Mata Indrayani Gaushala Bramhapuri Fata v. The State Of Maharashtra & Ors.

CRI WP NO. 772 OF 2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 772 OF 20251]Mata Indrayani Gaushala Bramhapuri Fata,Bramhangaon,Taluka & Dist. ParbhaniThrough Its Authorized Person - Datta Raghunath PahareAge : 46 years, Occ. Agri.R/o. Village MandhaniTaluka Jinutur, District : Parbhani… Petitioner VERSUS1]The State Of MaharashtraThrough Police Station, NanalpethParbhani, Taluka & District : Parbhani2]Shaikh Yunus Shaikh ChandAge : 54 years, Occu. Agriculturist,R/o. Pedgaon, Tq. & Dist. Parbhani… Respondents …•Mr. Shrimant Mundhe, Advocate for the Petitioner•Mr. A. S. Shinde, APP for Respondent No. 1 - State•Mr. Saeed S. Shaikh, a/w Mr. Sidhesh V. Jadhwar, Advocates forRespondent No. 2…CORAM :MEHROZ K. PATHAN, J.RESERVED ON:11.02.2026PRONOUNCED ON:26.02.2026ORDER :1.The petitioner has filed the present writ petition, therebypraying for quashing and setting aside the judgment and order datedJhs/1/17 CRI WP NO. 772 OF 202531.05.2025, passed by the learned Additional Sessions Judge – 2,Parbhani in Criminal Revision No. 22 of 2025 and further praying forconfirming the order passed below Exh. 1 by learned JudicialMagistrate First Class in Criminal Miscellaneous Application No. 149of 2024.2.Case of the prosecution as is disclosed from the copy of the FIRshows that informant who is Assistant Police Inspector of NanalpethPolice Station, Parbhani received secret information on 04/04/2024that one Eicher Tempo filled with cattle was proceeding from Jinturroad. He informed this fact to his superior and thereafter, he alongwith other police persons went to Visawa Fata by private vehicle toconduct raid. At about 04.15 p.m. they saw that the tempo filled withcattle was proceeding. They gave signal by the hand for stopping theTempo. They inspected the Tempo and found 9 cattle (8 bullocks and1 calf). When the police enquired with the driver of the tempo as towhether he possessed a valid permit or licence to transport the cattle,the driver replied that the cattle belonged to his brother, namelyShaikh Usman Shaikh Yunus, who also arrived at the spot on amotorcycle. However, neither the driver nor the said owner producedany licence or document authorising the purchase or sale of thecattle. Consequently, the police suspected that the cattle were beingtransported for the purpose of slaughter. On the complaint lodged byJhs/2/17 CRI WP NO. 772 OF 2025the informant, a crime bearing No. 173/2024 came to be registeredwith Nanalpeth Police Station against the driver and the personclaiming to be the owner of the cattle for the offences punishableunder Sections 11(1)(d) and 11(1)(e) of the Prevention of Cruelty toAnimals Act, 1960; Section 5A of the Maharashtra AnimalPreservation Act, 1976 (as amended in 1995); Sections 3, 181, 5, 180and 158 of the Motor Vehicles Act, 1988; and Section 119 of theMaharashtra Police Act.3.Respondent No. 2 herein has filed an application for release ofthe vehicle and nine cattle seized in the aforesaid offences. Thepetitioner also filed an application for intervention below exhibit – 13in the said Criminal Miscellaneous Application No. 149 of 2024. Theapplication for release of the vehicle and nine cattle filed byrespondent No. 2 was rejected and the intervention application filedbelow exhibit 13 by present petitioner was allowed vide order dated02.05.2024 passed by learned Judicial Magistrate First Class (CourtNo. 3) Parbhani.4.Respondent No. 2 herein has filed first Criminal RevisionApplication No. 30 of 2024, against the order dated 02.05.2024,passed by learned Judicial Magistrate First Class (Court No. 3)Parbhani, which was also decided by learned Additional SessionsJudge – 2, Parbhani vide order dated 31.05.2024, by partly allowingJhs/3/17 CRI WP NO. 772 OF 2025the application for release of the vehicle in favour of respondent No.2 herein and rejecting the application insofar as the release of ninecattle is concerned. Thus, the interim custody of the cattle as grantedby the learned JMFC to the petitioner Gaushala was confirmed.5.The charge-sheet came to be filed in the present crime on06.06.2024, which came to be registered as S.C.C. No. 1380 of 2024.Respondent No. 2 herein has thereafter filed an application forrelease of the cattle. The said application below Exhibit – 04 in S.C.C.No. 1380 of 2024 came to be rejected vide order dated 03.03.2025,by the learned JMFC, (Court No. 4) Parbhani. Respondent No. 2herein has thereafter filed another Revision Application before thelearned Additional Sessions Judge, Parbhani against the order dated03.03.2025. The learned Additional