Human Life Has Preference Over Animal in Man-Animal Conflict: Kerala HC [READ JUDGMENT]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT:

                 THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
                                            &
                     THE HONOURABLE MR.JUSTICE K.HARILAL

      FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938

                               AS.No. 541 of 1998 ( G)
                                  -----------------------

 AGAINST THE JUDGMENT & DECREE DATED 09-02-1998 IN OS 2/1993 of SUB
                                     COURT, TIRUR

APPELLANT/1ST DEFENDANT IN THE TRIAL COURT:
--------------------------------------------------------

       T.K.MUHAMMED SHAFEEQ,
       S/O. T.K.KUNHUMOIDEEN,
       SUB INSPECTOR OF POLICE,
       TIRUR (AT THE RELEVANT TIME),
       THOTTUNGAL HOUSE, P.O. THEKKUMMURI,
       TIRUR-5, MALAPPURAM DISTRICT.

                BY ADVS.SRI.C.RAMAN
                          SMT.MEERA P.MENON


RESPONDENTS/PLAINTIFFS AND 2ND DEFENDANT IN THE TRIAL COURT:
--------------------------------------------------------------------------------

       1.      THE MANAGER,
               TALI DEVASWOM,
               CALICUT, KOZHIKODE DISTRICT.

       2.      P.K. ETTANUNNI RAJA,
               THE ZAMOORIN RAJA OF CALICUT,
               THE TRUSTEE OF TALI DEVASWOM,
               CALICUT, RESIDING AT PUTHIYAKOVILAKAM,
               THIRUVANNOOR, KOZHIKODE.

       3.      THE STATE OF KERALA,
               REPRESENTED BY THE DISTRICT COLLECTOR,
               MALAPPURAM.


                R3 BY GOVT. PLEADER SRI.SUNILKUMAR KURIAKOSE
                R2 BY ADV. SMT.SHAHNA KARTHIKEYAN

         THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30-09-2016,
ALONG WITH AS. 550/1998, THE COURT ON 25-11-2016 DELIVERED THE
FOLLOWING:




OKB



                                                    CR
             V.CHITAMBARESH & K.HARILAL, JJ.
              ---------------------
                 A.S. Nos.541 & 550 of 1998
              ---------------------
        Dated this the 25th day of November, 2016


                        JUDGMENT


Harilal, J.

Preface

           'Neelakantan', an elephant by name, was shot

dead by the Sub Inspector of Police, while he was in

discharge of his official duty. According to him, the

elephant was shot dead, to save life of several human

beings; but, the owner of the elephant contended that

the shooting, that culminated in death of the

elephant, was unwarranted and unjustifiable.       The

legality and liability that arise out of the said fire

shot and the order of preference to be borne in mind

of a public servant, in a dangerous situation, where

the right to life of the human beings is under the

threat caused by a dangerous animal, have come up

before us for determination in these appeals.

The sequence of events

    2.     'Neelakantan' was a captive elephant owned

A.S.Nos.541 & 550 of 1998        :2:



and possessed by 'Thali Devaswom' and the plaintiffs

are the trustees of the said Devaswom. According to

the plaintiffs, 'Neelakantan' was a harmless elephant,

loved and reared by the Hindus of that locality. On

06.01.1992, he was hired by a Mosque Committee for

'Nercha' festival.        As a part of the festival, he was

taken to each house in the locality for receiving

offerings from the householders. While he was taking

to the house of a lady by name Fathibi, somebody

pelted stone at his vital part, while urinating. On

receiving the hit at his sensitive part, Neelakantan

became enraged and violent and the Mahouts failed to

control him, though they were three in number. They

also were shaken off and thrown off to a distance. He

destroyed several coconut trees, arecanut trees,

caused damage to other trees standing in the property

and eventually he was confined to that house compound

by closing the gate at 4.30 p.m.            On receipt of

information at 4.30 p.m. the 1st defendant, the Sub

Inspector of Police, Tirur, with policemen reached

there.      The Chief Mahout informed the 1st defendant

that he had informed the Veterinary Doctors at

A.S.Nos.541 & 550 of 1998      :3:



Trissur, who are capable to administer tranquilizer

shot. Again, people gathered there and the elephant

got afraid and ran out of the compound, after

demolishing the gate. Then, the 1st defendant shot the

elephant at his leg. Neelakantan entered into a small

Mosque and thereafter tried to get out through a

narrow passage and in that attempt, he demolished the

urinal shed of the Mosque, charged one man, by name

'Mohammedkutty', who was inside the urinal shed, he

sustained injuries and succumbed to the injuries.

Then Neelakantan turned back, entered on the road and

began to walk through the road to a distance of about 9

Kms, reached at the estuary of the River Ponnani,

jumped into the river and began to swim towards

opposite side. But, according to the plaintiffs, he

bogged down in the slush and could not proceed

further.       In the meantime, the 1st defendant and his

party got into a boat and chased Neelakantan. When

came near him, they mercilessly shot and killed him at

11 p.m. The Veterinary Doctors from Thrissur reached

there at 12 midnight, one hour after his death. This is

the summary of the sequence of events averred in the

A.S.Nos.541 & 550 of 1998      :4:



plaint.

Pleadings

      3.    According to the plaintiffs, Neelakantan was

not in rut and he got enraged due to the inexcusable

misconduct on the part of the unruly mob gathered

around him. He was shot dead unnecessarily and it was

an act of sadism and cruelty towards an animal. Had

the 1st defendant waited till the arrival of the

Veterinary Doctors, so as to administer tranquilizer

shot, death of Neelakantan could have been avoided.

Thus, the shooting of Neelakantan was unjustified and

unwarranted. Probably, the 1st defendant was anxious

to claim the credit of being the one officer, who had

shot an elephant. Thus, the act of shooting was not in

discharge of his official duty. Hence, the defendants

are liable to pay damages for the loss sustained by the

plaintiffs. They have sustained a loss of Rs.8 lakhs,

but limited their claim to Rs.5 lakhs only and prayed

for granting a decree for the said amount.

      4.     In the written statement, the 1st defendant

contended that the incident did not take place in the

manner as alleged in the plaint.        The sequence of

A.S.Nos.541 & 550 of 1998    :5:



events that eventually culminated in the death of

Neelakantan, by fire shot, was narrated falsely in the

plaint. When he got the information that an elephant

brought for 'Nercha' has run amok and the entire

locality was horror stricken, he informed his superior

authorities for necessary instructions and permission

to shoot the elephant, if necessary, and obtained

Ext.B1 order, which directed him to take immediate

action to protect the life and property of the people,

from the District Collector. When he reached there at

4.30 p.m., he found the elephant standing inside the

compound of a house, after destroying several trees

and huge crowd was seen surrounded the compound.

