Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 357 (JHR)

A. P. Arya v. State of Jharkhand

2014-03-06

R.R.PRASAD

body2014
Order : This application has been filed for quashing of the order dated 19.03.2008 passed in Complaint Case No.361 of 2007 whereby and whereunder cognizance of the offence punishable under Section 429 of the Indian Penal Code and also under Section 11 of the Prevention of Cruelty to Animal Act has been taken against the petitioner. 2. Before adverting to the submission advanced on behalf of the parties, the case of the complainant needs to be taken notice of. 3. The complainant, President of Jamshedpur Animal Welfare Society, who happens to be the animal right activist fighting for the right of the mute and helpless animals, lodged a case alleging therein that since childhood, he had seen brutal killing of stray dogs at Jamshedpur. Number of occasions, authorities of TISCO Ltd., Jamshedpur were reminded to stop inhuman killing of stray dogs, but they never cared for. Rather went on catching stray dogs by the process during which collar bone of the dogs invariably got fractured resulting into their death. 4. Further it has been alleged that on the pretext of sterilizing stray dogs, they are catching stray dogs in brutal manner and in that process, dogs got injured and that they are doing so in order to save the operation cost of sterilization of stray dogs. 5. The matter was informed to the petitioner, who happens to be the President of Jamshedpur Kannel Club but he did not do anything which is indicative of the fact that he is in connivance with the officials of TISCO/JUSCO promoting killing of stray dogs. 6. On such complaint, cognizance of the offence punishable under Section 429 of the Indian Penal Code and also under Section 11 of the Prevention of Cruelty of Animal Act has been taken against the order, vide order dated 19.03.2008 which is under challenge. 7. Mr. V.P. Singh, learned Sr. counsel appearing for the petitioner submits that the petitioner has never been alleged to have acted in any manner in the process of killing or catching of the stray dogs, rather the allegation what has been made against the petitioner is that the matter concerning illegal activities on the part of the officials of TISCO/JUSCO of killing and catching stray dogs, was informed to this petitioner being President of Kannel Club but he did not do anything in this regard. But that allegation would not fasten the petitioner with any criminality involved in the case. 8. In this regard, learned counsel appearing for the petitioner by referring to the provision as contained in Section 429 of the Indian Penal Code submits that only the person, who does any act in killing or catching of the cattles, can be held responsible for the offence under Section 429. 9. Here in the instant case, no other act except the act stated above has been alleged against he petitioner so as to be charged with the allegation of killing or catching or maiming the stray dogs. Similar is the situation with respect to offence under Section 11 of the Prevention of Cruelty to Animals Act which also stipulate that persons willfully or unreasonably administers any injurious drug or injurious substance or willfully and unreasonably cause or attempts to cause any such drug or substance to be taken by the animal for its killing, he would be responsible but since no allegation has been levelled against the petitioner attracting offence either under the Indian Penal Code or Prevention of Cruelty to Animals Act, the petitioner cannot be prosecuted for those offences and thereby the court has committed illegality in taking cognizance of the offences as aforesaid. 10. As against this, learned counsel appearing for the opposite party no.2 submits that specific allegation has been made that information with respect to killing of stray dogs were given to the petitioner, who at the relevant point of time was the President of Kannel Club but he did not do anything so as to prevent it and therefore, passive involvement of the petitioner can easily be presumed. 11. Having heard learned counsel appearing for the parties, it does appear that it is the case of the complainant that when the complainant did find that stray dogs are being caught or being killed in cruel manner, a complaint was lodged wherein it has been stated that the persons at the instance of TISCO/JUSCO are catching hold stray dogs for killing it. So far this petitioner is concerned, it has been alleged that information of such killing was given to him but he did not do anything to prevent it. 12. So far this petitioner is concerned, it has been alleged that information of such killing was given to him but he did not do anything to prevent it. 12. The question does arise as to whether on such allegation one would be prosecuted under Section 429 of the Indian Penal Code or even under Section 11 of the Prevention of Cruelty to Animals Act ? 13. In this respect, I may refer to the provision as contained in Section 429 which reads as follows: “ Mischief by killing or maiming cattle, etc. of any value or any animal of the value of fifty rupees – Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.” 14. From its reading it is apparent that mischief, the significant word is the opening word of the section which says that whoever commits mischief by killing …............... and thus, mischief appears to be essential for attracting offence and mischief has been defined in Section 425 of the Indian Penal Code which reads as under: “Mischief – Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. 15. From its reading, it does appear that for constituting offence of mischief essential ingredients would be destruction of the property. Therefore, if no one has any property or right the killing of that animal does not come within the purview of Section 425 of the Indian Penal Code and thus, in the facts and circumstances of the instant case, the petitioner would not be liable to be prosecuted under Section 429 of the Indian Penal Code. Therefore, if no one has any property or right the killing of that animal does not come within the purview of Section 425 of the Indian Penal Code and thus, in the facts and circumstances of the instant case, the petitioner would not be liable to be prosecuted under Section 429 of the Indian Penal Code. Moreover, it has never been alleged that at the instance of this petitioner, the other persons associated with TISCO/JUSCO caught stray dogs for its killing, rather the allegation what has been made against the petitioner is that when information of killing of stray dogs was given, he did not make any response or did not take any action to prevent it but that allegation does not constitute offence under Section 429 against the petitioner. 16. Coming to other limb of the submission relating to offence under Section 11 of the Prevention of Cruelty to Animals Act, it be stated that Section 11 has been divided in number of the parts but the court while taking cognizance has not spell out as to in which category of Section 11 cognizance has been taken but keeping in view the allegation one may come to the conclusion that the case may fall either under Section 11(c) or under Section 11(l) of the Act. Those provisions read as follows: 11. Treating animals cruelty – (a) if any person……………………… (b) …………………………………………. (c) willfully and unreasonably administers any injurious drug or injurious substance to any animal or willfully and unreasonably causes or attempts to cause any such drug or substance to be taken by any animal; or (d)…………………………………………………………………….. (e)……………………………………………………………………… (f)………………………………………………………………………. (g)………………………………………………………………………. (h)……………………………………………………………………… (i)………………………………………………………………………… (j)………………………………………………………………………… (k)……………………………………………………………………... (l) mutilates any animal or kills any animal (including stray dogs) by using the method or strychnine injection in the heard or in any other unnecessarily cruel manner; or 17. Again I do find that only the person who would be doing act in the manner as has been indicated under clause (c) and (l) would be responsible. Here, I may again reiterate that this petitioner has never been alleged to have done any act either for catching or killing stray dogs. In that event, the petitioner cannot be held liable for those offences as indicated above. 18. Accordingly, the trial court has committed illegality in taking cognizance of the offence against the petitioner. Hence, the order dated 19.03.2008 taking cognizance is hereby quashed. 19. In that event, the petitioner cannot be held liable for those offences as indicated above. 18. Accordingly, the trial court has committed illegality in taking cognizance of the offence against the petitioner. Hence, the order dated 19.03.2008 taking cognizance is hereby quashed. 19. In the result, this application stands allowed. Application allowed.