Sessions Judge -3, Parbhani videorder dated 31.05.2025 has allowed the second Revision Applicationfiled by Respondent No. 2 herein in his favour. The petitioner hasthus filed the present Criminal Writ Petition challenging the orderdated 31.05.2025, handing over the custody of the cattle torespondent No. 2 herein.6.This Court, vide order dated 06.06.2025, has granted stay tothe impugned order dated 31.05.2025.7.Learned counsel for the petitioner submits that learnedSessions Judge has committed an error in holding that respondentJhs/4/17 CRI WP NO. 772 OF 2025No. 2 had not committed cruelty to the said animals hence entitledfor custody of the cattle. The allegation in the FIR itself shows crueltycommitted by the applicant. Learned Sessions Judge has notconsidered the relevant Rule 3(b) of the Prevention of Cruelty toAnimals (Care and Maintenance of Case Property Animals) Rules,2017, wherein the Magistrate may direct the animal to be handedover to the ‘Panjarapole’ or to animal welfare association or Gaushaladuring the pendency of the litigation. The learned Sessions Judge hasfurther failed to consider the relevant rule 5(4), 5(5) of Prevention ofCruelty to the Animals (Care and Maintenance of Case PropertyAnimals) Rules, 2017, wherein it is held that when the vehicle hasbeen involved in the offence, the Magistrate shall direct that thevehicle be held as security and the vehicle owner, consignor andother persons involved shall be jointly and severally liable for the costof transport, treatment and care of animals. 8.Learned counsel for the petitioner further submits that theearlier order rejecting the revision filed by the petitioner dated31.05.2024 has attained finality and as such the order passed by thelearned JMFC dated 02.05.2024, has become final. Thus, respondentNo. 2 herein could not have filed another application for release ofthe cattle in his favour, which is exhibit – 04 rejected by learnedJMFC on 03.03.2025. Consequentially, the petitioner could not haveJhs/5/17 CRI WP NO. 772 OF 2025filed any such revision after the earlier revision was already rejectedvide order dated 31.05.2024. The impugned order dated 31.05.2025,passed in Criminal Revision Application No. 22 of 2025 is thereforeliable to be set aside on this ground also.9.Learned counsel for the petitioner relies upon clauses 3, 4 and5 of the said rules, which provides for custody of animal pendinglitigation, cost of care and keeping animals pending litigation orexecution of bonds in favour of the persons to whom the custody ishanded over. The Court’s below have earlier rightly handed over thepossession of the animals which were taken for slaughtering byrespondent No. 2 herein and his family members. Relying upon thejudgment in the case of Shri Chhatrapati Shivaji Gaushala Vs. Stateof Maharashtra and Others; Criminal Appeal No. 1719 of 2022(Arising out of SLP (Cri.) No. 412 of 2020). The learned counsel forthe appellant submits that when the Gaushala has shown hiswillingness to accept the interim custody of the cattle and it hasprima facie appeared that respondent No. 2 were carrying the cattlein cruel condition and also without the valid permit, the learnedJMFC Court Parbhani vide its order dated 02.05.2024 has rightlyconcluded that the cattle should be shifted in the custody of theappellants, instead of respondent No. 2. The order dated 31.05.2025passed by the learned Additional Sessions Judge, Parbhani directingJhs/6/17 CRI WP NO. 772 OF 2025the custody to the respondent No. 2 is therefore found to be inviolation of the provisions of the Maharashtra Animal PreservationAct and is liable to be quashed and set aside while restoring to theorder dated 02.05.2024 of the learned JMFC Parbhani.10.As against this, learned counsel for respondent No. 2 submitsthat the applicant/respondent No. 2 being the owner of the saidcattle had produced a receipt showing the ownership of the saidcattle and hence was entitled to be granted the custody of the cattle.Respondent No. 2 had produced on record 7/12 extract to show thatrespondent No. 2 is an agriculturist and that respondent No. 2requires the said cattle for agriculture purpose. Respondent No. 2 isnot having any criminal antecedents and offences under thePrevention of Cruelty to Animals Act, 1960 and as per the judgmentof the Hon’ble Supreme Court in the case of Manager, PinjrapoleDeudar and another Vs. Chakram Moraji Nat and Others; AIR 1998SC 2769, the applicant was rightly handed over the custody of thecattle, by setting aside the order passed by the learned JMFC. TheSections involved in the present crime against the applicant and hissons are Section 11(1)(d) and 