But, he did not see the Mahouts anywhere near the

elephant. After clearing the mob, he made an attempt

to chain the elephant with the help of certain Mahouts

of some other elephants; but, that attempt was not

successful. After demolishing the gate and compound

wall, Neelakantan went out and entered into the

compound of a Mosque and thereafter tried to get out

of that compound through a narrow passage by

demolishing a urinal shed and in that attempt he

A.S.Nos.541 & 550 of 1998         :6:



charged a person by name Mohammedkutty, who was

inside the shed and he died at the spot. By that time,

the Tahsildar reached there and he contacted the

District Collector and again made sure that the police

can shoot the elephant, if the situation so warrants.

He was not informed of the requisition made to the

Veterinary Doctors to control the animal as alleged by

the plaintiffs.          When Neelakantan came out of the

compound and entered on the road, the policemen shot

him at his leg, on the apprehension of disastrous

consequences that may be caused to the public. By the

time, the District Collector and the Superintendent of

Police reached at the spot, followed by armed reserve

policemen. After entering into the River, Neelakantan

swam towards Purathoor, the eastern bank of the River,

where a fishermen colony is located.         If the unruly

violent elephant reaches that sleeping village at

midnight, it may cause havoc and imperil the life of a

large number of poor fishermen.           Even though the

police party tried to divert the direction of the

elephant, he continued to go ahead towards Purathoor.

So, with the bona fide intention to save the life of a

A.S.Nos.541 & 550 of 1998          :7:



large number of fishermen and their family members,

inhabiting on the other side of the river, towards

which Neelakantan swam, the armed reserve policemen

fired and the elephant was shot dead. It is not true

that he shot down the animal at the river while it was

standing bogged in the slush.           The elephant went

berserk because it was over worked and unfed by the

Mahouts. He has acted within the confines of law, in

discharge of his duty, after obtaining necessary

instructions and order from the competent authorities

under law.             The policemen shot the elephant, in

adherence to the direction, to take immediate action,

including the shooting of the elephant, to protect the

life and property of the human beings. The service of

armed police force was also availed, for tackling the

havoc and to maintain public order. In short, he had

been properly instructed, directed and accompanied by

superior officers, when Neelakantan was shot dead.

The suit was not maintainable and barred by limitation

under the provisions of the Kerala Police Act. So, the

defendants are not liable to pay any amount to the

plaintiffs as damages.

A.S.Nos.541 & 550 of 1998        :8:



      5.     The District Collector also filed a written

statement challenging the maintainability of the suit

under Section 133(i) and (vi) of the Cr.P.C. and Sec. 64(1)

of the Police Act.         So also the suit was barred by

limitation under Sec. 64(3) of the Police Act.          He

admitted that on the basis of the report of the

Superintendent of Police, Malappuram that an elephant

went berserk at B.P.Angadi and may charge the crowd

causing eminent danger to the human life and property,

as District Magistrate, in exercise of powers conferred

under the provisions of the Cr.P.C., he had issued

orders directing the police to take immediate action

to protect life and property of the public and if

necessary even by shooting the animal and it was in

adherence to Ext.B1 order the 1st defendant and other

members of the police acted against the elephant. The

Tahsildar as Executive Magistrate was present at the

spot, the police party gave sufficient time to the

Mahouts to control the animal; but they miserably

failed to control it. Though the Veterinary Doctors

were called, they also could not reach till 11 O'clock.

If the elephant had killed more people, the 1st

A.S.Nos.541 & 550 of 1998           :9:



defendant could have been personally liable for the

failure to discharge his duty, despite the receipt of

Ext.B2 order.            The policemen shot the elephant, in

discharge of their official duty, so as to prevent

danger to life and property of the people in that

locality. According to him, the action taken by the

policemen          is    justified by   circumstances  which

warranted firing. Therefore, there is no liability to

give compensation to the plaintiffs.           Thus, he also

prayed for dismissal of the suit.

      6. On the above pleadings, both parties adduced

oral and documentary evidence, in abundance, consists

of oral testimonies of P.Ws.1 to 9 and D.Ws.1 to 7 and

Exts.A1 to A9 and B1 to B13.            After considering the

aforesaid evidence, the trial court decreed the suit

and the lower appellate court confirmed the findings

of the trial court and dismissed A.S. Nos.541/1998 and

550/1998 filed by the defendants 1 and 2 respectively.

The legality and correctness of the concurrent

findings are assailed in these Regular Second Appeals.

Arguments

      7. Heard the learned counsel for the appellants

A.S.Nos.541 & 550 of 1998     :10:



and the learned counsel appearing for the respondents.

      8. Shri Nandagopan S. Kurup, the learned counsel

for the appellant in A.S.No.541/1998 mainly contended

that the suit was not maintainable under Section 64(1)

and barred under Section 64(3) of the Police Act. But

the court below miserably failed to consider the

aforesaid provision in its correct perspective and

went wrong in finding that the shooting, which

resulted in death of the elephant, was not an act in

discharge of official duty. It is also contended that

the act done by the appellant is insulated under

sovereign immunity.

      9. Per contra, Shri M.P.Sreekrishnan, the learned

counsel for the respondents advanced arguments to

justify the impugned judgment.       According to him,

there is no order granting permission to shoot the

elephant and the police party ought to have waited till

the arrival of the Veterinary Doctors.       Similarly,

shooting could have been done on the failure of the

tranquilizer shot only.      Thus, the act done by the

appellants cannot be justified under the order passed

by the 2nd respondent. It is also contended that the 2nd

A.S.Nos.541 & 550 of 1998    :11:



respondent has no sovereign immunity as such concept

was vanished under law. In short, according to him, the

shooting, which resulted in the death of Neelakantan,

was unwarranted and is unjustifiable.

The points to be considered

      10. The legality and correctness of the impugned

judgment centre around the findings on four questions;

(1) whether the suit was maintainable? (2) whether the

suit was barred by limitation? (3) whether the act,

which resulted in the death of the elephant, was an act

done in good faith, in discharge of official duty? and

(4) whether the appellant is entitled to get protection

under the doctrine of sovereign immunity?

