IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.         2020           OF 2009 (Arising out of S.L.P. (Criminal) No. 198 of 2009)

Bharat Amratlal Kothari and another ...  Appellants

Versus

Dosukhan Samadkhan Sindhi & others   ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. This appeal, by special leave, is directed against  

judgment dated December 30, 2008, rendered by  

the learned Single Judge of High Court of Gujarat  

at  Ahmedabad  in  Special  Criminal  Application  

No.  1387 of  2008 by which,  while  dealing with  

two prayers made by the respondent Nos. 1 to 6

herein, namely, (a) to declare that the order dated  

July  5,  2008,  passed by the  learned Additional  

Chief  Judicial  Magistrate,  Deesa,  refusing  to  

hand over  custody  of  the  live  stock to  them is  

illegal and (b) to declare that they are entitled to  

get custody of the entire live stock, which is in  

illegal  custody of  Bharat  Kothari,  i.e.,  appellant  

No. 1 herein and confined in the Panjarapole at  

Kanth, near Deesa, the learned Single Judge has  

: -

i)  held that each of the respondent Nos. 1 to 6 are  

guilty under Section 11(1)(d)  of  the Prevention of  

Cruelty to Animals Act, 1960 and punished each of  

them with fine of Rs.50/-;

ii) quashed  the  FIR  No.  II-C.R.No.  3131  of  2008,  

registered with  Deesa City  Police  Station  for  the  

alleged commission of  offences punishable  under  

Section 279 of Indian Penal Code, Section 11(1)(d)  

of the Prevention of Cruelty to Animals Act, 1960  

and  Sections  5,  6  and  8  of  Bombay  Animal  

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Preservation  Act,  1954,  at  the  instance  of  the  

appellant  No.  1  as  well  as  the  proceedings  

pursuant thereto, including the orders for interim  

custody  of  the  animals  and  the  revision  

applications preferred therefrom;

iii) directed  the  appellant  No.  1  to  pay,  by  way  of  

compensation and cost, to each of the respondent  

Nos.  1  to  6  a  sum  of  Rs.75,000/-,  without  

prejudice  to  their  rights  and  contentions  in  the  

criminal proceedings initiated by way of Criminal  

Inquiry Case No. 237 of 2008 and pending before  

the learned Chief Judicial Magistrate, Palanpur, as  

well as to pay, on behalf of respondent Nos. 1 to 6  

the  cost  of  maintenance  and  treatment  of  the  

animals  in  question  to  the  respondent  No.  8  

herein, i.e., Panjarapole Patan in accordance with  

the provisions of sub-Section (4) of Section 35 of  

Prevention of Cruelty to Animals Act, 1960, within  

a period of one month, i.e., latest by January 30,  

2009;

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iv) directed respondent No. 8, which is entrusted care  

and custody of the animals under interim order, to  

hand over the surviving animals to the respondent  

Nos.  1  to  6  in  such  proportion  as  the  original  

number of seized animals bears to the number of  

surviving animals;  

v) directed the State of Gujarat, i.e., respondent No. 7  

herein, to take appropriate departmental action for  

illegal or unauthorized actions, if any, on the part  

of any police officer and if, upon inquiry it prima  

facie  appears  that  any  police  officer  has  

participated  in  a  cognizable  offence,  to  initiate  

appropriate  criminal  proceedings  against  such  

officer;  

vi) directed the Registrar of the High Court to serve  

copy  of  the  judgment  upon the  appellant  No.  2,  

i.e.,  Animal  Welfare  Board  of  India,  Ministry  of  

Environment  and  Forests,  Government  of  India,  

13/1,  Third  Seaward  Road,  Valmiki  Nagar,  

Thiruvamiyr, Chennai; and

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vii) directed (a) the respondent Nos. 1 to 6 to take over  

the custody and care of surviving animals within  

two weeks and (b) that the Police Officer in-charge  

of  the  Police  Station  at  Patan  to  supervise  the  

delivery of the animals to the respondents  by the  

appellant or respondent No. 8 in such manner that  

the animals are not subjected to further cruelty in  

their  transportation  within  the  area  of  his  

jurisdiction.   The  respondent  Nos.  1  to  6  are  

further directed not to commit any offence under  

the Prevention of Cruelty to Animals Act, 1960 in  

respect  of  the  surviving  animals  and  submit  an  

undertaking to that effect to the police officer in-

charge of the Police Station at Patan.

