1 APL 848.26 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION [APL] NO. 848 OF 2026 APPLICANT : Naved Khan Wahid Khan Pathan, Age 24 years, Occu. Student, R/o S/o Wahidkhan Pathan, Ward No.11, Anand Nagar, at Post Mul Dist. Chandrapur, Maharashtra 441 224. VERSUS NON-APPLICANT : The State of Maharashtra, through Police Station Officer Police Station, Pombhurna, Crime No. 79/2022, Dist. Chandrapur Maharashtra. -------------------------------------------------------------------------------------------------- Ms. Priyanka R. Arbat-Awathale, Advocate appointed for the applicant Mrs. H. N. Prabhu, A.P.P. for the non-applicant /State -------------------------------------------------------------------------------------------------- CORAM : M. W. CHANDWANI, J. DATE : OCTOBER 07, 2026. ORAL JUDGMENT: 1. Heard. ADMIT. Taken up for final disposal forthwith by the consent of the learned counsel appearing for the parties. 2. This application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeks quashing of First 2026:BHC-NAG:13695 2 APL 848.26 Information Report (FIR) No. 79/2022 dated 19.09.2022 registered with Police Station, Pombhurna, Dist. Chandrapur for the offences punishable under Section 429 read with Section 34 of the Indian Penal Code, 1860 (IPC), Section 5A of the Maharashtra Animal Preservation (Amendment) Act, 1995 (the Act of 1995) and Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 (the Act of 1960), consequent Charge-sheet No. 21/2023 dated 20.06.2023 and Regular Criminal Case No. 24/2023 pending before the learned Civil Judge, Junior Division and Judicial Magistrate, First Class, Pombhurna. 3. The facts of the case, in brief, are as under : (i) On 19.09.2022, while the complainant Police Constable (PC) Sevanand Alone along with the police party was on patrolling duty in the jurisdiction of Pombhurna Police Station, they received secret information that the cattle are being transported illegally in three four-wheeled vehicles by Velva - Ashta road. Therefore, the complainant along with the police party and the panchas visited Ashta bus stand road and intercepted three vehicles i.e. one Tata ACE bearing registration No. MH-34-BG-7655 and two Mahindra Bolero vehicles bearing registration Nos. MH-30-BD-3202 and MH- 3 APL 848.26 34-AB-7653. While inspecting these vehicles, police party found a total of 9 bullocks, 13 cows and 4 male calves being transported therein and two bullocks were found dead. The police party accordingly seized the cattle along with the vehicles. The applicant is alleged to have been one of the occupants of the seized vehicles. Therefore, on the complaint lodged by PC Sevanand Alone, the aforesaid offences came to be registered against the applicant. 4. Heard Ms. Priyanka Arbat-Awathale, learned counsel appointed for the applicant and Mrs. H. N. Prabhu, learned Additional Public Prosecutor appearing for the non-applicant/State. Perused the charge-sheet. 5. The contention of the learned counsel for the applicant is that no offence under Section 429 of the IPC and Section 5(a) of the Act of 1995 are made out against the applicant and the offence under Section 11(1)(d) of the Act of 1960 is a non-cognizable offence. It is also contended that there is no material on record to show the involvement of the applicant in the crime. Merely because the relevant papers showing ownership of the vehicles and the cattle were not produced, the aforesaid offences came to 4 APL 848.26 registered against the applicant and the other co-accused. 6. Per contra, learned APP appearing for the State objected the application on the ground that two bullocks were found dead and therefore, the offence of mischief punishable under Section 429 of the IPC is made out against the applicant. It is submitted that the applicant and the other co-accused failed to explain the possession of those cattle. Therefore, the offences under the Act of 1996 and the Act of 1960 came to be registered against the applicant and the other co-accused. 7. The offence under Section 429 of the IPC deals with the mischief by killing or maiming animal, which read as under : “429. 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.” Accordingly, from a bare perusal of Section 429 of the IPC, it is apparent that ‘mischief’ is an essential ingredient for attracting 5 APL 848.26 offence under Section 429 of the IPC. 8. The term “Mischief” is defined under Section 425 of the IPC, which reads as under : “425. 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”. Thus, a bare perusal of said Section reveals that a person with an intent to cause wrongful loss or damage to the public or to any person and causes destruction of any property or any such change in any property or destroys or diminishes its value or utility or affects it injuriously, commits ‘mischief’. 