has purchased the 7 bullocks. Surprisingly, the learned Magistrate as also the learned Sessions Judge have not dealt with the documentary evidence. Though the non-applicant No. 1 refuted the claim of the applicant regarding ownership in respect of 7 bullocks by alleging that the receipts are bogus and fabricated, the learned A.P.P. has not been able to point out that such charge is levelled against the applicant. As stated above, the applicant is not even shown as accused.
8. In the above facts, I find that the order passed by the learned Magistrate rejecting the application filed by the applicant for interim custody of the bullocks and the order passed by the learned Additional Sessions Judge, are unsustainable. Consequently, the impugned orders are required to be set aside and the application filed by the applicant has to be allowed. Hence, the following order:
"(i) The impugned orders are set aside.
(ii) The non-applicant No. 2 shall hand over the custody of 7 bullocks which were handed over to it pursuant to the order dated 1st April, 2013, to the applicant forthwith.
(iii) The applicant shall execute indemnity bond of Rs. 1,00,000/- (Rs. One Lakh Only) with condition that the applicant shall not sale, dispose or destroy the 7 bullocks till the disposal of the criminal case pending before the learned Magistrate. None of the parties are aware about the status of the proceedings before the Magistrate. The applicant shall also file an undertaking before the learned Magistrate that he will produce seven bullocks as and when required.
(iv) The application is allowed in the above terms.
(v) In the circumstances, the parties to bear their own costs."
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