3. The facts emerging from the record of the case are  

as under: -

 The  appellant  No.  1  is  an  Animal  Right  

Activist.   He  is  also  Secretary  of  Rajpur-Deesa  

Panjarapole,  which  is  a  public  trust  and  involved  in  

preservation of old, infirm and stray cattle.  One of the  

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objects  of  the  trust  is  to  prevent  illegal  and  

unauthorized  transportation  and  slaughtering  of  

animals.  On June 16, 2008 he with others was present  

at  Deesa.   He received a message that certain trucks  

with goats and animals had left from Badmer to go to  

Ahmedabad via Deesa and Palanpur.   In view of  this  

information  he  and  others,  i.e.,  Jivdaya  Dharmendra  

Kokani,  Vijaybhai  Chauhan,  Bherabhai  Mali  and  

Shivrambhai Mali kept a watch at Jalaram Cross Road  

since 11.00 P.M. in the night.  At about 2.00 A.M. on  

17.6.2008 they noticed that a line of trucks was coming  

from  Gayatri  Temple.   They  waived  their  hands  and  

search light to stop the trucks but the drivers of  the  

trucks did not stop the vehicles and were found driving  

trucks  speedily  towards  Palanpur.   Therefore,  the  

appellant No. 1 and others sat in an interceptor vehicle  

bearing registration number GJ-8-A-1294 and followed  

the trucks.  The appellant No. 1 had his mobile phone  

with  him and,  therefore,  informed the  Police  Control,  

Palanpur that trucks loaded with goats and sheep were  

coming  speedily  towards  Palanpur,  whereas  he  and  

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others  were  following  those  trucks  and,  therefore,  

necessary action should be taken to halt the trucks at  

Aroma Circle  Check  Post.   When  the  trucks  reached  

near  Aroma  Circle,  the  drivers  spotted  the  police.  

Therefore, they stopped their vehicles and, after leaving  

the trucks, ran away.  On search being made, it was  

found that in all  there were eight trucks and in each  

truck,  goats  and  sheep  were  being  conveyed  in  a  

congested manner.  It was also noticed that there was  

no facility of fodder, water, etc. in any of the trucks and  

that the drivers had meted out cruelty to the animals.  

On  making  the  inquiry  as  to  who  were  driving  the  

trucks,  it  was  found  that  (1)Ramjanbhai  Ibrahimbhai  

Sindhi, resident of Nilana, Taluka Shiv, District Badmer,  

(2)  Rojakhan  Dosukhan  Sindhi,  resident  of  Lilasa,  

Taluka  Shiv,  District  Badmer  and  (3)  Jamalkhan  

Dinakhan Sindhi,  resident  of  Nimlatada,  Taluka Shiv,  

District Badmer, Rajasthan, were drivers of some of the  

trucks.  They were arrested and on being questioned, it  

was informed by Ramjanbhai Ibrahimbhai Sindhi that  

the  others  were  cleaners  of  the  trucks.   It  was  also  

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learnt  from  Ramjanbhai  Ibrahimbhai  Sindhi  that  the  

goats and sheep loaded in the trucks were brought from  

Badmer  to  be  taken  to  Ranip  Slaughter  House,  

Ahmedabad.  He was called upon to produce permit for  

loading the goats and sheep, but he could not produce  

the same.  It was further learnt that the goats and sheep  

were filled in the trucks in an unauthorized and cruel  

manner.  Therefore, the goats and sheep were taken to  

Deesa from Palanpur in the trucks and other vehicles.  

One of such vehicle, i.e., mini truck No. GJ-9-Y-5143,  

conveying the goats and sheep from Palanpur to Deesa,  

had overturned on the side of the road as a result of  

which some animals had died.  The truck, which had  

overturned,  was  left  at  the  place  where  it  had  

overturned and other trucks were taken with goats and  

sheep to Kanth Panjarapole, Deesa.  The trucks, which  

were being driven from Badmer, were also taken to the  

said Panjarapole.  It was further found that in all there  

were 1974 animals out of which 99 animals had died  

and that  1875 goats  and sheep worth Rs.400/-  each  

were  kept  in  the  Panjarapole,  Deesa.  of  which  the  

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appellant  No.  1  is  the  Secretary.   Under  the  

circumstances  the  appellant  No.  1  filed  complaint  

against Ramjanbhai Ibrahimbhai Sindhi and others for  

alleged  commission  of  offences  punishable  under  

Section 279 of Indian Penal Code, Section 11(1)(d) of the  

Prevention of Cruelty to Animals Act, 1960 (for short the  

“Act”)  and  Sections  5,  6  and  8  of  Bombay  Animal  

Preservation Act, 1954.

4. The record further shows that another FIR was  

lodged  on  June  17,  2008  at  1430  hours  with  

Palanpur  Police  Station  by  Govind  R.  Rabari,  

mentioning  himself  as  an  accused  for  the  

commission  of  the  offence  punishable  under  

Section 279 of Indian Penal Code and stating that  

while  he  was  driving  mini  truck  carrying  the  

cattle from Palanpur to Deesa at the instance of  

the  appellant  No.  1,  he  had lost  control  of  the  

vehicle due to overweight of cattle as a result of  

which the truck had turned on its side killing six  

cattle and causing damage to the said vehicle.

