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Wadhwan Mahajan Panjarapol Thro … vs State Of Gujarat on 2 August, 2021

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R/CR.RA/318/2021 CAV ORDER DATED: 02/08/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 318 of 2021

WADHWAN MAHAJAN PANJARAPOL THRO PARESH MANILAL SHAH
Versus
STATE OF GUJARAT

Appearance:

MR MEET A SHAH(9933) for the Applicant(s) No. 1

MR JK SHAH ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
SAJID Y KARIYANIYA(9619) for the Respondent(s) No. 2

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 02/08/2021

CAV ORDER

1. By way of this criminal revision application under Section 397 read
with
section 401 of Criminal Procedure Code, the following reliefs are
sought by the petitioner:-

“9(A) This Hon’ble Court may be pleased to admit and allow this
application.

(B) This Hon’ble Court may be please to quash and set aside the
judgment and order dated 06.02.2021 passed by the learned 4 th
Additional Sessions Judge, Surendranagar in Criminal Revision
Application No. 38 of 2020;

(C ) This Hon’ble Court may be pleased to direct the respondents to
pay costs towards maintenance and treatment to the applicant as per
the provisions of the Prevention of Cruelty to Animals (Care and
Maintenance of Case Property Animals) Rules, 2017 read with the
Circular dated 03.05.2018 issued by the Animal Welfare Board of
India.

(D) Pending hearing and final disposal of this application, this
Hon’ble Court may be pleased to stay the implementation, operation
and execution of the order dated 06.02.2021 passed by the learned

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4th Additional Sessions Judge, Surendranagar in Criminal Revision
Application No. 38 of 2020;

(E) Any other and further relief/s as deemed just and proper looking
to the facts of this case may kindly be granted in favour of the
applicant in the interest of justice.”

2. The case of the petitioner in brief is that the Vice President of one
Trust named as “Vardhaman Jivdaya Parivar Charitable Trust”, Mr. Raghu
Sindhav received an information that one truck bearing no. GJ-13-V-8210
is in transit, whereby in an illegal manner and in utter violation of
applicable laws is transporting animals from Viramgam to Surendranagar.
Accordingly, the complainant and his colleagues tried to intercept the
truck, but the driver of the truck did not stopped it and upon further
interception, the truck was stopped at Wadhwan and on inspection has
found that the top of the truck was sealed with “tadpatri” and some 27
male buffaloes aged about 1.5.- 2 years were being being transported in a
very cruel and gruesome manner, as they were tied up with tight ropes and
there was no space for movement, no facility of food, water and “tadpatri”
was covered in such a manner that no proper air circulation was made
available. On further inquiry from the driver, it was informed that animals
were loaded by respondent no. 2 herein from Mr. Akram A.K.A. Iqbal
Habibbhai Kureshi, of Viramgam who is indulging in such kind of
activity. Since animals were transported in such a cruel manner, an FIR
being C.R. No. 11211056200556 of 2020 was lodged before
Surendranagar “B” Division Police Station for offences punishable under
Sections 11(1) (d), 11(1) (e) and 11(1) (h) of the Prevention of Cruelty to
Animals Act, 1960. Subsequently, the Police authority made an
application dated 26.09.2020 before the learned Judicial Magistrate First
Class, Wadhwan to pass appropriate order to keep 27 buffaloes in
Panjrapol i.e. the present petitioner named as Shri Wadhwan Mahajan
Panjrapol which is a Trust registered under the Bombay Public Trust Act.
The said application was given on the premise that there is no facility to

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keep such live stock mudammal at the concerned Police Station and there
is no facility to meet with the requirement of food, water, shelter, sanitary
and other necessities of such buffaloes and as such, an order came to be
passed directing to keep such buffaloes at a place of the petitioner – Shri
Wadhwan Mahajan Panjrapole.

2.1. Pursuant to such order passed by the learned Magistrate, custody of
the buffaloes were kept at the premise of the Panjrapole. Thereafter, on
07.10.2020, respondent no. 2 moved an application before the learned
Judicial Magistrate, First Class, Wadhwan seeking release of such
buffaloes by way of Mudammal Application No. 26 of 2020, whereby,
respondent no. 2 asserted before the learned Magistrate that he is engaged
in the business of Animal Husbandry and selling of animals and has
asserted his ownership right over the buffaloes by way of filing an affidavit
related to sale. To this application, reply came to be filed by the petitioner
and after hearing the parties to the proceedings, the learned Magistrate,
was pleased to reject the application submitted by respondent no. 2 vide
order dated 07.11.2020.

