JUDGMENT : Rule. Rule made returnable forthwith. Heard by consent of the learned Counsel appearing for the parties. 2. By this writ petition, the petitioner has challenged order dated 28-03-2018 passed by the Court of Judicial Magistrate First Class, Nagpur, whereby the custody of cattle has been granted on Supratnama to the respondent no.2. 3. On 16-02-2018, a First Information Report (FIR) was registered against the respondent no.2 and two others under the provisions of the Prevention of Cruelty to Animals Act, 1960 read with the provisions of the Motor Vehicles Act, 1988. The allegation against the respondent no.2 in the said FIR was that 18 cattle allegedly belonging to him were being transported in a vehicle in a cruel manner. This was in violation of Rule 56(c) of the Transport of Animals Rules, 1978 framed under the aforesaid Act of 1960, whereunder only up to six animals could have been transported in the vehicle. The petitioner is a registered trust, which qualifies to be a pinjrapole or an animal shelter for such cattle. Upon registration of the aforesaid FIR, the Police handed over the custody of the 18 cattle to the petitioner trust. 4. Therefore, before the Magistrate, applications were moved by both the petitioner trust and the respondent no.2 (original accused) for custody of the said cattle. By the impugned order dated 28-03-2018, the Magistrate allowed the application of the respondent no.2 and dismissed that of the petitioner trust, thereby releasing the custody of the cattle in favour of respondent no.2. The Magistrate held that the respondent no.2 being the owner of the cattle was entitled to have their custody and that the provisions of Section 29 of the Act would apply to the respondent no.2 only after he stood convicted of the offences for which FIRs were registered against him in other cases. It was held that mere filing of FIR was not sufficient to deprive respondent no.2 of custody of the cattle. 5. While issuing notice on 09-04-2018 in this writ petition, this Court granted ad interim stay of the impugned order whereby the custody of the cattle continued with the petitioner trust. The respondent no.2 was served with notice issued on this writ petition but he chose not to appear before this Court. 5. While issuing notice on 09-04-2018 in this writ petition, this Court granted ad interim stay of the impugned order whereby the custody of the cattle continued with the petitioner trust. The respondent no.2 was served with notice issued on this writ petition but he chose not to appear before this Court. In fact, on 03-07-2018, the following order was passed by this Court “This petition was adjourned on 12.06.2018 as there was no representation on behalf of the contesting respondent no.2 although, the said respondent has been served. Even today, when the petition is called out, there is no representation on behalf of the said respondent. Hence, list the petition on 17.07.2018 as last chance. It is made clear that if there is no representation on behalf of respondent no.2 on the next date, this Court shall proceed to finally dispose of this writ petition.” 6. None appeared on behalf of respondent no.2 today. Accordingly, the learned Counsel appearing for the petitioner trust and the learned APP for the respondent-State have been heard. It is pointed by Shri Khajanchi, learned Counsel appearing on behalf of the petitioner trust that the Magistrate failed to appreciate the effect of Section 35(2) of the Act of 1960, wherein it is provided that the Magistrate has power to direct that the animals in respect of whom a prosecution for an offence under this Act has been instituted shall be treated and cared for in an infirmary, until it is fit to preform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole (like the petitioner trust herein). It was submitted that emphasis only on Section 29 of the Act of 1960 placed by the Magistrate was erroneous. 7. Section 35(2) of the Act of 1960, reads as follows : “35. Treatment and care of animals.(1) The State Government may, by general or special order, appoint infirmaries for the treatment and area of animals in respect of which offences against this Act have been committed, and may authorize the detention therein of any animal pending its production before a Magistrate. Treatment and care of animals.(1) The State Government may, by general or special order, appoint infirmaries for the treatment and area of animals in respect of which offences against this Act have been committed, and may authorize the detention therein of any animal pending its production before a Magistrate. (2) The Magistrate before whom a prosecution for an offence against this Act has been instituted may direct that the animal concerned shall be treated and cared for in an infirmary, until it is fit to preform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole, or, if the veterinary office in charge of the area in which the animal is found or such other veterinary office as may be authorized in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.” 8. In the present case, a perusal of the impugned order passed by the Magistrate shows that not only has the Magistrate overlooked the aforesaid provision of the Act of 1960, but the Magistrate has proceeded on the basis that the respondent no.2 was the owner of the cattle in question. Bare perusal of the FIR shows that there were no documents or licence produced by the accused to show that he was the owner of the said cattle. Therefore, it becomes obvious that the impugned order passed by the Magistrate is unsustainable. 9. It is further pointed out on behalf of the petitioner trust that further Rules have been framed in this regard. Rule 3 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, is relevant for the present case, which reads as follows : “3. Custody of animals pending litigation. 9. It is further pointed out on behalf of the petitioner trust that further Rules have been framed in this regard. Rule 3 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, is relevant for the present case, which reads as follows : “3. Custody of animals pending litigation. When an animal has been seized under the provision of the Act or the rules made thereunder (a) the authority seizing the animal shall ensure health inspection, identification and making such animal, through the jurisdictional veterinary officer deployed at Government Veterinary Hospital of the area and marking may be done by ear tagging or by chipping or by any less irksome advance technology but marking by not branding, cold branding other injurious marking shall be prohibited (b) the magistrate may direct the animal to be housed at an infirmary, pinjrapole, SPCA, Animal Welfare Organization or Gaushala during the pendency of the litigation.” 10. A perusal of Clause( b) of Rule 3 quoted above shows that the Magistrate has also power to direct that an animal may be housed at an infirmary, pinjrapole, SPCA, Animal Welfare Organization or Gaushala during the pendency of the litigation. In the present case, it is undisputed that the petitioner trust is a Gaushala for the welfare of cattle. This is an additional reason to demonstrate the error committed by the Magistrate while passing the impugned order. 11. Reliance was also placed on the judgment of this Court in the case of Jivdaya Pashupakshi Saurakshan and Sanwardhan Sanstha vs. State of Maharashtra and another, reported at 2009 All MR (Cri) 3230, on behalf of the petitioner trust to contend that in similar circumstances, this Court granted order continuing the custody of such animals with an origination similar in its objectives like the petitioner trust herein. It was noted by this Court that while passing order in regard to custody of animals when a case is launched under the provisions of the said Act, the Court should make interim arrangement so as to see that till disposal of the case, cattle are kept in the custody of a person or authority, which would be able to take appropriate care of the animals. In the application before the Magistrate, the petitioner trust placed on record its capacity to take care of the cattle. In the application before the Magistrate, the petitioner trust placed on record its capacity to take care of the cattle. There is nothing on record to dispute the said assertion and there is also no material to show that proper care of 18 cattle in the present case is not being taken by the petitioner trust. 12. In view of the above, this petition is allowed. The impugned order passed by the Magistrate is set aside and it is directed that 18 cattle, custody of whom is with the petitioner trust, shall continue with the petitioner trust during the pendency of the prosecution pursuant to FIR dated 16-02-2018. 13. As the petition is allowed, Criminal Application (APPW) No.89 of 2018, does not survive and the same also stands disposed of. 14. Rule is made absolute in above terms.