11(1)(e) of the Prevention of Crueltyto Animals Act, 1960, the same is punishable with fine and it is onlySection 5 of the Maharashtra Animal Preservation Act, 1976, which ispunishable with five years under Section 9. The allegations in the FIRJhs/7/17 CRI WP NO. 772 OF 2025would itself show that the applicant’s son was transporting the saidcattle and it is only upon suspicion that the said cattle was beingtaken for slaughtering, that the offence is registered. The cattle forwhich the applicant has paid huge amounts for purchasing throughthe open market, is handed over to the petitioner, since 22 monthsi.e. from 04.04.2024. The police has already reported that two ofsuch cattle was ill and one of such cattle is already dead, which isnoted by the learned Courts below. Thus, the petitioner who wasgranted the custody with a purpose of taking care of the cattle, israther derelict in his duty to take care of the cattle and has himselfcommitted cruelty by not taking proper care of the custody after thecustody was handed over to him.11.Learned counsel for respondent No. 2 on the other handsubmits that taking into consideration the various factors involved inthe present case, and also the fact that one of the cattle has diedduring the custody of over 22 months with the petitioner Gaushala,all the cattle which were purchased legally by respondent No. 2herein was rightly handed over to the petitioner by respondent No. 2by the impugned order. The impugned order is therefore just andproper and liable to be maintained.12.Learned counsel for respondent No. 2 further submits that thepetitioner is found to be renting the animals in the village andJhs/8/17 CRI WP NO. 772 OF 2025earning money out of the cattle belonging to the present respondentNo. 2. Respondent No. 2 has filed an affidavit of the villagers who hasstated about the petitioner not being present in the cattle shed andthe cattle were also not present in the cattle shed. Upon enquiry itwas found that the petitioner has used the said cattle for giving it onrent to the villagers for conducting their agricultural works and hasearned money out of it. The affidavit of one Haris Khan and BaliramShinde is annexed with the photographs. The police report submittedto the Magistrate also informs about the petitioner not being presentin the cattle shed at the time of inspection of the cattle. The policereport is also annexed along with the affidavit filed by respondentNo. 2 also confirms the said fact about the petitioner utilizing thesaid cattle. The police report dated 09.06.2025 submitted to theMagistrate speaks of the visit of the Police Officers to the Gaushala,Bramhapuri Phata, Bramhangaon, Tq. and Dist. Parbhani dated05.06.2025, upon visit, it was informed that the petitioner hastransferred the said Gaushala to village Mandhani Taluka Jintur, Dist.Parbhani. The police officers therefore visited the village MandhaniTaluka Jintur, District Parbhani on 06.06.2025 and made a search forthe petitioner – Datta Ragunath Pahare, however, he was not found.The cattle was also not found in the cattle shed at village Mandhani.The notice of execution of order dated 31.05.2025 was thereforeJhs/9/17 CRI WP NO. 772 OF 2025pasted on a conspicuous place in Gaushala. The petitioner hasthereafter sent a reply on whatsapp to the police authority about stayorder passed by this Court in the present writ petition. The perusal ofthe affidavit of Baliram Shinde a villager would show that when theyhad gone in the village to find out the cattle, the cattle was not foundin the cattle shed. The said cattle was given on rent to one AnandraoKurde and Karbhari Shinde. Upon enquiry, these two people haveinformed that the cattle belonging to respondent No. 2 was taken onrent by the villagers from Mata Indrayani Gaushala run by thepetitioner – Datta Ragunath Pahare. Thus, the respondent No. 2submits that taking into consideration the conduct of the petitioner,the petitioner is not entitled for the custody of the cattle, the cattle isin custody of petitioner from last 22 months, and one bovine hasalready expired while in custody of the petitioner and there is everylikelihood that the other cattle may also meet the same fate. Hence,respondent No. 2, who is the owner of the cattle is ready to take careof the cattle was rightly handed over the cattle’s custody by theRevisional Court during the pendency of the trial.13.Learned APP submits that the application filed by the applicantfor release of the cattle had already been rejected by the learnedJMFC, Parbhani, vide order dated 02.05.2024. Being aggrievedthereby, the applicant had preferred Criminal Revision ApplicationJhs/10/17 CRI WP NO. 772 OF 2025No. 30/2024 before the learned Sessions Court. The learnedAdditional Sessions Judge, Parbhani, by order dated 31.05.2024,dismissed the said revision. It is further submitted that despitedismissal of the earlier revision application, a subsequent application(Exhibit–4) came to be filed before the learned Trial Court seekingsimilar relief. According to the learned APP, such successiveapplication was not maintainable in view of the bar contained underSection 362 of the Code of Criminal Procedure, as the earlier orderhad already attained finality. It is contended that the subsequentCriminal Revision Application No. 22 of 2025 filed by RespondentNo. 