Justice Dr. Ajoy Kumar Mukherjee, Calcutta High Court

While quashing a case against a man booked for killing a stray dog, the Calcutta High Court has noted that there was no owner of the stray dog, and it was not the ‘property’ which could be subjected to the offence of section 429 IPC. The High Court further clarified that mere involvement of a vehicle in an accident ipso facto does not satisfy section 11 (1) (a) of the Prevention of Cruelty to Animals Act, 1960.

The High Court was considering an application seeking the quashing of a case registered under section 428, 429 of the IPC read with section 11(1) (a) of the Prevention of Cruelty to Animals Act, 1960.

The Single Bench of Justice Ajoy Kumar Mukherjee stated, “Admittedly the dog was a stray dog and as I have stated above that there was no owner of stray dog and also was not the ‘property’ which could be subjected to the offence of section 429 IPC. Section 429 provides mischief by killing poisoning, maiming or rendering useless any elephant, camel, horse, mule, buffalo, bull, cow or ox whatever may be value or any other animal of the value of Rs. 50/-. Or upwards but such property should be public property or property to any person.”

“Mere involvement of a vehicle in an accident ipso facto does not satisfy section 11 (1) (a) of the Act of 1960. It is no answer to say that mens rea i.e. guilty mind, being an issue of fact can only be adjudicated during trial, when the prosecution do not have anything to show even prima facie about criminal motive of committing alleged offence by the petitioner”, it added.

Advocate Moyukh Mukherjee represented the Petitioner, while Advocate Bidyut Kumar Ray represented the Respondent.

Factual Background

According to the FIR lodged by the complainant, a stray dog was run over by a slow-moving car. The FIR emphasised deliberate cruelty by the petitioner. After the completion of the investigation, the police submitted a charge sheet against the petitioner.

Reasoning

The Bench noted that during the investigation, the police recorded statements of two witnesses under section 161 Cr.P.C., who stated that the car in question had desperately knocked down the animal, and they believed that the driver/petitioner targeted the dog. Furthermore, the witnesses stated before the police that the dog died instantly, though no formal proof, such as photographic evidence, a veterinarian’s certificate or any official record, was produced in the charge sheet about the exact aftermath of the incident.

The Bench explained that Section 428 of the IPC contemplates mischief by killing or maiming an animal of a particular value, while Section 429 of the IPC deals with mischief by killing or maiming specific animals or animals of higher value. “A bare reading of section 428 and 429 IPC makes it clear that the essential ingredients of both the offences is mischief, which necessarily requires

  1. intention to cause destruction in the property
  2. knowledge to cause wrongful loss or damage to the public or to any person.”, it mentioned.

The Bench further stated that to come within the definition of “mischief” under section 425 IPC, it requires a wrongful or intentional destruction or diminution of property in the context of the Prevention of Damage to Public Property Act, 1984 (PDPP Act) or to any person. “If such mischief is directed against ‘public property’ it is enumerated in section 2 (b) of the said Act namely “property” owned or controlled by the Central Government, State government, local authorities or corporations or institutions substantially funded by governmental bodies. Public property in this statutory sense may not extend to a stray animal as it is neither owned nor controlled by any government authority or institution”, it added.

The Bench explained that a stray dog by its very nature falls outside the boundary of “public property” and furthermore a stray dog is also not owned by an individual. “Therefore, if the allegation is mischief under section 428/429 IPC and if it read with PDPP Act it cannot be sustained against an individual who is alleged to have harm a stray animal, because the object of the alleged mischief i.e. the stray dog does not qualify the term “public property” nor owner of such property can be any particular person”, it stated.

The Bench held that the prosecution had not furnished material proof to confirm the alleged death or the dog’s ultimate fate. The Bench stated that the omission to incorporate such material evidence also undermines the authority of the claim that the dog was killed by the petitioner and died instantly without having any forensic or physical evidence. The entire case stands on a speculative ground based on alleged CCTV footage, it further noted.

The Bench was of the view that no offence under section 428 or section 429 of the IPC or Section 11(1)(a) of the 1960 Act could be set to be made out specially when a mens rea, animus or intention had not been established during investigation. The Bench allowed the application and quashed the impugned proceeding.

Cause Title: Emon Roy v. The State of West Bengal (Case No.: CRR 1499 of 2025)

Appearance

Petitioner: Advocates Moyukh Mukherjee, Sagnika Banerjee

Respondent: Advocates Bidyut Kumar Ray, Ashok

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