2.2. Against this order, the present respondent no.2 preferred Revision
Application No. 38 of 2020 before the learned Additional Sessions Judge,
Surendranagar which came up for consideration before the 4 th Additional
Sessions Judge, who after hearing parties to the proceedings allowed the
said Revision Application vide order dated 06.02.2021 and it is this order
passed by the learned 4th Additional Sessions Judge, Surendranagar is
made the subject matter of present Criminal Revision Application before
this Court.

3. Pursuant to the notice issued by the co-ordinate Bench of this Court
on 07.06.2021, Mr. Sajid Kariyani has appeared on behalf of respondent
no. 2 and the hearing took place of the present proceedings. Learned

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Advocate Mr. Meet Shah appearing on behalf of the petitioner has
submitted that upon inspection of the vehicle in question it was
categorically found that the buffaloes were tied up in such a manner that
there was no room for any movement in truck. Apart from that the truck
was covered with “tadpatri” in such a manner that there was hardly any air
circulation and further as per the requirement of relevant rules, the
buffaloes were not kept in proper condition. It has been submitted that
when the interception took place of the truck, it was found that they were
tied in such a fit manner that there was a scar on the legs and on account of
that infection has also taken place and they were to be given immediate
treatment and some four buffaloes had died on account of such a situation
in which there were kept. At present there are 23 such buffaloes in living
condition to which the present petitioner – Trust is taking care of. This
fact has been taken into consideration by the learned Additional Judicial
Magistrate, Wadhwan and after taking into consideration all these
materials, was pleased to reject the request of respondent no. 2 and
unfortunately, according to the learned advocate for the petitioner, at the
revisional stage the learned Additional Sessions Judge has not taken into
consideration such a situation of the buffaloes in which condition they
were transporting and also not taken into consideration the relevant rules
applicable, nor has examined any material and by cryptic order, the
revision application came to be allowed and as such, the learned advocate
for the petitioner has submitted that there is a gross error committed by
the learned Additional Sessions Judge in passing the impugned order.

4. Learned advocate Mr. Meet Shah has further submitted that the
learned Sessions Judge did not consider the relevant rules which are
applicable and though specifically pointed out, the same have not been
dealt with in its proper perspective at all. On the contrary, no sufficient fair
opportunity was given to the petitioner to represent the case and by a brief
order, by imposing some conditions, the order is passed which is under

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challenge before this Court. Learned advocate Mr. Shah has submitted
that under the relevant Rules which are known as Prevention of Cruelty to
Animals (Registration of Cattle Premises) Rules, 1978, a specific
procedure is prescribed for seeking registration of the premise. This has
not been examined by the court below and apart from that, the learned
advocate for the petitioner has referred to Rule 47, which has specifically
provided that a valid certificate by a qualified veterinary surgeon is
required to be obtained before transporting the animals that they are in a
fit condition to travel either by rail or road and are not suffering from any
infection or like disease and they have been properly vaccinated against
the rinderpest or any other infectious or contagious diseases and each
consignment shall accompany such valid certificate from a qualified
veterinary surgeon, which undisputedly, respondent o. 2 was not holding.
The said certificate will have to be in a specific form prescribed in
Schedule-E. In addition to this, even for the purpose of prima facie
establishing the ownership, every set of animals as per Village Form No.
15, there must be a document attached to the same and therefore, here in
absence of such Village Form the ownership right which is tried to be
pressed by respondent no. 2 is not appearing to be genuine. Further, by
referring to certain other Rules contained under Chapter no. IV of the
Transport of Animals, 1978 of it has been contended that the Rules have
been prescribed as to how and in what manner such cattle were to be
transported in a vehicle. By referring to Rule 51 onward, an emphasis is
made on Rule 54 which prescribes adequate water arrangement, sufficient
feed and fodder with adequate reserve during journey and adequate
ventilation, which completely were missing at the time when the vehicle
was inspected and such condition was not taken into consideration while
rejecting the application for respondent no. 2. These aspects though were
pointed out, the learned Sessions Judge has not dealt with the same and
without assigning any cogent reasons, the revision application came to be
allowed. In addition to this, learned advocate Mr. Shah has further invited