2 herein was also not maintainable, inasmuch as the earlierproceedings between the parties had already attained finality and thesaid orders were never challenged before the High Court. Therefore,according to the learned APP, the learned Additional Sessions Judgeought not to have entertained the revision and passed the impugnedorder dated 31.05.2025 in Criminal Revision Application No. 22 of2025, and hence the same is liable to be set aside.14.I have gone through the judgment and order dated 31.05.2025passed by the learned Additional Sessions Judge, Parbhani inCriminal Revision Application No. 22 of 2025. I have also perused theorder dated 03.03.2025 passed by the learned Judicial MagistrateFirst Class, Parbhani. Further, I have gone through the earlier orderJhs/11/17 CRI WP NO. 772 OF 2025dated 31.05.2024 passed in Criminal Revision Application No. 30 of2024, whereby the application for release of cattle and vehicle waspartly allowed and Respondent No. 2 herein was granted custody ofthe vehicle, whereas the prayer for custody of the animals came to berejected. I have also perused the order dated 02.05.2024 passed bythe learned JMFC, Parbhani Court No. 3, in Criminal MiscellaneousApplication No. 149 of 2024, whereby the application for release ofthe vehicle and animals was initially rejected.15.Insofar as filing of the Second Revision taken by the learnedcounsel for the petitioner as well as the learned APP for the State isconcerned, it could be seen from the record that the first applicationbeing MCA No. 149 of 2024 is filed by respondent No. 2 underSection 457 of the Cr.P.C., while the investigation was still going onand the charge-sheet was yet to be filed. It further appears from therecord that the second application for release of the cattle was filedby respondent No. 2 under Section 451 of the Cr.P.C., when theproperty is produced before any Criminal Court during any enquiryor trial. Thus, the two stages of filing of the applications are entirelydifferent and as such the objection taken by the petitioner as well asthe learned APP pertaining to the second application being filed byrespondent No. 2 herein, does not deserve any interference, ismisconceived and is liable to be rejected.Jhs/12/17 CRI WP NO. 772 OF 202516.Perusal of the impugned order dated 31.05.2025 wouldindicate that Respondent No. 2 had produced photo copies of theoriginal purchase receipts of total nine cattle along with Exhibit–15,wherein his name is reflected as purchaser. He had also produced7/12 extracts of Gat No. 12 dated 13.02.2017, wherein his nameappears in the column of “Bhogwatdar” along with other persons.Further, 7/12 extract of Gat No. 189 was also placed on record,wherein the name of his mother – Zaitunbi Shaikh Chand – appearsas one of the Bhogwatdars. An affidavit at Exhibit–12 was also filedstating that after sale of his property, he is using agricultural field ofhis brother Shaikh Ayub Shaikh Chand in Gat Nos. 12, 189, 190 and204 for agricultural purposes and for maintaining the cattle. TheRevisional Court has taken into consideration that no third personhad come forward to claim custody of the seized cattle and that thecharge-sheet had already been filed and the trial is likely to take timefor conclusion. On that basis, relying upon the ratio laid down in thecited judgments, the Revisional Court concluded that interim custodyof the remaining eight cattle ought to be granted to the owner andaccordingly allowed the Revision Application.17.The Hon’ble Supreme Court in Manager, Pinjrapole Deudar v.Chakram Moraji Nat; AIR 1998 SC 2769 has laid down guidelines tobe considered while determining interim custody of animals seizedJhs/13/17 CRI WP NO. 772 OF 2025under the Prevention of Cruelty to Animals Act, 1960. The relevantconsiderations include (i) the nature and gravity of the offencealleged against the owner, (ii) whether it is the first offence allegedor whether he has been found guilty earlier, (iii) if