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5. The case of the respondent Nos. 1 to 6 is that the  

appellant No. 1 and his associates are headstrong  

persons  who  had  grabbed  the  consignment  of  

sheep and goats illegally by stopping the trucks  

near Palanpur and forcing the trucks to be taken  

to Deesa.  According to the respondent Nos. 1 to  

6, not a single sheep or goat had died in any of  

the trucks, but large number of them were shown  

to  have  died  in  the  FIR  with  a  view  of  

appropriating them.  The respondent Nos. 1 to 6  

have  asserted  that  the  appellant  No.  1  had  

planned the entire operation of looting the trucks  

with the active help and connivance of local police  

at Deesa.  Therefore, one of the respondent Nos. 1  

to 6 filed complaint against the appellant No. 1  

with  Superintendent  of  Police  at  Palanpur  on  

June 17, 2008 itself about the forcible and violent  

taking over of the trucks with cattle and Rs.500/-  

in  cash.   In  the  complaint  filed  with  

Superintendent of Police, Palanpur, nothing was  

done.  Therefore, a criminal complaint was filed  

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in the Court of learned Chief Judicial Magistrate,  

Palanpur, which is registered as Criminal Inquiry  

No. 237 of 2008 on June 18, 2008 for the alleged  

commission  of  offences  punishable  under  

Sections 395, 427, 506(2) read with Section 34 of  

Indian  Penal  Code  alleging  that  the  persons  

accused therein,  including  the appellant  No.  1,  

had,  with  the  help  of  police,  taken  over  the  

trucks,  beaten  the  drivers,  looted  cash  of  

Rs.1,11,000/- and taken away sheep and goats  

worth Rs.45,48,000/-.  The learned Chief Judicial  

Magistrate  made  an  order  below  the  complaint  

directing  the  Deputy  Superintendent  of  Police,  

Palanpur,  to  make  a  report  within  seven  days  

after  conducting  investigation  into  the  earlier  

complaint filed before him on June 17, 2008.

6. The respondent Nos. 1 to 6, claiming to be the  

owners of  goats and sheep,  filed an application  

under  Sections  451  and  457  of  the  Code  of  

Criminal  Procedure,  1973  for  custody  of  the  

cattle.   The  learned  Additional  Chief  Judicial  

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Magistrate, Deesa, by order dated July 5, 2008,  

rejected the said application and further directed  

the Investigating Officer Mr. Lakhubhai Amubhai  

to  take  possession of  all  goats  and sheep from  

Rajpur-Deesa Panjarapole and to hand over the  

same within two days to the Panjarapole of the  

nearest  district,  except  the  District  of  

Banaskantha at Government cost and thereafter  

to submit a report to the Court.

7. Feeling aggrieved by the above mentioned order,  

the respondent Nos. 1 to 6 invoked extraordinary  

jurisdiction of the High Court under Article 226 of  

the  Constitution,  by  filing  Special  Criminal  

Application  No.  1387  of  2008.   It  may  be  

mentioned  at  this  stage  that  the  State  

Government, through Police Inspector Dauljibhai  

Savjibhai Asari, challenged order of the trial court  

refusing to hand over custody of goats and sheep  

to the respondent Nos. 1 to 6 before the learned  

Additional  Sessions  Judge,  Banaskantha  at  

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Deesa by filing of Criminal  Revision Application  

No. 41 of 2008.

8. The  Special  Criminal  Application  filed  by  the  

respondent Nos. 1 to 6 was placed for preliminary  

hearing  before  the  learned  Single  Judge,  who  

after  hearing  the  parties,  by  an  interim  order  

dated  October  24,  2008,  directed  the  appellant  

No.  1  to  shift  1325 sheep and goats  in  proper  

manner  to  Panjarapole  at  Patan  under  the  

supervision and in presence of the Investigating  

Officer of Deesa City Police Station before October  

31, 2008.

9. The  learned  Single  Judge,  by  the  impugned  

judgment, has convicted the respondent Nos. 1 to  

6 under Section 11(1)(d) of the Act and imposed  

fine as well as given other directions referred to  

above giving rise to the instant appeal.

10. This Court has heard the learned counsel for the  

parties at length and in great detail.  This Court  

has also considered the documents forming part  

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of  the  instant  appeal  as  well  as  documents  

forming part of the Special Criminal Application  

No.  1387  of  2008,  which  was  filed  by  the  

respondent Nos. 1 t0 6 before the High Court.

11. This Court notices that the respondent Nos. 1 to  

6 in the instant appeal had filed Special Criminal  

Application No. 1387 of 2008 under Article 226 of  

the  Constitution  before  the  High  Court  stating  

that  they  were  owners  of  the  goats  and  sheep  

seized by the police pursuant to FIR No. II-C.R.  

No.  3131  of  2008,  registered  with  Deesa  City  

Police  Station for  alleged commission of  offence  

under Section 279 IPC, Section 11(1)(d) of the Act  

and  Sections  5,  6  and  8  of  Bombay  Animal  

Preservation  Act,  1954  and  claimed  custody  of  

the cattle.  The names of the respondent Nos. 1 to  

6 are as under: -

1. Dosukhan  Samdakhan  Sindhi,  at  Village  Gudamalani, District Barmer, Rajasthan

2. Amirkhan Sadikkhan Sindhi, at Village Ramsar,  District Barmer, Rajasthan

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3. Razakkhan Noorkhan Sindhi, at Village Badau,  District Barmer, Rajasthan

4. Bherakhan  Hamidkhan  Sindhi,  at  Village  Bamgol, District Barmer, Rajasthan

5. Sadikkhan  Wagahkhan  Sindhi,  at  Village  Jalikheda, District Barmer, Rajasthan

6. Chanesar  Alakhan  Sindhi,  at  Village  Sarupekatla, District Barmer, Rajasthan.

It is an admitted position that II-C.R. No. 3131 of 2008  

is not registered with Deesa City Police Station against  

any of the respondent Nos. 1 to 6.  Admittedly, II-C.R.  