9. In order to attract Section 429 of the IPC, the prosecution should demonstrate that the applicant and the co- accused committed mischief, which in my view has not been done by the prosecution. It is said so for two reasons, firstly, the prosecution failed to show any wrongful loss, damage to the public or any other person since nobody has come forward claiming that the cattle belong to them. Rather the facts on record suggest that 6 APL 848.26 the applicant and the co-accused may be the owners of the cattle. Therefore, at first place there is no wrongful loss or damage either to the public or any other person than the applicant and the co- accused. Secondly, there is nothing on record which suggests that death of two bullocks was caused by the applicant. Only because two bullocks were found dead, it cannot be said that those bullocks were killed by the applicant. Therefore, I find support in the argument of the learned counsel for the applicant that the offence under Section 429 of the IPC has not been made out against the applicant. 10. This takes me to the offence under Section 5A of the Act of 1995, which deals with prohibition on transport and export of cow, bull and bullock for slaughter. It reads as under : “5A. Prohibition on transport and export of cow, bull or bullock for slaughter - (1) No person shall transport or offer for transport or cause to be transported cow, bull or bullock from any place within the State to any place outside the State for the purpose of its slaughter in contravention of the of provisions of this Act or with the knowledge that it will be or is likely to be, slaughtered. (2) No person shall export or cause to be exported outside the State of Maharashtra cow, bull or bullock for the purpose of slaughter either directly or through his agent or servant or any other person acting on his behalf, in 7 APL 848.26 contravention of the provisions of this Act or with the knowledge that it will be or is likely to be slaughtered. Thus Section 5A prohibits the transportation or export of a cow, bull or bullock from Maharashtra to a place outside the State for the purpose of slaughter, in contravention of the provisions of the Act or with the knowledge that the animal is likely to be slaughtered. 11. Perusal of the charge-sheet does not reveal any allegation that the applicant was carrying the cattle for slaughtering. Even there is no whisper in the statement of any of the witnesses recorded by police in that respect. Therefore, prima facie, the offence under Section 5A of the Act of 1995 is also not made out. 12. Now, let us deal with the offence under Section 11(1) (d) of the Act of 1960, which reads as under : “11. Treating animals cruelly.— (1) If any person— ... (d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or” ….” 13. In order to appreciate the arguments of the learned counsel for the applicant, it will be appropriate to refer to Section 31 of the Act of 1960, which deals with the cognizable and non- 8 APL 848.26 cognizable offences under the Act of 1960. It reads as under : “31. Cognizability of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence punishable under clause (l), clause (n) or clause (o) of sub-section (1) of section 11 or under section 12 shall be a cognizable offence within the meaning of that Code.” A bare reading of Section 31 of the Act of 1960 reveals that except the offence under clause (l), clause (n) or clause (o) of sub- Section (1) of Section 11 of the said Act, all other offences are non- cognizable. 14. In the present matter after having found that the alleged offence under Section 11(1)(d) of the Act of 1960 is a non- cognizable, the police should not have taken cognizance and investigated in the said offence without the prior permission of the competent Magistrate as contemplated under Section 155(2) of the Code of Criminal Procedure, 1973. Once the cognizable offence goes, the police cannot investigate into a non-cognizable offence without the prior permission or leave of the competent Magistrate. 15. It will be appropriate to refer to the decision of the Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others, reported at 1992 Supp (1) SCC 335 which 9 APL 848.26 reads thus : “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we have given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 10 APL 848.26 (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 16. In view of the above, the case of the applicant is covered by clauses (1), (3) and (4) of para 102 of the decision in Bhajan Lal (supra). 17. Therefore, I find substance in the argument of the learned counsel for the applicant. Considering the facts mentioned above, a case is made out for exercise of the inherent powers of this Court under Section 528 of the BNSS in favour of the applicant. Hence, the following order is passed : ORDER (i) The Criminal Application is allowed. (ii) First Information Report No. 79/2022 dated 19.09.2022 registered with Police Station, Pombhurna, Dist. Chandrapur for the offence punishable under Section 429 read with Section 34 of 11 APL 848.26 the IPC, Section 5A of the Maharashtra Animal Preservation (Amendment) Act, 1995 (the Act of 1995) and Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 (the Act of 1960), consequent Charge-sheet No. 21/2023 dated 20.06.2023 and Regular Criminal Case No. 24/2023 pending before the learned Civil Judge, Junior Division and Judicial Magistrate, First Class, Pombhurna, are quashed and set aside qua the applicant. (iii) The fees of the learned counsel appointed to represent the applicant in this matter be quantified and paid to her as per the Rules. (iv) The application stands disposed of in the above terms. (M.W.Chandwani, J.) Diwale Signed by: DIWALE Designation: Senior Pvt. Secretary Date: 12/10/2026 20:13:37