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attention of this Court, to Rule 96 of Rules, which is requiring of valid
certificate to be procured before transporting such animals. The said Rule
96 is contained in Chapter-IX which has clearly spelt out that in absence
of such certificate, the carrier shall refuse to accept the consignment for
transporting. No such certificate was available either with the driver or the
owner of the vehicle.

4.1. Further, learned advocate Mr. Shah has submitted that by
transporting in such a manner, respondent no. 2 has not only violated the
provisions of relevant law about cruelty to prevailing Act and Rules
framed thereunder, but also has violated the Motor Vehicle Rules as well.
By referring to
Section 125(E) of such Motor Vehicle Rules, learned
advocate Mr. Shah has submitted that even this has also been violated. All
these issues have not been taken note of by the learned Sessions Judge
and, therefore, the order is suffering from vice of non application of mind.
Learned advocate Mr. Shah has further submitted that the order so passed
by the learned Magistrate was just and proper, but still the revisional
proceedings have been entertained in absence of any perversity or material
irregularity and as such on this count also the impugned order requires to
be set aside. Learned advocate Mr. Shah has further submitted that almost
in similar set of circumstances, even recently, while dealing with such
eventuality in the case of Raghuram Sharma Anr. v. C. Thulsi Anr.,
rendered in Criminal Appeal No. 230 of 2020. The Hon’ble Supreme
Court while dealing with Criminal Appeal No.230 of 2020, has also
observed certain proposition and keeping in view such observation also,
the order is unsustainable and lastly by submitting a contention from the
First Information Report which is attached to page 30, it has been
contended that there is a gross violation of the relevant Rules as stated
above by respondent no. 2 while transporting the animals and as such, also
the order deserves to be set aside.

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4.2. To substantiate a further stand of the petitioner, learned advocate
Mr. Shah has drawn attention of this Court to the communication dated
23.10.2020 reflecting on page 39 indicating the position and status of the
animals which are seized and this communication is clearly indicating that
how and in what manner these buffaloes of tender age ranging from 1.5 –
2 years were being transported and, therefore, this gross act on the part of
respondent no. 2 could not have been overlooked while passing the
impugned order.

4.3. Learned advocate Mr. Shah has submitted that apart from quashing
and setting aside the impugned order passed by the learned Additional
Sessions Judge, a further prayer is also required to be considered with
regard to the payment of costs over maintenance and treatment of such
animals which are kept by the petitioner pursuant to the order of the
competent court and for that purpose, learned advocate Mr. Shah has
relied upon a Notification dated 23.05.2017 which is placed on page 45 of
the petition compilation. Learned advocate Mr. Shah has submitted that
these buffaloes are cattle defined under Rules of 2017 which are known as
the Prevention of Cruelty to Animals (Care and Maintenance of Case
Property Animals) Rules, 2017 and thereby has contended that while
transporting such kind of buffaloes, these Rules are required to be
observed strictly. Rule 3 is dealing with custody of animals pending
litigation which is requiring as to how and in what manner, the custody of
animals, pending litigation is to be handed over. It is submitted that in
view of this, the petitioner being Panjrapole, the Court has divested the
custody to the petitioner since at Police Station, there was no arrangement
for keeping the live stock, but simply because the custody is handed over
to the petitioner, respondent no.2 cannot be allowed to be absolved from
meeting with the costs factor. Rule 4 is dealing with the Cost of care and
keeping of animals pending litigation. The said rule reads as under :-

“Rule 4. Cost of care and keeping of animal pending litigation.-

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(1) The State Board shall within three months from the date of
commencement of these rules and thereafter on the 1 st day of April,
every year, specify the cost of transport, maintenance and treatment
per day for every species of animal that is commonly seized in the
State.

(2) The magistrate shall use the rates specified by the State Board as
the minimum specified rates for transport, maintenance and treatment
of the seized animals under sub-section(4) of
Section 35 of the Act.