No. 3131 of 2008, for the alleged commission of offences  

punishable under Section 279 IPC, Section 11(1)(d)  of  

the Act and Sections 5, 6 and 8 of the Bombay Animal  

Preservation  Act,  1954,  is  filed  against  following  

persons: -

1. Rajakbhai Ibrahimbhai Sindhi

2. Sherubhai Dosubhai Sindhi

3. Ramkha Nurkha Sindhi

4. Jamalkhan Dinakha Sindhi

All residents of Nikla Tada, Taluka Shiv, District  Barmer (Rajasthan).

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This  Court  notices  with  surprise  that  though  the  

respondent  Nos.  1  to  6  herein,  who  were  original  

petitioners  before  the  High Court,  are  not  accused of  

commission of any offence even remotely, even then the  

learned Single Judge of the High Court has convicted  

them under Section 11(1)(d) of the Prevention of Cruelty  

to Animals Act, 1960 and imposed a fine of Rs.50/- on  

each of them.  It hardly needs to be emphasized that  

those,  who  are  not  even  remotely  alleged  to  have  

committed offence/offences, cannot be convicted at all  

either  at  the  trial  or  while  exercising  so  called  wide  

jurisdiction under Article 226 of the Constitution.  The  

four  accused  named  above  were  not  parties  to  the  

petition filed by the respondent Nos. 1 to 6 nor they had  

approached  the  High  Court  for  custody  of  goats  and  

sheep seized.  Therefore,  conviction of the respondent  

Nos. 1 to 6 under Section 11(1)(d) of the Prevention of  

Cruelty to Animals Act, 1960 and imposition of fine of  

Rs.50/-  on each of  them will  have  to  be regarded as  

without  jurisdiction,  unauthorized,  unwarranted  and  

illegal and will have to be set aside.

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12. From the final directions, given by the High Court  

in the impugned judgment, it is evident that the  

learned  Single  Judge  has  quashed  the  FIR  

registered as II-C.R. No. 3131 of 2008 with Deesa  

City Policy Station and the proceedings pursuant  

thereto including the orders for interim custody of  

the  animals  and  the  Revision  Application  

preferred therefrom.  The respondent Nos. 1 to 6,  

who had filed writ petition before the High Court,  

are not accused.  Therefore, they could not have  

prayed for and, in fact, have not prayed to quash  

the  FIR registered as  II-C.R.  No.  3131 of  2008  

with  Deesa  City  Police  Station  and  the  

proceedings  pursuant  thereto.   Prayer  for  

quashing the FIR could have been made only by  

the accused, who have been named above.  But  

none of them had chosen to invoke jurisdiction of  

the High Court either under Section 482 of the  

Code of Criminal Procedure or under Article 226  

of  the  Constitution  to  get  quashed  the  FIR  

registered as II-C.R. No. 3131 of 2008 with Deesa  

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City  Police  Station  against  them  and  the  

proceedings pursuant thereto.  The quashing of  

FIR at the instance of third parties is unknown to  

law.  Further, it is well settled that neither power  

under  Section  482  of  the  Code  of  Criminal  

Procedure,  1973  nor  jurisdiction  under  Article  

226 of the Constitution can be exercised by the  

High Court to quash the complaint if prima facie  

commission  of  offences  is  made  out.   The  

complaint lodged by the appellant No. 1 is on the  

record  of  this  appeal.   A  perusal  of  the  same  

indicates that the appellant No. 1 has averred in  

his complaint that close to 2000 goats and sheep  

were  being  transported  in  eight  trucks,  in  a  

cramped  manner,  denying  them even  food  and  

water  in  the  process.   It  is  asserted  by  the  

appellant No. 1 in his complaint that carrying of  

more than 200 animals in a truck is cruelty by  

itself.   The  other  averments  made  in  the  

complaint  could  not  have  been  ignored  while  

deciding  the  question  whether  the  complaint  

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deserves to be quashed.  The complaint has been  

quashed without taking into account the contents  

thereof or discussing them.  The examination of  

the  complaint  lodged  by  the  appellant  No.  1  

prima  facie  indicates  commission  of  offences  

mentioned therein by the accused.  Even before  

the investigation could be completed and report  

submitted  to  the  competent  court  by  the  

Investigating Agency, the High Court arrived at a  

pre-mature  conclusion  that  no  offences  under  

Section 279 IPC and under Sections 5, 6 and 8 of  

the Bombay Animal Preservation Act, 1954 were  

made out against the accused and quashed the  

criminal  proceedings.   Such  a  relief  to  the  

accused, who had not approached the High Court  

for  quashing  the  FIR,  could  not  have  been  

granted in a petition filed by the owners of goats  

and  sheep  seeking  custody  of  the  live  stock  

notwithstanding  wide  amplitude  of  power  

available  under  Article  226 of  the  Constitution.  

