ORDER
R.R. Prasad, J.
1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceeding of Complaint Case No. C1/471 of 2006, pending in the Court of Judicial Magistrate, 1st Class, Jamshedpur including the order dated 3.2.2007 holding therein that the prima facie case is made out against the petitioner under Section 11 (1)(a)(c)(e)(f)(g)(h)(i) and (1) of the Prevention of Cruelty to Animals Act and thereby issued summon to the petitioner to face trial.
2. Before adverting to the submission advanced on behalf of the parties, case of the complainant needs to be stated hereunder:
The complainant-opposite party No. 2, President of Jamshedpur Animal Welfare Society, an NGO recognized by Animal Welfare Board of India Chennai lodged the case on 17.4.2006 alleging therein that a legal notice had been issued to the petitioner, Vice-President of M/s. Tata Motors intimating therein that under his instruction Telco Town Health Department, has been killing stray dogs around Telco Colony but he did not get any response and the other day, i.e., 25.12.2005 an information was received that four persons are catching stray dogs through Iron Hands Tongs and are being kept in a Van of M/s. Tata Motors and upon it he came over there and saw four persons are catching stray dogs through Iron Hands Tong and they on being asked by the complainant told that they under the instruction of his employer, namely, M/s. Tata Motors are doing that. Upon it, he had talk with the General Manager of M/s. Tata Motors. It has been further alleged that one representative of the Town Division of M/s. Tata Motors had asked for submission of the proposal for sterilization of stray dogs and thereupon it was submitted but none of the authority of M/s. Tata Motors did make any response to it. It has been alleged that in the past also, M/s. Tata Motors had killed stray dogs at number of occasions by throwing poisonous meat in the locality resulting into mercilessly killing of the dogs and when eco-friendly birds ate flesh of the dead body they also died and thereby payer was made to take cognizance of the offence under Section 11 of the Prevention of Cruelty to Animals Act and also under Section 429 of the Indian Penal Code.
3. Thereafter statement of the complainant was recorded on solemn affirmation and the statement of the witnesses were also recorded in course of enquiry. Thereupon the Court did find that prima facie case is made out under Section 11 (1)(a)(b)(c)(e)(f)(g)(h)(i) and (1) of the Prevention of Cruelty to Animals Act but at the same time it was also held that nothing is there to proceed against the accused persons for the offence punishable under Section 429 of the Indian Penal Code and, accordingly, order was passed to issue summon but when the summons were issued to the petitioner and other accused, they were called upon to face trial not for the offence under Section 11 (1)(a)(b)(c)(e)(f)(g)(h)(i) and (1) of the Prevention of Cruelty to Animals Act but also under Section 429 of the Indian Penal Code, though no cognizance had been taken for the offence under Section 429 of the Indian Penal Code by the learned Court.
4. Being aggrieved with that order, the petitioner has preferred this application.
5. Learned Counsel appearing for the petitioner submitted that as per the case of the complainant the alleged occurrence took place on 25.12.2005 whereas the complaint has been lodged on 17.4.2006, i.e. beyond the period of three months and as such leaned Court below should not have taken cognizance for the alleged offence of Prevention of Cruelty to Animals Act as Section 36 of the Prevention of Cruelty to Animals Act, 1960 put an embargo of lodgement of case under the aforesaid Act after three months of the occurrence. It was also submitted that the complainant nowhere has alleged in the complaint that the dogs were being caught at the instance of this petitioner but as the petitioner is Vice President of M/s. Tata Motors, he has been made accused and the Court below also without applying his judicial mind took cognizance of the offence mechanically. Lastly, it was submitted that the trial Court has never took the cognizance of the offence under Section 429 of the Indian Penal Code but still the petitioner and other accused persons have been summoned to face trial for the offences under the Prevention of Cruelty to Animals Act and also under Section 429 of the Indian Penal Code, though in the facts and circumstances of the case, there would be no application of Section 429 of the Indian Penal Code and thus, the impugned order is fit to be set aside as there would be abuse of the process of law if, in the facts and circumstances stated above, the petitioner is allowed to face rigour of the trial.