(3) In case, the animals under consideration is not on the rate sheet
specified by the State Board, the magistrate shall fix the cost of
transport, treatment and maintenance of the animal based on the
input provided by the jurisdictional veterinary officer.”

4.4. Rule 5 of Rules 2017 is also requiring some Execution of bond,
which rule since relevant is reproduced hereunder :-

“Rule 5. Execution of bond.-(1) The magistrate when handing over
the custody of animal to an infirmary, pinjrapole, SPCA, Animal
Welfare Organisation or Gaushala shall determine an amount which
is sufficient to cover all reasonable cost incurred and anticipated to be
incurred for transport, maintenance and treatment of the animal
based on the input provided by the jurisdictional veterinary officer
and shall direct the accused and the owner to execute a bond of the
determined value with sureties within three days and if the accused
and owner do not execute the bond, the animal shall be forfeited to
infirmary, pinjrapole, SPCA, Animal Welfare Organisation or
Gaushala.

(2) The infirmary, pinjrapole, SPCA, Animal Welfare Organisation
or Gaushala having the custody of the animal may draw on from the
bond on al fortnightly basis the actual reasonable cost incurred in
caring for the animal from the date it received custody till the date of
final disposal of the animal.

(3) The magistrate shall call for the accused and the owner to execute
additional bond with sureties once eighty per cent. of the initial bond
amount has been exhausted as cost for caring for the animal.

(4) Where a vehicle has been involved in an offence, the magistrate
direct that the vehicle be held as a security.

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(5) In case of offence relating to transport of animals, the vehicle
owner, consignor, consignee, transporter, agents and any other
parties involved shall be jointly and severally liable for the cost of
transport, treatment and care of animals.

(6) In cases where a body corporate owns the animal, the Chief
Executive Officer, President or highest-ranking employee of the body
corporate, the body corporate and the accused shall be jointly and
severally liable for the cost of transport, treatment and care of the
animal.

(7) In cases where the Government owns the animal, the Head of the
Department and the accused shall be jointly and severally liable for
the cost of transport, treatment and care of the animal.

(8) If the owner and the accused do not have the means to furnish
the bond, the magistrate shall direct the local authority to undertake
the costs involved and recover the same as arrears of land revenue.”

4.5. By referring to Rule 8 of Rules 2017, learned advocate Mr. Shah
has submitted that how to deal with the Status of the animals upon disposal
of the litigation is also prescribed. Such Rule is reproduced hereunder and
as such by referring to this provisions from Rules of 2017, published in
Gazette of India, Extra Ordinary, a request is made to consider and grant
the reliefs as prayed for in the present proceedings in form of prayer
9( C). The said Rule 8 reads as under :-

“8. Status of animal upon disposal of litigation.-(1) If the accused
is convicted, or pleads guilty, the magistrate shall deprive him of the
ownership of Weal and forfeit the seized animal to the infirmary,
pinjrapole, SPCA, Animal Welfare Organisation or other disposition.
or Gaushala already having custody for proper adoption or other
disposition.

(2) If the accused is found not guilty of all charges, the seized animal
shall be returned to the accused or owner of the animal and the
unused portion of any bond amount executed shall be returned to the
person who executed the bond. ”

