1. The applicant before us has been convicted by the learned Magistrate under Clause (b) of Section 3 of the Prevention of Cruelty to Animals Act, XI of 1890. The facts upon which the conviction was had are these:
2. The applicant purchased certain cranes known as saras and was conveying them by rail from Indore to Kolhapur. They were young birds and prior to the applicant's purchase of them their eyes were sealed or stitched up in accordance with the practice which appears to prevail in India, as it certainly prevails, or used to prevail, in England. At the Poona station it was noticed that the birds' eyes were thus stitched up and were bleeding. A complaint was consequently lodged against the applicant.
3. Now it may well be, as the learned Magistrate believes, that this process of sealing up the eyes of cranes or hawks is in itself a cruel practice. But the question before us is not whether that practice is cruel, bat whether the requirements of Section 3(b) of the Act are satisfied. The words of that section, so far as they are now material to us, are these: "If any person in any place to which the public have access binds or carries any animal in such a manner or position as to subject the animal to unnecessary pain or suffering," then he shall be liable to the punishment provided. It is not questioned but that the birds are animals within the section, or that the platform of the Poona station is such a place as the section refers to. But it is contended by the learned Counsel for the applicant that the words which I have cited show that the intention of the Legislature is not to punish any form of cruelty, but to punish only such cruelty as is inflicted on an animal by causing it unnecessary pain or suffering by reason of the manner or position in which the animal is bound or carried. That appears to me to be the real intention of the language used, and I do not think it can be said here that the unnecessary pain or suffering which these birds endured was attributable to the manner or position in which they were carried. It is not contended that the applicant bound them in any such place as the section refers to, so that we are concerned only with the question whether he carried them in the manner or position which the section forbids.
4. Assuming that the Railway Company's carrying of the birds was the applicant's carrying, yet I am of opinion that the cruelty, if any, was caused by the antecedent stitching up of the eyes and not by the manner or position in which the birds were carried in the luggage van of the train. The method and position in which they were carried were admittedly usual, and added nothing to the pain which had already presumably been caused by the sealing. I am forced, therefore, though with some regret, to the conclusion that the provisions of the Act are not wide enough to cover this form of cruelty, and the application, therefore, must be allowed.
5. The conviction must be set aside, the accused must be acquitted and discharged and the fine, if paid by him, must be refunded to him.
6. I am of the same opinion.