The Findings

      11. Firstly, let us examine the findings whereby

the court below decreed the suit.        Going by the

impugned judgment, it is seen that the court below

arrived at the findings that the suit is maintainable

and not barred by limitation, as the act done by the

appellant was not in discharge of official duty.

Emergence of Ext.B2 order, is shrouded in mystery and

thereby it will not fall under Sec. 64(1) of the Police

A.S.Nos.541 & 550 of 1998                :12:



Act.      Since the act done was not in discharge of

official duty, the suit was not barred by the period of

limitation under Sec. 64(2) of the Police Act. There was

no circumstance warranting shooting of Neelakantan.

The above questions are seen discussed together and

the findings are seen interlinked. So, the questions of

maintainability of the suit and limitation are based on

the findings on question No.3 also.

      12. Let us examine question Nos.1 and 3 together.

It is the case of the defendants that the suit is not

maintainable under Section 64(1) of the Kerala Police

Act. On the other hand, the plaintiffs' case is that the

fire shot, which resulted in death of Neelakantan, was

not in discharge of official duty imposed or authority

conferred upon the 1st defendant by the Police Act or

any law for the time being in force and the shooting of

the elephant was unwarranted as the circumstance

would not justify the said act. Section 64(1) & (2) of

the Kerala Police Act reads as follows:

                     "64. Magistrate or Police Officer not liable for

              anything done in good faith,-

              (1) No Magistrate or Police Officer shall be liable to any

              penalty or payment of damages on account of any act

              done or intended to be done in good faith in pursuance of

A.S.Nos.541 & 550 of 1998                  :13:


              any duty imposed or any authority conferred on him by

              any provision of this Act or of any other law for the time

              being in force conferring power on the Magistrate or

              Police Officer or of any rule, order or direction lawfully

              made or given thereunder.

              (2) Person duly appointed or authorised not liable for

              anything done in good faith,-   No person duly appointed

              or authorised shall be liable as aforesaid for giving effect

              in good faith to any such order or direction issued by the

              Government or by a person empowered in that behalf

              under this Act or any rule made under any provision

              thereof."


      13. In our view, the first point is, whether the act

was done in good faith. It is not disputed that the 2nd

defendant is a District Magistrate and the 1st

defendant is a Police Officer, who is liable to adhere

and give effect to any order or direction issued by the

2nd defendant, under law.                 The plaintiffs have no case

that the appellant has any mala fide intention or

ulterior motive to kill Neelakantan.                                The only

allegation is that "probably the 1st defendant was

anxious to claim the credit of being one officer who

had shot an elephant to death".                         Needless to say,

according to the plaintiffs themselves, the said

allegation is a probable one only and they are not sure

that he had such a bad intention. They do not have a

A.S.Nos.541 & 550 of 1998        :14:



case that he will get any benefit or advantage as a

person or a police officer, by killing an elephant. In

the     absence         of any material in evidence,  to

substantiate the probability expressed in the plaint,

this Court has no hesitation to hold that neither the

1st defendant nor the 2nd defendant had any bad faith or

mala fide intention or ulterior motive, in killing the

elephant Neelakantan.

      14. The second point to be considered is, whether

the act done was in exercise of any duty imposed or

any authority conferred on him by the Police Act and

what is the authority and power conferred on the

defendants to act in such a way, to shoot at

Neelakantan in discharge of their duty. Can the court

below be justified in arriving at the findings that the

act of shooting was not intended to be done in good

faith in pursuance of any duty imposed or any

authority conferred on the defendants?

      15. The authority and the power of the 2nd

defendant to issue Ext.B2 order as District Magistrate

is not disputed by the plaintiffs. Moreover, the court

below observed that the genuineness of Ext.B2 order

A.S.Nos.541 & 550 of 1998    :15:



cannot be doubted, though the order was not emerged

as stated by the defendants.      Thus, the procedure,

under which Ext.B2 had been issued, alone is doubted by

the court below. At this juncture, it is worthwhile to

note the wide powers vested with the District

Magistrate for maintaining the public order, in a

situation where a dangerous animal causes danger to

the public, envisaged under Chapter X of the Cr.P.C.

According to the very wide powers granted to the

District Magistrate under Chapter X of the Cr.P.C., in

urgent cases of nuisance or apprehended danger, where

danger to human life requires immediate prevention or

speedy remedy, and the circumstances do not admit

serving of notice, the District Magistrate has the

power to pass order ex parte. Under Section 142 of the

Cr.P.C., the Magistrate has power to order injunction

to prevent or obviate immense danger where immediate

measures should be taken and no suit shall lie in

respect of anything done in good faith by the

Magistrate under this power. On a combined reading of

Secs.133, 142 and 144 of the Cr.P.C., the District

Magistrate, the Sub Divisional Magistrate and the

A.S.Nos.541 & 550 of 1998          :16:



Executive Magistrate are empowered to pass and issue

orders to the police to take urgent measures to

prevent or obviate danger to the human life caused by

a dangerous animal and in cases of emergency, such

Magistrates have the power to make an order to

destroy        the       animal.    Needless to say, the

circumstances, under which such an order has been

made, must justify the order. The circumstances must

be to prevent or obviate danger to the human life

caused by a dangerous animal. Therefore, the issuance

of Ext.B2 order was well within the authority and

power vested with the 2nd defendant.

      16.       Coming to the Kerala Police Act, it is

worthwhile to note that according to Sec.29(a) of the

Police Act, it shall be the duty of every police officer

to obey and execute all orders and warrants lawfully

issued to him by any competent authority and

endeavour by all means to give effect to the lawful

commands of his superior officers. Whether the order

has been issued in compliance with the formality or

procedure is not a question to be adjudged by a police

officer to whom the order has been issued for

A.S.Nos.541 & 550 of 1998        :17:



execution. Whatever be the irregularities, according

to him, in the issuance of the order, if it was passed by

the competent authority and lawfully issued in

exercise of power conferred to him under law, the

police officer is liable to obey and execute such

orders and he must use his best endeavour to avert

danger to the public caused by the dangerous animal.

      17.      Let us have a look at the statutory duty

imposed on a police officer, where the public order is

disturbed.            Chapter V of the Kerala Police Act

prescribes the duties of the police officers. As per

Section 29(d), (h) and (l), it shall be the duty of the

every police officer, to prevent to the best of his

ability, the commission of public nuisance, use his

best endeavours to prevent any injury attempted to be

committed, in his view, to any public property or the

removal of or injury to any public landmark or mark

used for navigation and use his best endeavours to

avert any accident or danger to the public.

