ORDER
S.S. Parkar, J.
1. Rule. By consent rule is made returnable forthwith. The learnedCounsel for the respondents waive service. Heard the Counsel for the parties at length.
2. The petition challenges the order dated 21st November, 1997, passed by thelearned Metropolitan Magistrate, presiding over the 10th Court, Andheri, Mumbai inCriminal Case No. 654/N/1997 whereby six animals which were detained at SanjayGandhi National Park, Borivali, Mumbai under the previous order dated 29th October,1997 belonging to respondent No. 2, were directed to be returned to the respondentNo. 2 under certain conditions.
3. The brief facts leading to the present petition can be summarised thus:
The respondent No. 2 is the owner of the circus called 'Golden Circus' which is, at present, running its shows at Jogeshwari, Mumbai. The shows commenced at the said place from 25th October, 1997. The petitioner who is an Honorary General Secretary of Society or a trust called 'Ahimsa' a registered Public Charitable Trust and is recognised as Animal Welfare Officer by the Animal Welfare Board of India, had visited the said circus and witnessed the performance on 25th October, 1997 when she suspected the lionesses who were performing at the said circus to be blind and she also witnessed the torture being caused to the animals in order to activate the lionesses for performing at the said circus. She, therefore, filed complaint to the Jogeshwari Police Station, Mumbai. The police officers also, on her request, accompanied her to the venue of the circus and some of the police officers were deputed to witness the circus when they themselves witnessed the torture being caused to the lionesses by the Trainer and his helpers at the circus. The police, therefore, took cognizance of the offences under the provisions of sections 73 to 75 of the Bombay Police Act and filed chargesheets in the Metropolitan Magistrate, 10th Court, Andheri, Mumbai. The complaint dated 25-10-1997 filed by the petitioner with the Jogeshwari Police Station is annexed to this petitioner as Exhibit 'A' wherein it is stated that the infirm lioness was made to perform and as she could not obey due to infirm health she was beaten, goaded and tied with a rope picked up by her tail and then put in her cage. The said lioness had been poked by three men at different places simultaneously and one lioness had collapsed during the performance. Another lioness was repeatedly beaten and goaded into her abdomen with sharp instruments by two people at a time. One of these persons being the trainer and another a helper. She also complained that she saw those animals being whipped and poked with sticks during the performance. She also filed application dated 27-10-97 before the learned Metropolitan Magistrate's Court to pass appropriate order to prevent the animals from being subjected to cruelty. Pursuant to the said application, the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai called for the report of the Veterinary doctor about the health of the animals on 28-10-97. The Veterinary doctor Mr. Pendkar submitted his report on 29-10-97. After being satisfied about the allegations made by the complainant and after considering the report of the Veterinary doctor the learned Magistrate passed order dated 29-10-97 directing the Jogeshwari Police Station to take custody of the six lionesses from the Golden Circus and keep them in the custody of Superintendent, Sanjay Gandhi National Park. The said order was challenged by the circus owner by filing Criminal Revision Application No. 430 of 1997 before the Sessions Court, Greater Bombay. The learned Sessions Judge, after hearing both the sides, by his order dated 11-11-1997, remanded the matter to the trial Court for rehearing and passing necessary orders as in his opinion the earlier order was misconceived and was not passed in accordance with the provisions of law. In the meantime, as per the order dated 29-10-1997, the six lionesses with whom we are concerned were handed over to the custody of the Superintendent, Sanjay Gandhi National Park on 30-10-1997. Two more medical reports were produced about the health of the said lionesses before the trial Court. The trial Court thereafter heard the matter and by its order dated 21-11-1997 directed the return of the said six lionesses to respondent No. 2 on certain conditions. Those conditions were that: the respondent No. 2 was to give undertaking that he would prepare cages of dimension of 10' x 10' x 6' for each animal within 45 days from the date of the order. Another condition was that the Senior Police Inspector of Jogeshwari Police Station should verify the implementation of the undertaking within stipulated time and report the compliance. The Veterinary Officer of Jogeshwari area was asked to check those animals periodically until further orders and forward the report regarding their condition and health. It is this order which is challenged in this writ petition by the petitioner who is concerned essentially to prevent the cruelty to the animals.
4. The learned Counsel Ms. Iyer appearing on behalf of the petitioner contended that in the face of the evidence of cruelly being caused to the animals at the circus and the medical reports which are before the Court, the learned Metropolitan Magistrate ought not to have directed the return of the custody of the animals to the owner, as according to her the animals are required by the circus owner for performance and until the day their custody was handed over to the National Park Authority at Borivali their services were being utilised for performance at the circus inspite of the fact that five out of the six lionesses were blind and infirm and the sixth one was pregnant.