4.6. Learned advocate Mr. Shah has submitted that even the Animal

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Welfare Board of India established under the Ministry of Environment,
Forest and Climate Change, Government of India has also taken care for
this eventuality of maintenance of animals seized, in violation of the Act
or the Rules. By referring to communication dated 03.05.2018, reflecting
on page 49A, typed version, it has been submitted that the Central
Government has notified Prevention of Cruelty to Animals (Marketing and
Care of Case Property) Rules, 2017 for the maintenance of Animals
seized in violation of the Act and Rules and it is noticed that the Rules are
not implemented in true letter and spirit. The rates are prescribed as to
how suggested minimum rates to be paid. By referring to a chart contained
in the said communication which has been submitted by learned advocate
Mr. Shah, if on the basis of this rate which has been suggested by the
Animal Welfare Board of India, a calculation is made the amount
outstanding to be paid by respondent no. 2 is Rs.8,59,250/- which is so far
not paid and, therefore, respondent no. 2 is an under obligation to pay the
said costs as well. Learned advocate Mr. Shah has submitted that it has
been propounded by Hon’ble Supreme Court that rigor of
Article 21 is not
only extended to human, but it is also applicable to Animals as well and,
therefore, by referring to a decision of the Hon’ble Supreme Court, in the
case of
Animal Welfare Board of India v. A. Nagaraja Ors., reported
in (2014) 7 SCC 547, a contention is raised that such proposition ought not
to have been ignored by the court below. It has further been submitted that
even this Court while dealing in the case of Mahisagar Mataji Samaj
Seva Trust v. State of Gujarat reported in (2011) 3 GLH 762 has held
that cattle are like human beings and they possess life in them and even an
animal has a right to say that its liberty cannot be deprived except in
accordance with law. Such proposition is laid down in the case of
Mahisagar Mataji Seva Trust (supra). In addition to this the learned
advocate for the petitioner has raised few specific contentions in the
petition itself and by referring to grounds (h), (i), (o), (q), (r) and (s) has
submitted that keeping in view all such specific assertions, not only the

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order passed by the learned Additional Sessions Judge, deserves to be
quashed and set aside, but as a consequence of it, the relief as sought in
the petition also deserves to be granted. It has been assertively submitted
that in view of the contradiction in statements of the driver as well as of
Mr. Saiyed Sajat Ayubali, there is a clear impression which suggested of
further cruelty being inflicted upon the animals by respondent no. 2 and
these animals were certainly transported for slaughter. This fact is clearly
emerging from the record and the learned Additional Sessions Judge ought
not to have unnoticed the said hidden agenda of respondent no.2 while
passing the impugned order. In any case, according to the learned advocate
for the petitioner, the reasons which are assigned and the conditions which
are imposed upon are not at all cogent enough to sustain the order under
challenge and, therefore, the present revision application deserves to be
allowed by granting the reliefs as prayed for in the application.

4.7. With a view to substantiate his stand, learned advocate Mr. Shah
has pressed into service the following decisions:-

“1. In the case of Animals Welfare Board of India v. A. Nagaraja
Ors., reported in (2014) 7 SCC 547.

2. In the case of Laxmi Narain Modi v. Union of India Ors.,
reported in (2013) 10 SCC 227.

3. In the case of Shri Bhavnagar Panjrapole Through Manager
Brijesh Himatlal Shah v. State of Gujarat Anr., rendered in
Criminal Revision Application No. 601 of 2013.

4.In the case of Smandkhan Meerakhan Ors. v. State of Gujarat
Ors., reported in (2011) 3 GLH 762.

5. In the case of Raghuram Sharma Anr., v. C. Thulsi Anr.,
rendered in Criminal Appeal No. 230 of 2020 (Hon’ble Supreme
Court Mustakeem Ors.) Criminal Appeal No. 283 of 2002/

6. Abdulkadar Mohamad Azam Sheikh v. State of Gujarat Ors.,
rendered in Special Criminal Application No. 1635 of 2010.

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7. Bhartiya Govansh Rakshan Sanvardhahan Parishad v. The State
of Maharashtra Ors., rendered in Criminal Application No. 1054
of 2017 (Hon’ble Bombay High Court).”

5. As against this, Mr. Sajid Kariyaniya, learned advocate appearing
for respondent no. 2 has raised three fold contentions. Firstly, that the
present criminal revision application tanamounts to be a second revision is
not maintainable by virtue of
Section 397(3) of the Code of Criminal
Procedure and, therefore, no order be passed in the present proceedings.
Apart from that learned advocate Mr. Sajid has submitted that cruelty is
nothing but a mere presumption of the petitioner and there is no iota of
material available on record to presume cruelty further to be executed
upon the buffaloes and there is no past complaint against respondent no. 2
which would allow such presumption to be further assumed and as such,
the order passed by the learned Additional Sessions Judge is just and
proper, the same cannot be interfered with in a revisional scope which is
otherwise limited. In addition to this, a third contention which has been
raised is that even Rules of 2017 which are tried to be pressed into service
are at present pending for consideration before the Hon’ble Supreme
Court and therefore, so long as the proceedings are pending, these Rules
of 2017 cannot be said to have attain finality and as such, violation
thereof, may not be of any significance. Hence, learned advocate Mr.
Sajid has requested to dismiss the revision application. Apart from that it
has been contended that enough opportunity is given to the petitioner by
the learned Additional Sessions Judge and the petitioner was well
represented by the Manger who remained present and as such, there is
hardly any substance in the submission about no appropriate opportunity
was given. No other submissions are made.