it is a firstprosecution, the owner would ordinarily have a better claim forcustody, (iv) the condition in which the animals were found at thetime of inspection and seizure, and (v) the possibility of the animalsbeing subjected to cruelty again. It has further been clarified thatneither the Pinjrapole nor the Gaushala has any preferential rightover the owner when the owner seeks custody.18.The perusal of the provisions and Rules framed under the Act,namely the Prevention of Cruelty to Animals (Care and Maintenanceof Case Property Animals) Rules, 2017, particularly Rules 3 to 5,confer discretion upon the Magistrate to entrust interim custody to aGaushala, Panjarapole or other recognized institution. However, suchentrustment is not mandatory and the discretion is to be exercisedkeeping in view the welfare and protection of the animals as theparamount consideration.19.Recently, in Shri Chhatrapati Shivaji Gaushala v. State ofMaharashtra, (Supra) discussing the judgment in Manager, PinjrapoleDeudar v. Chakram Moraji Nat (Supra), interpreting Section 35(2) ofthe P.C.A. Act, the Hon’ble Supreme Court has reiterated that thoughJhs/14/17 CRI WP NO. 772 OF 2025the Magistrate has discretion to hand over interim custody of seizedanimals to a Panjarapole or Gaushala, the Court is not bound to do soin every case and such discretion must be exercised judiciously on thefacts of each case.20.In the present case, the Revisional Court has considered theownership documents produced by Respondent No. 2, his agriculturalbackground, the absence of criminal antecedents and the fact that theoffences under Section 11(1)(d) and 11(1)(e) of the Prevention ofCruelty to Animals Act, 1960 are punishable with fine for firstoffence. The allegation under Section 5A of the Maharashtra AnimalPreservation Act, 1976 is based on suspicion of transportation forslaughter, which is yet to be established during trial.21.At the same time, the material placed on record indicates thatthe cattle remained in the custody of the petitioner–Gaushala for aperiod of about twenty-two months. It has also come on record thatone bovine expired during such custody. Police inspection reports andaffidavits relied upon by Respondent No. 2 indicate that at the timeof inspection, the petitioner was not found present at the cattle shedand the cattle were allegedly not available there. There are alsoallegations that the cattle were given on rent for agriculturalpurposes. Though this Court is not adjudicating upon the truthfulnessof these allegations in the present proceedings, the same wereJhs/15/17 CRI WP NO. 772 OF 2025relevant considerations before the Revisional Court while exercisingdiscretion.22.This Court, while exercising writ jurisdiction under Articles 226and 227 of the Constitution of India, does not act as an appellateCourt to re-appreciate evidence or substitute its own view unless theorder impugned suffers from perversity, illegality or materialirregularity. Upon careful scrutiny, it cannot be said that thediscretion exercised by the learned Additional Sessions Judge isarbitrary or contrary to the settled legal principles governing interimcustody of seized animals.23.Accordingly, this Court does not find any reason to interferewith the impugned order dated 31.05.2025. Hence, the followingorder is passed :-O R D E RA)The Criminal Writ Petition stands dismissed.B)The interim order dated 06.06.2025 stands vacated.C)The petitioner shall hand over custody of the cattle toRespondent No. 2 within a period of fifteen (15) days fromtoday through the concerned Police Station. D)The concerned Police Officer shall remain present at the timeof handing over and shall prepare a detailed panchnamarecording the condition of the cattle.Jhs/16/17 CRI WP NO. 772 OF 2025E)Respondent No. 2 shall ensure proper care and maintenance ofthe cattle and shall produce the same before the Trial Court asand when directed.24.Needless to mention that the observations made herein areprima facie in nature and shall not influence the Trial Court whiledeciding the case on its own merits.( MEHROZ K. PATHAN )JUDGE25.After pronouncement of the order, learned counsel for thepetitioner requested that the interim relief be continued for a periodof four weeks. Since the learned Revisional Court had directedhanding over custody of the cattle to respondent No. 2 within aperiod of 15 days, and as there was a stay operating vide order dated06.06.2025 passed by this Court, and further considering that onecattle has already died while in the custody of the petitioner, therequest to continue the interim relief stands rejected.( MEHROZ K. PATHAN )JUDGEJhs/17/17