      18.      Coming to the Police Manual, Vol.II, Clauses

228 to 238 deal with maintenance of law and order,

duties and responsibilities of the police officers. As

A.S.Nos.541 & 550 of 1998        :18:



per Clause 194(2), it is the duty of a police officer to

obey and execute every process or other order lawfully

issued to him by a competent authority and by all

lawful means to give effect to the commands of his

superior. As per Clause 196, every police officer is

under an obligation to make his best efforts to

prevent the commission of such nuisances.        According

to Clause 232, a police officer is empowered to open

fire arms under the specific direction             of  the

Magistrate, except under extreme situation in self

defence.          According to Clause 233(1), prevention of

riots and disturbance are the important duties of the

police officers.

      19. The third point to be considered is, whether

the District Magistrate/2nd defendant had granted

permission to shoot the elephant. The learned counsel

for the respondents vehemently contended that the 2nd

defendant has not granted permission to shoot

Neelakantan and such a permission can never be

inferred from Ext.B2, at any stretch of imagination. In

short, Ext.B2 is shrouded in mystery, according to him.

The 1st defendant should not have opened the firearm

A.S.Nos.541 & 550 of 1998         :19:



unless and until the veterinary doctors from Thrissur

reached the spot and administered tranquilliser

shot and failed to control             the elephant by that

method.

      20. Going by Ext.B2 order, it is discernible that

the District Superintendent of Police, Malappuram, had

made      a    request     to  the  2nd respondent  seeking

permission to shoot the rogue elephant, if it is likely

to turn violent and the 2nd respondent, in turn, passed

the order on the request itself as: "Yes, take

immediate action to protect the life and property of

the public.           The owner and the Kerala Agricultural

University may also be notified". On a combined

reading       of the request       and the order granted

thereunder in the same paper, it can be clearly and

reasonably presumed that the permission was granted

for shooting the elephant to protect the life and

property of the public, if necessary.              But the

plaintiffs have lost sight over the request made and

the endorsement of 'yes' thereon and they construed

the order isolatedly. The request and order passed

thereunder must be read together, not in isolation. On

A.S.Nos.541 & 550 of 1998          :20:



a combined reading in juxta position, we have no doubt

in our mind that the permission was granted to shoot

the elephant, if necessary, and neither further order

or instruction from the 2nd respondent nor his presence

was required to shoot the elephant.

      21.       The learned counsel appearing for the

plaintiffs further contended that from the direction

to inform the owner and the Agricultural University, it

could be presumed that the 1st respondent should not

have opened the firearm, unless and until P.Ws.7 and 8,

the      Veterinary        Doctors   reach and    administer

tranquilliser shot and found it ineffective.             The

argument advanced by the learned counsel for the

plaintiffs is far fetched and stretched, in view of

Ext.B2 order and it is indigestible in the mind of an

ordinary prudent man also.          To sum up, obviously, the

2nd   defendant          granted permission  to  shoot    the

elephant, if necessary, to protect the life and

property of the public. Thus, the shooting was well

within the permission granted by the 2nd defendant to

the 1st defendant. In the light of the aforesaid

provisions under the Police Act and the Police Manual,

A.S.Nos.541 & 550 of 1998         :21:


we further find that the 1st defendant was bound to

obey the directions in Ext.B2 order. So also, it was

obligatory on his part to prevent the public nuisance

and public disorder thereunder that may be caused by

the elephant and use his best endeavors for the same.

      22. As we have held above, the plaintiffs have not

challenged the power and authority of the 2nd

defendant to pass Ext.B2 order and the court below

also found that the genuineness of Ext.B2 order cannot

be doubted. We do not find any reason for arriving at a

finding that Ext.B2 is shrouded in mystery and the

emergence of Ext.B2 was not as stated by the

defendants.           In view of the reasons stated in the

foregoing paragraphs, we reject the aforesaid findings

of the court below, as unfounded. The sequence of

events, which led to passing of Ext.B2 order, were well

narrated by P.W.5, the Special Branch Sub Inspector and

there is no reason to doubt his evidence.       We have no

hesitation to add that the issuance of Ext.B2 order was

just and proper in the given situation.

      23. The fourth point to be considered is, whether

the circumstances would justify the shooting of the

A.S.Nos.541 & 550 of 1998        :22:



elephant. It stands admitted that the entire episode

started in the compound of the residential house of

Fathibi at 4.30 p.m. and ended in the river at 11 p.m.

and either the mahouts or the policemen could not

control the elephant, despite the long lapse of 6=

hours.        It has come out in the evidence of the

plaintiffs themselves that P.Ws.7 and 8, who are

Veterinary Doctors as well as experts in controlling

amok elephants arrived at            the river bank at 12

midnight, one hour after the death of the elephant

Neelakantan by fire shot and they returned back

knowing the death of Neelakantan. In the plaint itself,

the     plaintiffs       have averred  that  the  elephant

destroyed certain coconut trees and arecanut trees

which stood in the compound of Fathibi's house and

caused damages to some other trees and thereafter

entered into the compound of Mosque and tried to get

out of the Mosque and in that attempt pulled down a

urinal shed and caused the death of Mohammedkutty.

Thus, the fact, that Neelakantan went amok and

destroyed          several  trees and  structures,  stands

admitted and the cause of death of Mohammedkutty

A.S.Nos.541 & 550 of 1998        :23:



alone is disputed by the plaintiffs.

      24. The learned counsel for the respondents

advanced arguments to make it believe that the death

of Mohammedkutty was not caused by the elephant.

According            to   the plaintiffs, the   deceased

Mohammedkutty was trapped inside the urinal shed and

he sustained injuries when the urinal shed was

demolished by the elephant by pulling it down. On the

other hand, the learned counsel for the appellant

advanced argument contending that Exts.B4 to B7

photographs with negatives and Ext.B8        postmortem

certificate of the deceased would unambiguously prove

that the injuries to which he succumbed were sustained

when the elephant charged him.

      25. We are of the opinion that even if the version

put forward by the plaintiffs is admitted, it can be

concluded that the death was caused by the elephant

whether it was by pulling down the urinal shed or by

goring or stamping him to death. Relying on various

judicial precedents, in Veeramani Chettiyar v. Davis

and others [2012 (4) KLJ 375], this Court held that since

the elephant is a dangerous animal the owner/keeper of

A.S.Nos.541 & 550 of 1998          :24:



an elephant is strictly liable, independently of

negligence, for the damage caused by the elephant and

the     doctrine         of strict liability, propounded  in

Reylands v. Fletcher [1908 (2) KB 825], would apply

against the owner/keeper. The owner/keeper of a

dangerous animal would be liable whether the damage

or death was the direct result of the violent behaviour

of the elephant or not. The test, which has universal

acceptance, for the determination of the question

whether the wrongful conduct is a cause, in fact, of the

damage or death, is the "but for" test. So, it is

sufficient to prove that but for the elephant's violent

behaviour, the injury or death would not have occurred.