6. As against this, Mr. J. K. Shah, learned Additional Public
Prosecutor appearing for the respondent – State has submitted that from
the bare reading of the impugned order, it clearly transpires that while

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passing the impugned order, the learned Sessions Judge has not taken into
consideration the relevant Rules of 2017 which are applicable and
furthermore, the position in which the animals were kept and tied up and
covered in the truck, were clearly suggesting that there was a definite
intention of cruelty to such buffaloes in future and for that very purpose
only they were being transported and such presumption is not ill founded.
Additionally, learned Additional Public Prosecutor Mr. Shah has
submitted that the revision is barred, provided such revision is by the very
same person who filed the revision application before the Sessions court,
but so far as the present petitioner is concerned, the said bar is not
applicable and as such, the order appears to be not just and proper and not
in consonance of the relevant object of the Rules and the material on
record as well and as such, has left it to the discretion of the Court.

7. After the submission of learned advocate appearing for respondent
no. 2, learned advocate Mr. Shah in rejoinder has submitted that this very
issue of maintainability of second revision application is dealt with by the
co-ordinate Bench of this Court in Criminal Revision Application No. 584
of 2020 decided on 12.03.2021 and as such, such bar of
Section 397(3) of
the Code of Criminal Procedure may not be applicable to the petitioner in
this background of facts. This submission of learned advocate Mr. Shah
for the petitioner has been disputed by learned advocate Mr. Sajid
appearing for respondent no. 2 and has submitted that apart from this,
whether second revision application at the instance of the petitioner is
maintainable or not, but since the petitioner was very much party to the
court below, and as such also the bar contained under
Section 397(3) of
the Code of Criminal Procedure would be attracted and hence has
requested to dismiss the revision application. No other submissions have
been made by the either side.

8. Having heard the learned advocates appearing for the respective

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parties and having gone the material on record and having perused the
order impugned in the revision application, it prima facie appears to this
Court that the contentions which have been raised by the petitioner
appears to have not been dealt with and obviously, the reasons qua them
are missing in the order. It has been stated by the learned advocate for the
petitioner that the request which was made for seeking maintaining cost of
these buffaloes, an attention was also drawn to the relevant rules which are
submitted in the present proceedings, but the court below has not dealt
with the same. In addition thereto, there is a certificate produced at page
39 dated 23.10.2020 is also, according to the learned advocate for the
petitioner forming part of the proceedings before the court below, the
learned Judge has not properly construed the same and without
considering the relevant material it has been assumed that the charge sheet
documents are not indicating any such possibility of cruelty to the animals
which are seized and simultaneously, if this conclusion is compared with
the order passed by the learned Additional Judicial Magistrate, Wadhwan,
is clearly indicating that the panchnama was also produced on record and
there was a categorical reply submitted by the panjrapole indicating the
status and the infection of buffaloes and also has been stated before the
Court that the four buffaloes died during the process. The learned
Magistrate has also considered the earlier decisions delivered by this Court
in the case of
Manager, Panjrapole, Deodar v. Chakaram Moraji Nat
Anr., and
Gitaben B. Shah v. State of Gujarat reported in 1997 (2) GLR
1321 and after considering the same has come to the conclusion that
possibility cannot be ruled out of torture and, therefore, overall
consideration of the material on record is suggesting that the order passed
by the learned 4th Additional Sessions Judge is not in consonance with the
relevant record and Rules of 2017 which are stated to have been drawn
attention, have also not been dealt with and further there is non dealing
with the request of maintenance costs to be paid to the petitioner. If this
be so, the ultimate reasons which has been assigned, cannot be said to be

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just and proper. Non dealing of the contentions of the material is also the
relevant consideration for testing the decision making process.