5. It is not in dispute that these animals were examined by three Veterinarydoctors, one Dr. Batwe at the instance of the petitioner - another, Dr. Pendkar whohad examined the animals and submitted the report pursuant to the direction of thelearned Magistrate and third one Dr. Barhate who is the Veterinary doctor attached toSanjay Gandhi National Park, Borivali, Mumbai. These six animals who are the subject matter of this litigation are named as (1) Basanti, (2) Lily, (3) Gauri, (4) Tina, (5)Ganga and (6) Sita. As regards lioness by name Basanti, all the three doctors agreethat she is totally blind as she is not able to see by either of her eyes. One of thedoctors i.e. Dr. Barhate has reported that she has developed corneal opacity in lefteye and cataract in right eye and there are no reflexes in her eyes. The secondlioness by name Lily is also reported to be atleast partially blind and is very weak withbony skeleton and was unable to stand properly. The third lioness by name Gauri isthough reported to be healthy, is suspected to be pregnant. The fourth lioness byname Tina is having cataract in one eye and blind by the other. The fifth lioness byname Ganga is also reported by all the doctors to be blind having infirmity in both theeyes. The sixth lioness by name Sita is also reported to be blind having cataract in lefteye and corneal opacity in the right eye and is dehydrated, very weak with bonyskeleton. The Veterinary doctor Barhate attached to Sanjay Gandhi National Parkhas reported that all these six animals are unfit to work in circus.
6. Ms. Iyer also took me through the impugned order dated 21-11-1997 and contended that the learned Metropolitan Magistrate was wrong when she observed that section 35(2) of the Act did not empower the Magistrate to keep the animals in the National Park Zoo which is not an infirmary. It is further contended that the learned Magistrate was also wrong to observe that the record consisted only of printed proforma of chargesheets and only the names of the witnesses have been cited without recording their statements and therefore there was no evidence to show that there was cruelty.
7. I was taken through the two chargesheets filed by the police dated 25-10-1997 and 26-10-1997. It is not disputed that these are summary proceedings and that the police could take cognizance of these offence under section 73 of the Bombay Police Act which seems to have been done in the present case. Moreover, in the summary proceedings it is not necessary to record the statements of the witnesses. The police had, with them, the complaint of the petitioner dated 25-10-97 and pursuant to the said complaint some police constables were deputed to witness the circus and they had also seen the animals being tortured during the performance at the circus.
8. Mr. Gupte the learned Counsel appearing on behalf of respondent No. 2 i.e. owner of the circus supported the order of the learned Magistrate and contended that first of all there is no infirmary in India and therefore the custody could not be given to the Sanjay Gandhi National Park which is admittedly not an infirmary as contemplated under section 35 of the Prevention of Cruelty to Animals Act, 1960. He pointed out that the learned Magistrate has directed the return of the custody of the animals to the owner after putting conditions and if the conditions imposed by the learned Magistrate are considered insufficient, this Court may impose further conditions. He further contended that although the police can take cognizance under section 73 of the Bombay Police Act for the offences which are registered against them, the police, according to him, did not visit the circus and they had acted only on the complaint of the petitioner and, therefore, section 35(2) of the Act of 1960 was not applicable. He further submitted that if the police had taken cognizance they would have, under section 74 of the Bombay Police Act handed over the custody to the infirmary or could have taken the animal to a Veterinary Officer.
9. It is relevant to mention that the Prevention of Cruelty to the Animals Act1960 has been enacted with an object to prevent the infliction of pain or suffering toanimals. Section 11 of the said Act is a penal provision which provides for punishmentin different contingencies if any person causes torture to the animals in any of theways which are mentioned in the different clauses of sub-section (i) of section 11 ofthe Act. In the chargesheet the police have applied Clauses (a), (b) and (e) whichprovide that any person either beats, tortures or otherwise subjects the animal tounnecessary pain or suffering or employs the animals in any work or labour whichdue to its age or infirmity is unfit to employ of keeps or confines any animal in a cagewhich is not of sufficient height, length and breadth to keep the animal with reasonable opportunity for movement then such acts are attended with punishment by imposition of fine on the person who contravenes these provisions. Section 35(2) of theAct empowers the Magistrate before whom the prosecution for offences under thesaid Act has been instituted to hand over the animals, which are subjected to anycruelty, to an infirmary. The sub-section (2) of section 35 reads as follows:
Section 35(2) 'The Magistrate before whom a prosecution for an offence against this act has been instituted may direct that the animals concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole, or if the Veterinary Officer in charge of the area in which the animal is found as such or Veterinary Officer as may be authorised in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.' (Underlining supplied)
10. Mr. Gupte contended that the power under sub-section (2) of section 35 cannot be exercised unless there is a prosecution for an offence against this Act as referred to earlier. In my view it cannot be gainsaid that the police have taken cognizance and lodged the prosecution which is pending before the learned Magistrate. Simply because the earlier order was passed on 29-10-97 at the instance of and on the application of the petitioner, which is numbered as Notice No. 654/N/97 cannot be said to be outside the purview of sub-section (2) of section 35 as contended by Mr. Gupte. The chargesheet was already filed by the police before the trial Court. May be the police on their own did not move in the matter and they took action when petitioner complained to them. Moreover reference to Veterinary Officer in charge of the area' or 'Veterinary Officer as may be authorised' in section 35(2) would not render the custody of Sanjay Gandhi National Park illegal though it is not an infirmary.