The death need not be by direct attack, particularly in

the case of a dangerous animal.            Even if the death

occurred when the elephant pulled down the urinal

shed, it cannot be said that the death was not caused

by the elephant. However, we find that the death of

Mohammedkutty was caused by the violent act of the

elephant, whatever be the manner in which the injuries

were sustained. In short, the death was caused by the

elephant, Neelakantan. However, we find that the death

of Mohammedkutty caused an impression in the mind of

A.S.Nos.541 & 550 of 1998       :25:



the people and the policemen that death was caused by

the violent attack of the elephant and that made the

policemen apprehensive of further more consequences.

      26.     D.W.7 is the doctor who had examined five

persons who were charged by Neelakantan and he had

issued Exts.B9 to B13 wound certificates. These wound

certificates unfolded by the testimony of P.W.9 doctor

proved that Neelakantan caused injury to the persons

mentioned in Exts.B9 to B13, in the course of his

violent behaviour.         We do not find any reason to

disbelieve these certificates.       But, the trial court

went wrong by making an unfounded observation that

these certificates may        be manipulated.   In short,

damages caused to the trees and structures and the

injury caused to several people, after Neelakantan

went amok, stand proved beyond doubt, and these made

the police apprehensive of more danger to the life and

property of the people.

      27. It is not disputed that the elephant jumped

into the river and swam towards the opposite side of

the river, where a fishermen colony is located.     It is

the case of the appellants that from 4.30 p.m. onwards

A.S.Nos.541 & 550 of 1998          :26:



they were trying to chain and control the elephant; but

they miserably failed in that attempt and in the

meantime the elephant caused the death of one man.

Even though the Veterinary Doctors were informed,

they could not arrive till 11 p.m. When the elephant

swam towards the opposite side, the 1st defendant and

other policemen apprehend that if the elephant

reaches at the opposite side and enters, at the

midnight, into the fishermen colony, while the

fishermen and their families were sleeping, in view of

the mischief and destructions made earlier, including

the death of Mohammedkutty, the consequences would

be disastrous and on that apprehension, they have no

way other than shooting down the elephant while

swimming towards the opposite side. It is the case of

the plaintiffs that even if that be so, as apprehended

by the defendants, they could have waited till the

arrival        of      Veterinary  Doctors to administer

tranquilliser shot and they would have opened the

firearm, on the failure of tranquilliser shot only. We

are unable to countenance the said argument, in view

of the permission granted to the 1st defendant under

A.S.Nos.541 & 550 of 1998          :27:



Ext.B2 to take preventive action to protect the life

and property of the people. That apart, to us, the said

argument          is     not sensible  also, in  the   given

circumstances.

      28. Let us examine the evidence of P.Ws.1 to 8.

Admittedly, P.W.1 is not an eye witness to depose that

the sequence of events culminated in the death of the

elephant. He has hearsay information only. Therefore,

his     evidence         cannot  be   taken to  assess   the

circumstances under which the policemen shot the

elephant. P.W.2 is the mahout and he deposed as to the

cause of violence of the elephant. He also admitted

that the elephant has become violent and committed

mischief to both men and property. It is pertinent to

note that though they were three in number, they had

no courage to chain the violent elephant as it may kill

them.       When       the elephants become violent, at first

they will turn against mahouts, according to P.W.2.

The courts below itself found that the evidence of

P.Ws.2, 5 and 6 contain many discrepancies, but can be

ignored it as natural.           The said observation itself

shows that their evidence cannot be taken, as such,

A.S.Nos.541 & 550 of 1998         :28:



without further corroboration and it has come out in

evidence that P.Ws.3 and 4 had been nurturing

vengeance against the defendants. The learned counsel

for     the     plaintiffs   drew   our  attention to the

testimonies of P.Ws.7 and 8, the Veterinary Doctors who

are experts in elephant science and treatment and

contended that they have made an opinion that

Neelakantan was a harmless elephant and there was no

circumstance warranting shooting. But, we do not find

any value on their evidence. Because, admittedly they

are not eye witnesses to the sequence of events which

culminated in the death of Neelakantan and they have

arrived at the spot one hour after the death of the

elephant.

      29. We are of the view that in an enquiry as to the

circumstance            which led to   the shooting, their

knowledge about the earlier behaviour of Neelakantan

is neither significant nor relevant, because it is a

matter of common knowledge that the behaviour of

elephant is unpredictable. Even the mahouts who are

always        accompanying,     feeding  and  nursing the

elephants cannot predict their behaviour in certain

A.S.Nos.541 & 550 of 1998           :29:



circumstance and that is the reason why they are being

attacked at first. P.W.7 admitted that he never

examined          Neelakantan.     He   also  admitted  that

Neelakantan killed one person after became violent on

that day.          He deposed further that even after the

tranquiliser shot, elephant may run away and kill

people. When asked a specific question, do you have an

opinion that elephant can never be shot, he replied

that it depends upon so many factors. Therefore, P.W.8

was     examined         to  prove   that  he  had  examined

Neelakantan earlier and at that time there was no

indication or symptom of musth. If he does not know

the physical condition of Neelakantan on the date of

occurrence, his evidence on the basis of earlier

examinations cannot be taken at its face value. That

apart, in this case, we are not concerned with the cause

of    violence,         particularly  when  the elephant  is

dangerous animal under law and it stands admitted

that Neelakantan has become violent and caused death

of one person and charged several persons and

committed mischief to the property.

      30.     It     is  the  case   of  the plaintiffs that

A.S.Nos.541 & 550 of 1998         :30:



Neelakantan was a harmless elephant reared and loved

by    Hindus         in  that locality  and  there  was  no

circumstance warranting interference of police.          We

are unable to countenance the said arguments, in view

of the judicial precedents on this point. It is to be

remembered that this Court in Veeramani Chettiyar v.

Davis and others [2012 (4) KLJ 375], relying on various

judicial precedents, held that elephant is a dangerous

wild animal (ferae nature).           In our view, since the

elephants are dangerous wild animals, it made no

difference that a particular elephant is highly trained

or harmless and the harmfulness of an offending

animal has to be adjudged not by the particular

training or habit, but by reference to general habit of

the species to which it belonged. The above view is

supported by the decision reported in Filburn v.