8.1. Categorical grounds have been mentioned in the present
proceedings that though the Rules have been pointed out, the learned
Sessions Judge did not examined at all and relied upon the decision which
is prior to framing of Rules. So the reasons assigned are perverse to the
record in considered opinion of this Court.

8.2. In addition to this, contradictory statements which are pointed out
before the Court also deserves consideration with respect to the ownership
issue of seized buffaloes and, therefore, on material issue, it appears that
no attention is paid while coming to the conclusion in handing over the
buffaloes to respondent no. 2. Again the relevant material namely the
statement of manager, the rates which are prescribed by the Animal
Welfare Board of India as well as the relevant Rules which are framed by
virtue of Notification dated 23.05.2017 also appears to have not been
examined at all as to whether the same will be given due consideration or
not. In addition thereto, as stated above, central issue of status of the
animals which have been pointed out before the learned Additional
Judicial Magistrate in order dated 23.10.2020 also not been dealt with in
its proper perspective. So the overall reasons which are assigned by the
learned Sessions Judge are not substantiating with the material on record
and as such, in the opinion of this Court, this is a fit case for remanding
the matter back to the learned Additional Sessions Judge for
reconsideration of the issue.

8.3. Since the Court is of the opinion that the matter requires to be
remanded to the learned Additional Sessions Judge, this Court has refrain
itself from expressing any opinion on the rival contentions raised by the
learned advocates for the parties to the proceedings, but the Court is of the

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opinion that the issue related to maintainability of second revision is not
possible to be accepted of learned advocate representing respondent no. 2
It appears to this Court, that at the instance of the present petitioner, the
revision application is the first revision and as such the objection
contained in
Section 397(3) of the Code of Criminal Procedure would not
apply. This view has been substantiated by the co-ordinate Bench of this
Court in the case of
Rajkot Mahajan Panjrapol Through Bhaveshbhai
Naranbhai Jaullu v. State of Gujarat rendered in Criminal Revision
Application No. 584 of 2020 dated 12.03.2021 and, therefore, in the
considered opinion of this Court, the objection raised by the learned
counsel about the maintainability is not tenable and as such, on overall
appreciation of material on record, the Court has come to the conclusion
that the case is made out by the petitioner for remanding the proceedings
back for fresh consideration.

9. While coming to this conclusion, the Court is of the clear opinion
that the no adequate reasons are assigned nor the contentions have been
dealt with and, therefore, the decision making process is not germane to
the law. At this stage, while coming to the conclusion, the Court is
mindful of the proposition of the law laid down by the Hon’ble Supreme
Court in the case of
Kushuma Devi v. Sheopati Devi (Dead) and Ors.,
reported in (2019) 5 SCC 744, in which it was observed that non
consideration of submissions urged and material on record is undesirable.
The relevant observations contained in para 7 and 8 are quoted
hereunder :-

“7. The need to remand the case to the High Court has occasioned
because from the perusal of the impugned order dated 27.07.2012
quoted above, we find that it is an unreasoned order. In other words,
the High Court neither discussed the issues arising the case, nor dealt
with any of the submissions urged by the parties and nor assigned
any reason as to why it has dismissed the writ petition.

8. This Court has consistently laid down that every judicial or/and

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quasi−judicial order passed by the Court/Tribunal/Authority
concerned, which decides the lis between the parties, must be
supported with the reasons in support of its conclusion. The parties to
the lis and so also the appellate/revisionary Court while examining
the correctness of the order are entitled to know as to on which basis,
a particular conclusion is arrived at in the order. In the absence of
any discussion, the reasons and the findings on the submissions urged,
it is not possible to know as to what led the Court/Tribunal/Authority
for reaching to such conclusion. (See −
State of Maharashtra vs.
Vithal Rao Pritirao Chawan, (1981) 4 SCC 129,
Jawahar Lal Singh
vs. Naresh Singh Ors., (1987) 2 SCC 222,
State of U.P. vs. Battan
Ors., (2001) 10 SCC 607,
Raj Kishore Jha vs. State of Bihar
Ors., (2003) 11 SCC 519 and
State of Orissa vs. Dhaniram Luhar,
(2004) 5 SCC 568).”