What  is  astonishing  is  that  the  learned  Single  

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Judge has convicted the respondent Nos. 1 to 6  

under Section 11(1)(d) of the Act, though none of  

them is  alleged  to  have  committed  any  offence  

either under the Act or under I.P.C. or under the  

Bombay  Act  of  1954  and  on  the  other  hand  

quashed  the  complaint.   The  scrutiny  of  the  

judgment impugned shows that the State had not  

filed  any  counter  to  the  petition  filed  by  the  

respondent Nos. 1 to 6 but the Additional Public  

Prosecutor for the State had submitted before the  

Court  to  quash  the  complaint  filed  by  the  

appellant No. 1 if the complaint was found by the  

Court  to  be  untenable  and  commission  of  

cognizable  offence  was  not  made  out.   The  

Additional  Public  Prosecutor  had  requested  the  

Court  to  quash  the  complaint  in  exercise  of  

inherent  jurisdiction  of  a  High  Court  under  

Section  482  of  the  Criminal  Procedure  Code.  

Probably, these submissions of Additional Public  

Prosecutor  had  prompted  the  learned  Single  

Judge  to  examine  the  question  whether  the  

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complaint filed by the appellant No. 1 should be  

quashed.   The  learned  Single  Judge  has  

concluded in para 11 of  the judgment  that  the  

offences as alleged in the FIR registered as II-C.R.  

No. 3131 of 2008 under Section 279 of IPC and  

Section 11(1)(d) of the Act or Sections 5, 6 and 8  

of the Bombay Animal Preservation Act were not  

made out and also recorded another finding that  

excessive number of animals were carried in the  

vehicles  due  to  which  they  were  subjected  to  

unnecessary pain and suffering.  These findings  

are contradictory to each other in terms.  Having  

held that no offence under Section 11(1)(d) of Act  

was made out, why the respondent Nos. 1 to 6,  

who  are  not  shown  as  accused  at  all,  are  

convicted under Section 11(1)(d) of the Act, could  

not be explained by any of the learned counsel  

appearing  for  the  parties.   Also  the  grievance  

made by the appellant No. 1 in ground I of the  

memorandum of Special Leave to Appeal that by  

overstepping its jurisdiction and giving a go-bye  

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to the regular trial, the High Court has quashed  

criminal  proceedings  without  hearing  the  

complainant/appellant  No.  1  cannot  be ignored  

by this Court in view of peculiar facts of the case.  

The  learned  Single  Judge  has  quashed  the  

complaint of the appellant No. 1 contrary to the  

well  settled  principles  governing  quashing  of  a  

complaint.   Quashing  of  the  complaint  in  part  

should not have been ordered after convicting the  

respondent Nos. 1 to 6 for the offence punishable  

under Section 11(1)(d) of the Act and, therefore,  

for all these reasons, the impugned judgment is  

liable to be set aside.

13. What  is  noticed  by  this  Court  is  that  by  filing  

Special  Criminal  Application  No.  1387 of  2008,  

the  respondent  Nos.  1  to  6,  who  claim  to  be  

owners of the goats and sheep seized, had prayed  

for the following reliefs, which are enumerated in  

paragraph 8 of the petition: -

“8. In  the  aforesaid  facts  and  circumstances  and  the  grounds,  the  

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petitioners pray that Your Lordships will be  pleased  to  issue  a  writ  of  certiorari  or  mandamus  or  any  other  appropriate  writ,  order or direction;

(A)declaring that the impugned order dated  5.7.2008  passed  by  learned  Additional  Chief Judicial Magistrate, Deesa is illegal  to the extent that learned trial court has  refused to hand over custody of the live  stock  to  the  petitioners  and  further  be  pleased to quash and set aside the same  to that extent;

(B)be pleased to declare that the petitioners  are  entitled  to  get  the  custody  of  the  entire  live  stock  which  is  in  illegal  custody  of  Shri  Bharat  Kothari  –  respondent No. 1 herein and confined in  the Panjarapole at Kanth, near Deesa;

(C)pending admission and final  disposal  of  this  petition,  be  pleased  to  direct  the  respondents to forthwith handover entire  live  stock  of  1515  sheep  and  goats  as  mentioned  in  the  application  of  the  petitioners  before  learned  Additional  Chief Judicial Magistrate, Deesa in health  and saleable condition;

(D)such other and further relief that is just,  fit  and  expedient  in  the  facts  and  circumstances  of  the  case  may  be  granted.”

A  bare  glance  at  the  prayers  made  makes  it  clear  

beyond pale of doubt that the respondent Nos. 1 to 6  

had not prayed that the appellant No. 1 be directed to  

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pay  compensation  and  cost  to  each  of  them.   The  

grievance made by the appellant  No.  1 in the instant  

appeal is that without putting the parties to notice that  

the  Court  was  inclined  to  determine  and  direct  the  

appellant No. 1 to pay by way of compensation and cost,  

the learned Single Judge has determined the amount of  

compensation and cost at Rs.75,000/- and directed him  

to pay such amount to each of the respondent Nos. 1 to  

6.   