Peoples Palace and Aquarium Company [(1890) 25 QBD

2581].       Thus, the police is justified in acting in

adherence to Ext.B2 order, irrespective of the fact

that the elephant is one owned by Devaswom and reared

and loved by Hindus in that locality. Coming to the

instant case, it is needless to say, threat to life of

A.S.Nos.541 & 550 of 1998        :31:



human beings, caused by a dangerous animal like

elephant is a nuisance as well as public disorder,

warranting discharge of duty imposed on the police

officer under the aforesaid provisions of the Kerala

Police Act and the Police Manual.

        31. In our view, there cannot be a hard and fast

rule to obviate a dangerous situation wherein the life

of human beings is under the threat of a violent

dangerous animal. It is not just and proper to sit on

an arm chair, after two decades, to think about the

right measures which could have been taken by the

police, to obviate such a dangerous situation.      In a

dangerous situation where the right to life of human

beings is under the threat of a dangerous animal, there

may have several methods. One may suggest one way

and the other would suggest a different way, after the

incident.          After 20 years, neither the court nor

anybody else could suggest the right way in which the

threat could have been obviated, in the circumstance

prevailed then. In a crucial situation where the entire

people in a locality is apprehensive of danger caused

by a dangerous animal, it is obligatory on the part of

A.S.Nos.541 & 550 of 1998          :32:



the public servant who is entrusted with duty to

protect the life and property of the human beings to

think about the way in which the life of the people can

be protected.            Even if the act done was found not

proper, it is only an error in judgment, if the act was

done with good faith under the permission granted by

the competent authority and he cannot be held liable

for the same.

      32. Here arises the question, what is the order of

priority to be given by a public servant in a dangerous

situation wherein the right to life of the human beings

is under the threat caused by a dangerous animal.

      33. We are mindful of various laws governing

protection of animals, which are in abundance. We have

enacted various laws to preserve and protect animals,

including the Wild Life (Protection) Act, 1972 and the

Prevention of Cruelty to Animals Act, etc.          But, we

find that the Constitution of India is the prime

enactment which governs life of human beings of this

country and the fundamental right guaranteed under

the Constitution stands above the various provisions

under different laws, enacted for the protection of

A.S.Nos.541 & 550 of 1998      :33:



animals, in the order of priority, in case of conflict.

All other laws are made subservient to accomplish the

right to the life guaranteed under the Constitution. If

that be so, the public servant, who is on duty, to

prevent or obviate danger to human life caused by a

dangerous animal, must give preference to protect life

of human beings, which stands guaranteed under the

Constitution, rather than the life of an animal. He can

shoot the animal to save a human life, if he is

empowered and authorised to use the firearm, under

law; but, the circumstance must justify the shooting of

the animal. In other words, if he has no other way to

save the life of human beings, nothing wrong in

shooting the animal so as to kill the animal in order to

save a human life, whatever be the nature of animal,

even if it is a lion. In such situations, we have no

hesitation to hold that preference must be given to

human beings rather than animals. A public servant

shall never be a coward or a doubting Thomas, in such

dangerous circumstance where human life is in peril.

      34.      How the circumstances then prevailed could

be assessed judicially? We are of the opinion that the

A.S.Nos.541 & 550 of 1998          :34:



circumstances must be assessed with the mind of an

ordinary prudent man. The act of shooting in a given

circumstance must be tested with the mind of an

ordinary prudent man and in that test if the ordinary

prudent        man       would believe  that in  the  given

circumstance there was no way other than killing the

animal to save the human life, the public servant must

be justified in shooting the animal, if he is empowered

and authorised to use the firearm, under law or orders

passed thereunder. We are unable to weigh human

beings and animals equally, in a life and death

situation.          The right to life of human beings is the

paramount right that enshrined in the Constitution of

India, and all other laws are made subservient to it,

according to us.

      35.     We find force in the defendants' contention

that if the amok elephant crossed the river, entered

into the fishermen colony and killed more people or

caused danger to the property, in that midnight, the 1st

defendant would have been personally responsible for

the failure to discharge duty assigned on him,

particularly under Ext.B2, which was on his hand from

A.S.Nos.541 & 550 of 1998    :35:



4.30 p.m. onwards.

      36. In the instant case, we find that the shooting

was done with good faith on the apprehension that, if

the violent elephant reaches at the opposite side of

the river and enters into the fishermen colony, at the

midnight, the consequences would be disastrous, and

they would be held liable for such an event,

particularly, when Ext.B2 order granted permission to

them to shoot the elephant, to protect life and

property of people.

      37. In the above analysis, we find that the act of

shooting done by the defendants is an act done in good

faith, in pursuance of the duty imposed and authority

conferred on them by the provisions of the Police Act

and Chapter X of the Cr.P.C. So, they are not liable for

the aforesaid act done in good faith and they will get

protection under Section 64(1) and (2) of the Police Act

and Section 142(3) of the Cr.P.C. and the third question

is answered accordingly. It follows that the suit itself

was not maintainable under Section 64(1) of the Police

Act and Section 142(3) of the Cr.P.C. and the first

question is also answered accordingly.

A.S.Nos.541 & 550 of 1998                 :36:



      38.      Here arises another question: whether the

court below is justified in finding that the suit is not

barred by limitation under Section 64(3) of the Police

Act. Let us examine the relevant provision of sub-

section (3) of Section 64 , which reads as follows:

                "No court shall take cognizance of any suit or complaint, in

          respect of any offence or wrong alleged to be committed or done

          by a Magistrate, police officer or other person on account of any

          act done in pursuance of any duty imposed or authority conferred

          on him by this Act or any other law for the time being in force or of

          any rule, order or direction lawfully made or given thereunder

          unless the suit or complaint is filed within six months of the date

          on which the offence or wrong is alleged to have been committed

          or done."


      39. Admittedly, the suit was filed after six months

from the date on which the elephant was shot dead.

But, the court below rejected the plea of limitation on

a finding that even though the suit was filed after six

months, since the act of shooting was not in pursuance

of any duty imposed or authority conferred to the

defendants under the Police Act, the suit was not

barred by limitation.                After considering the entire

sequences of events and circumstances thereunder, we

have already found that the act of shooting was done

in pursuance of duty imposed and authority conferred

A.S.Nos.541 & 550 of 1998         :37:



on the appellant under the Kerala Police Act and the

Criminal Procedure Code; more particularly, under

Ext.B2 order passed under Chapter X of the Cr.P.C. In

that view of the           matter,   the court below is not

justified in rejecting the plea of limitation. We find

that the suit is barred by limitation under Sec. 64(3) of

the Police Act as the suit was filed after six months

from the date of shooting and consequential death of

the elephant.