11. From the reports of the three Veterinary doctors which are annexed to this petition, it is clear that lionesses, because of their blindness, infirmity and ill-health, are not in a position to perform at the circus. Mr. Gupte contends that the respondent No. 2, as a owner of these animals , who tamed and looked after them is not enemy of these animals and is more interested in their welfare and therefore custody was rightly given to the respondent No. 2 after putting the conditions. But the facts as they stand, there is primes facie evidence that these very animals were not only serviced for performance at the circus shows on 25th and 26th October, 1997 though physically and medically unfit but they were also tortured in order to activate them to perform at the circus. If the respondent No. 2 had felt any concern about these animals he would not have employed them to perform at the circus in the present condition of their health. Five out of the six animals are blind to such an extent that they are not in a position to perform at the circus and it would be hazardous to utilize the services of the pregnant lioness for the performance at the circus. The medical reports show that they need treatment and after they were handed over to the Sanjay Gandhi National Park they are being given adequate diet and also necessary vitamin's food. It was contended on behalf of the petitioner that only one lioness has reached its normal age of 25 and others are younger and there was no reason for them to develop cataract in their eyes or have weak eyesight at the ages between 10 to 18 years and the same must be due to lack of adequate diet given to these lionesses and vitamin 'A' deficiency in their food and their day in and day out exposure to flood lights. It is pointed out that the trial of the cases against respondent No. 2 are posted to 19th December, 1997. The interim order was passed on 29-10-97 by which these six animals were handed over to the Superintendent, Sanjay Gandhi National Park and since then they are being treated and looked after by the said authority.
12. It is true, as contended by Mr. Gupte, that the Sanjay Gandhi National Park is not having cages to accommodate these lionesses and they are being kept in the same cages which were provided by respondent No. 2 who is the owner of the circus. Mr. Gupte states that pursuant to the impugned order passed by the learned Magistrate, the respondent No. 2 circus owner has started preparing the cages of larger sizes as is specified in the impugned order dated 21-11-1997 and they will be ready within next two weeks. Mr. Bagwe, the learned A.P.P., conceded that the park did not have cages of the bigger size to accommodate these animals. He, however, states that they are being treated by giving proper medicine and also the fresh food as per their requirement and they have shown improvement in their health condition.
13. In my view the petitioner has rightly expressed the fear that if these animals are handed back to the respondent No. 2, the said animals may be again used for the performance at the circus. Moreover, as indicated on behalf of the respondent No. 2 by Mr. Gupte, the circus is likely to be moved to some other place outside this State in the first week of December 1997 and in that case it would be difficult to have check over the animal.
14. The dispute raised by Mr. Gupte that the Sanjay Gandhi National Park is not an infirmary as contemplated under sub-section (2) of section 35 of the Act of 1960 and so the custody of Sanjay Gandhi National Park is illegal is without substance. In my view, in the absence of such infirmary, keeping the object of the enactment in mind, it would not be wrong to keep the custody of the animals with the Sanjay Gandhi National Park who are having their regular Veterinary doctors and who are looking after 22 lions in their Safari, all of whom are stated to be of good health. Even subsection (2) of section 35 of the Act as indicated earlier makes a reference to the Veterinary Officer and, therefore, the interim custody kept with the said National Park, cannot be said to be in contravention of the provisions of the Act. Moreover, section 74 of the Bombay Police Act also allows the police officer to take the animals to a Veterinary Officer, who may take the animals to an infirmary appointed under section 35 of the Act of 1960. In the absence of infirmary which is admittedly not in existence anywhere in India, the custody could be given to a Veterinary Officer such as the one who is incharge of the Sanjay Gandhi National Park. The animals are not yet fully recovered and hence they cannot be returned to the custody of the respondent No. 2 unless and until they are fit to perform their usual work or are otherwise fit for discharge as provided under section 35(2) of the Act of 1960. The medical reports show that the animals are unfit to perform their usual work and not fit for discharge. Thus I am persuaded that the impugned order is passed in violation of the mandate of section 35(2) of the Prevention of Cruelty to Animals Act, 1960.
15. Hence, I allow this petition and make the rule absolute in term of prayer Clause (a) with directions that the six animals whose custody has been handed over to the Sanjay Gandhi National Park, Borivali, Mumbai by the order of 29-10-1997 shall continue to be in their custody until the Veterinary Officer attached to the Sanjay Gandhi National Park, Borivali, Mumbai certifies that all or any of the animals are fit to perform their usual work or are otherwise fit for discharge.
16. The trial of the aforesaid cases are expedited and the trial Court is directed to fix the matter for trial on 10th December, 1997 and as far as possible complete the trial on or before 24-12-1997. Both the sides agree to attend the said Court on 10th December, 1997.
17. Certified copy is expedited. The writ is expedited which should be sent directly to the concerned Court.
18. Petition allowed.