It  may  be  mentioned  that  Criminal  Inquiry  

Case No. 237 of 2008 referred to in the direction (iii), is  

the sequatter of the complaint filed by one of the aides  

of the respondent Nos. 1 to 6 alleging therein that the  

police personnel as well as the appellant No. 1 and other  

persons had robbed the accused of goats and sheep on  

the trucks along with an amount of  Rs.1,11,000/-  in  

cash.  After hearing the complainant in that case, the  

learned Chief Judicial Magistrate, Palanpur, passed an  

order on June 19, 2008 directing the complaint to be  

registered in the Criminal Inquiry Register and that is  

how Criminal Inquiry No. 237 of 2008 is registered in  

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the  Court  of  the  learned  Chief  Judicial  Magistrate,  

Palanpur.   Further  by  the  said  order  the  D.S.P.,  

Palanpur was also directed to report within seven days  

before  the  court  and  submit  a  progress  report  every  

seventh day till the completion of the investigation, after  

which the court was to pass further orders.

14. The approach of the High Court in granting relief  

not prayed for cannot be approved by this Court.  

Every  petition  under  Article  226  of  the  

Constitution  must  contain  a  relief  clause.  

Whenever the petitioner is entitled or is claiming  

more  than one  relief,  he  must  pray  for  all  the  

reliefs.  Under the provisions of the Code of Civil  

Procedure, 1908, if the plaintiff omits, except with  

the leave of the court, to sue for any particular  

relief  which  he  is  entitled  to  get,  he  will  not  

afterwards  be  allowed  to  sue  in  respect  of  the  

portion so omitted or relinquished.  Though the  

provisions of the Code are not made applicable to  

the  proceedings  under  Article  226  of  the  

Constitution, the general principles made in the  

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Civil  Procedure  Code  will  apply  even  to  writ  

petitions.   It  is,  therefore,  incumbent  on  the  

petitioner  to claim all  reliefs  he seeks from the  

court.  Normally, the court will grant only those  

reliefs  specifically  prayed  by  the  petitioner.  

Though  the  court  has  very  vide  discretion  in  

granting  relief,  the  court,  however,  cannot,  

ignoring  and  keeping  aside  the  norms  and  

principles governing grant of relief, grant a relief  

not even prayed for by the petitioner.  In Krishna  

Priya vs.  University  of  Lucknow [(1984)  1  SCC  

307],  overlooking  the  rule  relating  to  grant  of  

admission  to  Postgraduate  course  in  medical  

college, the High Court in the exercise of powers  

under Article 226 of the Constitution directed the  

Medical Council to grant provisional admission to  

the  petitioner.   This  Court  set  aside  the  order  

passed by the High Court observing that “in his  

own petition in the High Court,  the respondent  

has merely prayed for a writ directing the State or  

the College to consider his case for admission yet  

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the  High  Court  went  a  step  further  and  

straightway issued a writ of mandamus directing  

the College to admit him to M.S. course and thus  

granted relief to the respondent which he himself  

never prayed for and could not have been prayed  

for”.   Again,  in  Om  Prakash vs.  Ram  Kumar  

[(1991) 1 SCC 441], this Court observed, “A party  

cannot be granted a relief which is not claimed, if  

the circumstances of the case are such that the  

granting  of  such  relief  would  result  in  serious  

prejudice to the interested party and deprive him  

of the valuable rights under the statute”.  Though  

a High Court has power to mould reliefs to meet  

the  requirements  of  each  case,  that  does  not  

mean that the draftsman of a writ petition should  

not  apply  his  mind  to  the  proper  relief  which  

should be asked for and throw the entire burden  

of it upon the court.  It is relevant to notice that  

the High Court was not exercising powers under  

Article 226 of the Constitution suo motu but was  

examining  the  validity  of  order  passed  by  the  

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Additional  Chief  Judicial  Magistrate  refusing  to  

grant  custody  of  goats  and  sheep  to  the  

respondent Nos. 1 to 6, in the Special Criminal  

Application,  which  was  filed  by  them  under  

Article  226  of  the  Constitution  through  a  

seasoned  lawyer.   The  respondent  Nos.  1  to  6  

were represented by a senior counsel practicing  

in the Gujarat High Court and having regard to  

the  facts  of  the  case,  the  learned  lawyer  was  

justified only  in  claiming those  reliefs  to  which  

reference is made earlier.  The respondent Nos. 1  

to  6   were  seeking  a  writ  of  certiorari  or  

mandamus  to  declare  that  order  dated  July  5,  

2009,  passed  by  the  learned  Chief  Judicial  

Magistrate, Deesa, refusing to hand over custody  

of the goats and sheep seized to them, was illegal  

and were also seeking quashing of the said order.  