      40. The learned counsel for the defendants further

submits that the act of shooting was done in exercise

of authority and power granted to the public servants

for maintaining public order and thereby the said act

is immune from suit for damages. In other words, the

said act and the consequence thereof will get the

protection of sovereign immunity. In support of the

argument, the learned counsel for the appellant cited

State of Rajasthan v. Mst. Vidhyawati and another [AIR

1962 SC 933] , Kasturi Lal v. State of U.P. [AIR 1965 SC

1039] and         Renadevan v. Ezhupunna Grama Panchayat

[2010 (1) KLT 644].

      41.      Per contra, the learned counsel for the

A.S.Nos.541 & 550 of 1998                    :38:



respondents submits that the concept of sovereign

immunity has been vanished from the legal arena and

now no public servant can claim the protection of

sovereign immunity for the act done by him, while in

discharge of duty.                  The learned counsel cited the

decision of this Court in Renadevan v. Ezhupunna

Grama Panchayat [2013 (1) KLT 103], to fortify his

arguments.

      42.       Let us have a survey of judicial precedents

and the law settled by the Apex Court, in this respect.

In 1965 SC 1039, the Apex Court held as follows:

                "(21) Thus, it is clear that this case recognises a material

              distinction between acts committed by the servants

              employed by the State where such acts are referable to

              the exercise of sovereign powers delegated to public

              servants, and acts committed by public servants which are

              not referable to the delegation of any sovereign powers. If

              a tortious act is committed by a public servant and it gives

              rise to a claim for damages, the question to ask is: was the

              tortious act committed by the public servant in discharge of

              statutory functions which are reference to and ultimately

              based on, the delegation of the sovereign powers of the

              State to such public servant?         If the answer is in the

              affirmative, the action for damages for loss caused by such

              tortuous act will not lie, on the other hand, if the tortuous

              act has been committed by a public servant in discharge of

              duties assigned to him not by virtue of the delegation of

              any sovereign power, an action for damages would lie.

              The act of the public servant committed by him during the

A.S.Nos.541 & 550 of 1998                   :39:


              course of his employment is, in this category of cases, an

              act of a servant who might have been employed by a

              private individual for the same purpose. This distinction

              which is clear and precise in law, is sometimes not borne in

              mind in discussing questions of the State's liability rising

              from tortious acts committed by public servants.        That is

              why the clarity and precision with which this distinction was

              emphasised by Chief Justice Peacock as early as 1861

              has been recognized as a classic statement on this

              subject."


      43. Further, in N. Nagendra Rao & Co. v. State of

A.P. [(1994) 6 SCC 205], the Apex Court held as given

below:

              "No civilized system can permit an executive to play with the

              people of its country and claim that it is entitled to act in any

              manner as it is sovereign. The concept of public interest has

              changed with structural change in the society. No legal or

              political system today can place the State above law as it is

              unjust and unfair for a citizen to be deprived of his property

              illegally by negligent act of officers of the State without a

              remedy. From sincerity, efficiency and dignity of State as a

              juristic person, propounded in nineteenth century as sound

              sociological basis for State immunity the circle has gone

              round and the emphasis now is more on liberty, equality and

              the rule of law. The modern social thinking of progressive

              societies and the judicial approach is to do away with

              archaic State protection and place the State or the

              Government on a par with any other juristic legal entity. Any

              watertight compartmentalization of the functions of the State

              as "sovereign and non-sovereign" or "Governmental and

              nonGovernmental" is not sound. It is contrary to modern

              jurisprudential thinking. The need of the State to have

              extraordinary powers cannot be doubted. But with the

A.S.Nos.541 & 550 of 1998                    :40:


              conceptual change of statutory power being statutory duty

              for sake of society and the people the claim of a common

              man or ordinary citizen cannot be thrown out merely

              because it was done by an officer of the State even though

              it was against law and negligent. Needs of the State, duty of

              its officials and right of the citizens are required to be

              reconciled so that the rule of law in a Welfare State is not

              shaken. Even in the "financial instability of the infant

              American States rather than to the stability of the doctrine's

              theoretical foundation", or because of "logical and practical

              ground", or that "there could be no legal right as against the

              State which made the law" gradually gave way to the

              movement         from,   "State    irresponsibility  to   State

              responsibility". In Welfare State, functions of the State are

              not only defence of the country or administration of justice

              or maintaining law and order but it extends to regulating and

              controlling the activities of people in almost every sphere,

              educational, commercial, social, economic, political and

              even marital. The demarcating line between sovereign and

              non-sovereign powers for which no rational basis survives

              has largely disappeared. Therefore, barring functions such

              as administration of justice, maintenance of law and order

              and repression of crime etc. which are among the primary

              and inalienable functions of a constitutional Government,

              the State cannot claim any immunity. The determination of

              vicarious liability of the State being linked with negligence of

              its officers, if they can be sued personally for which there is

              no dearth of authority and the law of misfeasance in

              discharge of public duty having marched ahead, there is no

              rationale for the proposition that even if the officer is liable

              the State cannot be sued. The liability of the officer

              personally was not doubted even in Viscount Canterbury.

              But the Crown was held immune on doctrine of sovereign

              immunity. Since the doctrine has become outdated and

              sovereignty now vests in the people, the State cannot claim

A.S.Nos.541 & 550 of 1998                  :41:


              any immunity and if a suit is maintainable against the officer

              personally, then there is no reason to hold that it would not

              be maintainable against the State." (emphasis supplied)


      44. The proposition that can be culled out from

the above decision is that the public servant will get

protection under sovereign immunity provided that

the act was done with good faith, in discharge of

official duty, delegated to him by the sovereign,

pertaining to maintenance of law.

      45. The learned counsel for the respondents drew

our attention to the decision of this Court in

Renadevan 's case (supra) and contended that in view of

the aforesaid decision of this Court the appellants

herein will not be entitled to get protection under the

doctrine of sovereign immunity.

      46. We have meticulously gone through the above

decision wherein the facts are entirely different.

There, a young lawyer while riding his motorcycle in

the midnight was intercepted by Home Guards by

stretching and waving their 'lathi' in front of his head.