6. As against this learned Counsel for the opposite party No. 2-complainant submitted that it is well settled proposition of law that if the complaint does constitute offence, the Court in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would always be hesitant in quashing the entire proceeding and in this case allegations are there which do constitute offences under Section 11 (1)(a)(b)(c)(e)(f)(g)(h)(i) and (1) of the Prevention of Cruelty to Animals Act and also under Section 429 of the Indian Penal Code and. therefore, this application is fit to be dismissed. Coming to the point relating to the offence under Section 429 of the Indian Penal Code it be stated that though the complainant under the allegations made in the complaint petition made prayer to take cognizance of the offence under Section 11 (1)(a)(b)(c)(e)(f)(g)(h)(i) and (I) of the Prevention of Cruelty to Animals Act and also under Section 429 of the Indian Penal Code but the Court did not find any ground to proceed with the case so far offence under Section 429 of the Indian Penal Code is concerned and hence he did not take any cognizance of the said offence, still the petitioner has been summoned to face trial not only for the offence under Section 11 (1)(a)(b)(c)(e)(f)(g)(h)(i) and (1) of the Prevention of Cruelty to Animals Act but also under Section 429 of the Indian Penal Code and therefore, any insertion of the offence under Section 429 of the Indian Penal Code in the summon under the facts and circumstances stated above is an error which may have crept in inadvertently but otherwise also in the fact of allegation there would be no application of Section 429 of the Indian Penal Code. The said provision 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.
7. From its reading it is apparent that the most significant words are the opening words of the section which says whoever commits mischief by killing” and thus “mischief appears to be an essential ingredient for attracting the offence and the mischief has been defined under 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.
From its bare reading it does appear that for constituting offence of mischief the essential ingredient would be the destruction of the property. Therefore, if no one has any property or right in any animal, the killing of that animal does not come within the purview of Section 425 of the Code and thus, in the facts and circumstances of the instant case where the complainant has never come with the case that any dog over which somebody has right, has been caught, rather according to complaint, only stray dogs have been caught that too where it has never been alleged to have been poisoned, maimed or rendered useless there would be no application of Section 429 of the Indian Penal Code.
8. Coming to other aspect of the matter, I do find that it is the case of the complainant that the complainant when came to know that some persons are catching hold of stray dogs near the office of M/s. Tata Motors, he reached over there and saw four persons catching hold of stray dogs with the Iron Hands Tong but the complainant nowhere has said that those stray dogs were being caught at the instance of the petitioner, Vice-President of M/s. Tata Motors whereas according to the case of the complainant itself that when the persons who were engaged in catching hold of stray dogs disclosed that they arc doing that under the instruction of the employer of M/s. Tata Motors, the complainant had talk with the General Manager (Town) of M/s. Tata Motors and not the petitioner, still the petitioner has been made accused perhaps on the premise that earlier to that, the complainant had sent legal notice to the petitioner disclosing therein that at his instance of Telco Town Health Department certain employee has been killing stray dogs. But even if the said notice has been issued for any occurrence which had taken place in the past, any prosecution of the petitioner where there has been absolutely no allegation of committing any offence is certainly bad and in that event, any continuation of the proceeding against the petitioner would amount to abuse of process of law.
9. Coming to third limb of the argument it be noted that the complaint was lodged on 27.4.2006 whereas alleged occurrence took place on 25.12.2005 which is beyond the period of three months whereas Section 36 of the Prevention of Cruelty to Animals Act puts complete embargo for bringing prosecution under the aforesaid Act after three months. The said provision reads as follows:
36 a limitation of prosecution-a prosecution for an offence against this act shall not be constituted after the expiration of the three months from the date of commission of the offence.
10. Therefore, Institution of the case for commission of offence under the Prevention of Cruelty to Animals Act was itself bad in view of the provision as contained in Section 36 of the said Act. Thus, regard being had to all these aspects of the matter dealt with hereinabove cognizance taken against the petitioner seems to be quite bad and, accordingly, the entire proceeding of Complaint Case No. C1/471 of 2006, pending in the Court Judicial Magistrate, 1st Class, Jamshedpur including the order dated 3.2.2007 summoning the petitioner to face trial is hereby quashed. In the result this application is allowed.