At no point of time, the learned advocate for the  

respondent  Nos.  1  to  6  had  moved  any  

application  seeking  permission  of  the  Court  to  

amend the prayer clause contained in the petition  

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so  as  to  enable  the  respondent  Nos.  1  to  6  to  

claim compensation from the appellant No. 1.  A  

fair  reading of  the  petition makes it  more than  

clear that no factual data whatsoever was laid by  

the  respondent  Nos.  1  to  6  for  claiming  

compensation from the appellant No. 1.  No facts  

were mentioned as to in which manner they or  

any of them had suffered damage or loss because  

of the handing over of custody of goats and sheep  

to  the  appellant  No.  1  and  ultimately  to  the  

respondent No. 8 Panjarapole situated at Patan  

nor  the  appellant  No.  1  was  permitted  to  

controvert  that  in  fact  no  damage  or  loss  was  

suffered by the respondent Nos. 1 to 6 or any of  

them.  There is no manner of doubt that the High  

Court was too indulgent in this matter.  After all,  

it was not a petition from a person languishing in  

jail  or  from  a  bonded  labourer  or  a  party  in  

person or public spirited citizen seeking to bring  

a gross injustice to the notice of the court.  Here,  

the High Court had before it the respondent Nos.  

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1 to 6 as petitioners.  The question whether the  

respondent Nos. 1 to 6 suffered damage or loss  

because of handing over of goats and sheep to the  

appellant No. 1 and/or to the respondent No. 8,  

depends upon facts to be proved.  Normally, such  

an exercise cannot be undertaken in a writ filed  

under Article 226 of the Constitution.  This Court  

further finds that the appellant No. 1 is not only  

directed to pay, by way of compensation and cost,  

to each of the respondent Nos. 1 to 6 a sum of  

Rs.75,000/-  but  is  further  directed  to  pay  on  

behalf  of  respondent  Nos.  1  to  6  the  cost  of  

maintenance  and  treatment  of  the  animals  in  

question to respondent No. 8 in accordance with  

the provisions of sub-Section (4) of Section 35 of  

the Act.  To mention the least, it is evident that  

the  respondent  Nos.  1  to  6  are  not  parties  to  

Criminal Inquiry Case No. 237 of 2008, which is  

pending  before  the  learned  Chief  Judicial  

Magistrate,  Palanpur.   As  observed  earlier,  the  

said inquiry has been initiated at the instance of  

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one  of  the  aides  of  the  accused.   In  the  said  

inquiry  the  question posed for  determination of  

the learned Chief  Judicial Magistrate, Palanpur,  

would be whether the appellant No. 1 and others  

with  police  personnel  had  committed  loot  of  

trucks  with  goats  and  sheep  and  also  cash  

amount of Rs.1,11,000.  The said inquiry is not  

concluded  as  on  today  nor  any  finding  is  

rendered that the appellant No. 1 and others with  

the aid of police personnel had committed loot of  

the  articles  mentioned in  the  complaint  of  that  

case.   Therefore,  the appellant  No.  1 could not  

have been directed to pay compensation and cost  

of Rs.75,000/- to each of the respondent Nos. 1  

to  6  without  prejudice  to  their  rights  and  

contentions in the criminal proceedings initiated  

by way of Criminal Inquiry Case No. 237 of 2008.  

Moreover,  no  claim  was  advanced  by  the  

respondent No. 8 herein that the appellant No. 1  

should  be  directed  to  pay,  on  behalf  of  the  

owners, i.e., the respondent Nos. 1 to 6, the cost  

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of maintenance and treatment of the animals in  

question  in  accordance  with  the  provisions  of  

sub-Section  (4)  of  Section  35  of  the  Act.  

Normally,  cost of maintenance and treatment of  

the animals in such cases would be payable by  

one who claims custody or who are the owners of  

the live stock but not by the complainant.  In the  

instant case the assertion made by the appellant  

No. 1 is that he was handed over custody of goats  

and sheep by the police after registration of FIR  

whereas the case of the respondent Nos. 1 to 6  

seems to be that the appellant No. 1 had taken  

possession of  the live  stock and trucks illegally  

before  the  FIR was  lodged  and had acted  in  a  

high  handed  manner.   The  dispute  whether  

appellant No. 1 was handed over custody of goats  

and sheep after filing of the complaint or whether  

he  had  obtained  custody  of  goats  and  sheep  

illegally  before  the  complaint  was  lodged,  will  

have to be adjudicated upon evidence to be lead  

by the parties.  Such a highly contentious dispute  

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cannot  and could not  be  resolved  in  a  petition  

under  Article  226  of  the  Constitution.   Having  

regard  to  the  totality  of  the  facts  and  

circumstances  emerging  from the  record  of  the  

case, this Court is of the firm opinion that there  

was  no  justification  at  all  in  directing  the  

appellant  No.  1  to  pay  a  sum  of  Rs.75,000/-  

towards  compensation  and  cost  to  each  of  the  

respondent  Nos.  1  to  6  and  to  pay  to  the  

respondent No. 8 herein the cost of maintenance  

and  treatment  of  the  animals  in  question  on  

behalf of the respondent Nos. 1 to 6.  Therefore,  

this direction is also liable to be set aside.