When he fell down, they cane-charged him brutally and

in that assault the lawyer had lost his five teeth.

Thus, apparently, the act done by the Home Guards can

A.S.Nos.541 & 550 of 1998                  :42:



never be treated as an officially authorised act

delegated by the sovereign. The case of the victim was

that the illegal action of police is an infringement of

his right to life guaranteed under Article 21 of the

Constitution of India.

      47.       All acts done by the public servant in

discharge of duty pertaining to                              law and order

delegated to him by the sovereign will not get

protection           under      sovereign        immunity,           and   that

protection is also neither unfettered nor unbridled.

The Apex Court has made a distinction in this respect

in N. Nagendra Rao's case (supra) as given below:

           "A law may be made to carry out the primary or inalienable

           functions of the State. Criminal Procedure Code is one

           such law. A search or seizure effected under such law could

           be taken to be an exercise of power which may be in

           domain of inalienable function. Whether the authority to

           whom this power is delegated is liable for negligence in

           discharge of duties while performing such functions is a

           different matter. But when similar powers are conferred

           under other statute as incidental or ancillary power to carry

           out the purpose and objective of the Act, then it being an

           exercise of such State function which is not primary or

           inalienable, an officer acting negligently is liable personally

           and the State vicariously. Maintenance of law and order or

           repression of crime may be inalienable function, for proper

           exercise of which the State may enact a law and may

           delegate its functions, the violation of which may not be

A.S.Nos.541 & 550 of 1998                   :43:


           sueable in torts, unless it trenches into and encroaches on

           the fundamental rights of life and liberty guaranteed by the

           Constitution. But that principle would not be attracted where

           similar powers are conferred on officers who exercise

           statutory powers which are otherwise than sovereign

           powers as understood in the modern sense. The Act deals

           with persons indulging in hoarding and black marketing.

           Any power for regulating and controlling the essential

           commodities and the delegation of power to authorised

           officers to inspect, search and seize the property for

           carrying out the object of the State cannot be a power for

           negligent exercise of which the State can claim immunity.

           No constitutional system can, either on State necessity or

           public policy, condone negligent functioning of the State or

           its officers."                         (emphasis supplied)

           "No action will lie for doing that which the

           Legislature has authorised, if it be done without

           negligence, although it does occasion damage to

           anyone; but an action does lie for doing that which

           the Legislature has authorised if it be done

           negligently."


      48. The distinction made by the Apex Court is that

where the act was done negligently and stretched into

and encroached the fundamental right to life and

liberty guaranteed under the Constitution, the public

servant will not get privilege of sovereign immunity,

even if the act was done on official duty for the

maintenance of law and order.                           In the aforesaid

decision cited by the                  counsel in Renadevan's case

A.S.Nos.541 & 550 of 1998        :44:



(supra), the act done by the public servant was an

illegal, unauthorised and negligent act that infringed

the fundamental right to life of a citizen. The said act

was not delegated to him by the sovereign. So the said

case will come under the distinction made by the Apex

Court in Nagendra Rao's case (supra).         But, in the

instant case, there is no case of the breach of

fundamental right.         Here the allegation is that the

decision taken by the respondent was an error in

judgment resulted in monetary loss only.              The

respondents have no case that the appellants have

acted negligently or without power or authority

delegated to him by the sovereign. The only allegation

is that the decision taken by the appellant was not

proper in the given situation. Therefore, we find that

the decision in Renadevan 's case cannot be applied to

the instant case.




Resolution

      49. In the light of the aforesaid discussions, we

have no hesitation to hold that the act of shooting was

an act done with good faith, while in discharge of

A.S.Nos.541 & 550 of 1998      :45:



official duty, pertaining to maintenance of law and

public order, delegated to him.        So, even if the

decision taken by the appellants was an erroneous

decision, they will get the protection and privilege

under the doctrine of sovereign immunity.

      50.      We conclude as follows:  Where a public

servant acting in discharge of duty commits an error

in judgment and causes death of a dangerous animal,

which, he, in good faith, believes to be lawful and

necessary for the due discharge of his duty, as public

servant, to save a human life, he cannot be held liable

under the Law of Torts for the death of that animal.

      51. To sum up, in the instant case, (1) the suit was

not maintainable under Sec.64(1) and (2) of the Police

Act. (2) The suit was barred by limitation under Sec. 64

(3) of the Police Act. (3) The act of shooting of the

elephant which culminated in death of the elephant

will get the privilege and protection under the

doctrine of sovereign immunity. (4). The appellants

were not liable to compensate the respondents. The

court below ought to have dismissed the suit.

      52.      Consequently, the impugned judgment and

A.S.Nos.541 & 550 of 1998           :46:



decree will stand set aside and both the Appeal Suits

will stand allowed.

Observation

      53.     Before       parting  with    this  judgment, we

express        our deep concern and anguish about the sad

plight         of       the   captive elephants      and   the

recurring             sad    demise of several persons and

mahouts,         caused     by   the   captive  elephants,  in

connection            with   the   festival   of the temples/

Mosques.               Years back,      elephant was used for

carrying,            dragging and pulling heavy loads like

timber etc.           But, now, the usage of elephant for that

purpose         is     seen   almost    extinguished  by   the

introduction of            modern equipment and electronic

devices.           Now,     the  elephants    are being mainly

used           for       processions or exhibitions in the

festival of the temples/Mosques or rallies and such

usage is         rampant. It     is not     disputed      that

the       elephant         is   a   dangerous   wild   animal

and      they        are always    unfriendly and unfamiliar

with      environment        and    ecology    outside    the

A.S.Nos.541 & 550 of 1998        :47:



jungle and captive elephants are subjected to fear and

pain in the process of taming to make them to obey

the will and wish of human beings and subsequent usage

thereafter. We are of the opinion that processions and

exhibitions exposing captive elephants for a long time

in a hostile atmosphere tantamount to cruelty to the

elephants. We notice that the Kerala Captive Elephants

(Management and Maintenance) Rules, 2003 is not

sufficient to prevent cruelty to the captive elephants

in the absence of penal provisions therein, in case of

violation.         Therefore, it  is  high time   for  the

legislature to act for liberating this poor wild animal

from the processions and exhibitions in connection

with the festival of the        temples/Mosques and allow

them to live freely in jungles.

                                              Sd/-
                                        V.CHITAMBARESH,
                                             Judge.


                                              Sd/-
                                           K.HARILAL,
                                              Judge.
okb/Nan