9.1. Additionally, the Division Bench of this Court in the case of
Mayurbhai Kantibhai Gohil v. State of Gujarat Others reported in
2015(1) GLR 894 in para 11 though it relates to reasons about grant or
refusal of the interim order, but the observations contained in para 40 of
the Hon’ble Supreme Court’s, decision referred to in this para 11, the
Court would like to reproduce hereunder :-

“11. It is well settled that while granting and/or refusing interim
order, the Court has to assign briefly some reason. The Apex Court in
the case of ORYX Fisheries Private Limited Vs. Union of India
(UOI) and Others,2010 (13) SCC 427 observed in Para 40 as under:

“40. In M/s. Kranti Associates (supra), this Court after
considering various judgments formulated certain principles in
Para 51 of the judgment which are set out below:

(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such decisions
affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support
of its conclusions.

(c) Insistence on recording of reasons is meant to serve the
wider principle of justice that justice must not only be done, it
must also appear to be done as well.

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(d) Recording of reasons also operates as a valid restraint on
any possible arbitrary exercise of judicial and quasi-judicial
or even administrative power.

(e) Reasons reassure that discretion has been exercised by the
decision maker on relevant grounds and by disregarding
extraneous considerations.

(f) Reasons have virtually become as indispensable a
component of a decision, making process as observing
principles of natural justice by judicial, quasi-judicial and
even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior
Courts.

(h) The ongoing judicial trend in all countries committed to
rule of law and constitutional governance is in favour of
reasoned decisions based on relevant facts. This is virtually the
life blood of judicial decision-making justifying the principle
that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as
different as the judges and authorities who deliver them. All
these decisions serve one common purpose which is to
demonstrate by reason that the relevant factors have been
objectively considered. This is important for sustaining the
litigants faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial
accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid
enough about his/her decision-making process, then it is
impossible to know whether the person deciding is faithful to
the doctrine of precedent or to principles of incremental ism.

(l) Reasons in support of decisions must be cogent, clear and
succinct. A pretence of reasons or rubber-stamp reasons is not
to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non
of restraint on abuse of judicial powers. Transparency in
decision-making not only makes the Judges and decision-

makers less prone to errors, but also makes them subject to
broader scrutiny. (See David Shapiro in Defence of Judicial

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Candor (1987) 100 Harward Law Review 731-737).

(n) Since, the requirement to record reasons emanates from the
broad doctrine of fairness in decision-making, the said
requirement is now virtually a component of human rights and
was considered part of Strasbourg Jurisprudence. See 1994
(19) EHRR 553 , at page 562 Para 29 and Anya v. University
of Oxford, 2001 EWCA Civ 405, wherein the Court referred
to
Art. 6 of European Convention of Human Rights which
requires, “adequate and intelligent reasons must be given for
judicial decisions”.

(o) In all common law jurisdictions, judgments play a vital role
in setting up precedents for the future. Therefore, for
development of law, requirement of giving reasons for the
decision is of the essence and is virtually a part of “due
process”.”

10. In view of the above, it is desirable in the interest of justice to pass
the following order which would meet the ends of justice.

10.1. The impugned order dated 06.02.2021, passed by the learned 4th
Additional Sessions Judge, Surendranagar in Criminal Revision
Application No. 38 of 2020 is hereby quashed and set aside and a
consequence thereof, the learned Additional Sessions Judge is directed to
reconsider the issue after dealing with the contentions of both the sides
and shall pass a fresh order. Since the learned Sessions Judge to take a
fresh decision, this Court has not expressed any opinion on merit with
regard to any of the contentions raised in the present proceedings. It would
be open for the parties to the proceedings to raise all permissible
contentions before the Court below and after dealing with the same, the
learned Judge shall pass a fresh order, after assigning reasons.

10.2. Since the issue relates to custody of buffaloes of tender age,
looking to contentions as well as maintenance issue of those buffaloes, the
learned Judge shall pass a fresh order in the interest of justice at the
earliest, preferably within a period of eight weeks from the date of the

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receipt of the writ of this Court.

11. With the aforesaid observations and directions, the present criminal
revision application stands disposed of.

(ASHUTOSH J. SHASTRI, J)
phalguni

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