15. This Court further finds that the learned Single  

Judge has directed the State of Gujarat to take  

appropriate  departmental  action  for  illegal  or  

unauthorized actions, if  any on the part of any  

police officer  and if  upon inquiry it  prima facie  

appears that any police officer has participated in  

a  cognizable  offence,  appropriate  criminal  

proceedings be initiated against such officer.  It is  

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true  that  while  dealing  with  entitlement  of  

custody of goats and sheep the learned Additional  

Chief Judicial Magistrate, Palanpur has come to  

the  conclusion  that  the  seizure  of  goats  and  

sheep was not in accordance with law.  During  

the course of hearing of the appeal, the learned  

counsel  for  the  appellant  No.  1 has referred to  

several admissions made by the respondent Nos.  

1 to 6 which would indicate that the custody of  

the goats and sheep seized was handed over to  

the appellant No. 1 by the police.  However, it is  

not  necessary  to  make  a  detailed  reference  to  

them.  What is important to be noticed is that in  

the order passed by the learned Additional Chief  

Judicial Magistrate no officer has been named at  

all.  Whether search and seizure of the goats and  

sheep is illegal or not can be effectively gone into  

only at the stage of final disposal of the trial and  

not  at  interim  stage  when  the  court  hears  an  

application under Section 451 read with Section  

457 of the Code of Criminal Procedure, 1973 for  

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interim custody of the muddammal.  Direction to  

the  State  Government  to  initiate  appropriate  

departmental  action  for  illegal  or  unauthorized  

actions at the interim stage is harsh as well  as  

not called for on the facts of the case.  Therefore,  

the said direction, which is contained in clause  

(5)  of  paragraph 14 of  the impugned judgment,  

also deserves to be set aside.

16. This Court further notices that the learned Single  

Judge  has  directed  the  Registrar  of  the  High  

Court to serve a copy of the judgment impugned  

in  the  appeal  upon  the  appellant  No.  2,  i.e.,  

Animal  Welfare  Board  of  India,  Ministry  of  

Environment and Forests,  Government of  India,  

13/1  Third  Seaward  Road,  Valmiki  Nagar,  

Thruvamiyr, Chennai.  As this Court is inclined  

to set aside most of the directions given by the  

learned Single Judge in the impugned judgment,  

the direction to serve a copy of the judgment on  

the appellant No. 2, i.e., Animal Welfare Board of  

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India  becomes  redundant  and,  therefore,  the  

same is also liable to be set aside.

17. This  takes  the  Court  to  answer  the  question  

whether  respondent  Nos.  1  to  6 are  entitled to  

relief of interim custody of goats and sheep seized  

pursuant to filing of complaint No. II-C.R. 3131 of  

2008  registered with  Deesa City  Police  Station.  

The fact that respondent Nos. 1 to 6 are owners  

of  the  goats  and  sheep  seized  is  not  disputed  

either by the appellant No. 1 or by the contesting  

respondents.  Though the respondent No. 8 has,  

by  filing  counter  reply,  pointed  out  that  the  

officials of Panjarapole at Patan are taking best  

care of the goats and sheep seized in the instant  

case, this Court finds that keeping the goats and  

sheep in the custody of respondent No. 8 would  

serve  purpose  of  none.   Admittedly,  the  

respondent Nos. 1 to 6 by vocation trade in goats  

and sheep.  Probably a period of more that one  

and half years has elapsed by this time and by  

production of goats and sheep seized before the  

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court,  the  prosecution  cannot  prove  that  they  

were subjected to cruelty by the accused because  

no marks of cruelty would be found by this time.  

The trade in which respondent Nos.  1 to 6 are  

engaged, is not prohibited by any law.  On the  

facts and in the circumstances of  the case this  

Court is of the opinion that respondent Nos. 1 to  

6 would be entitled to interim custody of goats  

and sheep seized in the case during the pendency  

of  the  trial,  of  course,  subject  to  certain  

conditions.

18. For  the  foregoing  reasons  the  appeal  partly  

succeeds.  The directions Nos. 1 to 6, contained  

in paragraph 14 of the impugned judgment, are  

hereby  set  aside.   The  Special  Criminal  

Application No. 1387 of 2008 is accepted in part  

by directing the respondent No. 8 to hand over  

custody of goats and sheep seized in the instant  

case  to  the  respondent  Nos.  1  to  6,  who  are  

owners thereof, in such proportion as the original  

number of seized animals bears to the number of  

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surviving animals, on each of them depositing a  

sum of rupees fifty thousand with the trial court  

and each furnishing two sureties of Rs.50,000/-  

to  the  satisfaction  of  the  trial  court.   The  

respondent Nos. 1 to 6 be handed over custody of  

goats and sheep in the presence of Police Officer  

in-charge of the Police Station at Patan, who shall  

supervise  delivery  of  the  animals  to  the  

respondent Nos. 1 to 6 in such manner that the  

animals  are  not  subjected to  further  cruelty  in  

their  transportation  within  the  area  of  his  

jurisdiction.   The  respondent  Nos.  1  to  6  are  

directed to see that no cruelty is meted out to the  

surviving animals and submit an undertaking to  

that effect to the trial court within a period of two  

weeks from today.   

19. Subject  to  abovementioned  directions  regarding  

handing over interim custody of goats and sheep,  

the appeal is allowed.

…………………………J.

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[Harjit Singh Bedi]

…………………………J. [J.M. Panchal]

New Delhi; November 04, 2009.

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