[Cites 12, Cited by 0]
Bombay High Court
Syed Shah Azizul Hasan Manzurull Hasan vs The State Of Maharashtra on 2 April, 2026
2026:BHC-AUG:13941
1
CRI WP NO.21 OF 2026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.21 OF 2026
Syed Shah Azizul Hasan s/o. Manzurull Hasan,
Age: 55 years, Occ. Agri.,
R/o.H.No.6-2-4, Holi, Itwara,
Tq. & Dist. Nanded. .. PETITIONER
VERSUS
The State of Maharashtra
Through the Police Inspector,
Nanded Rural Police Station,
Tq. & Dist. Nanded. .. RESPONDENT
...
• Mr. S. S. Gangakhedkar, Advocate for the petitioner.
• Mr. Shrimant Mundhe, Advocate for the applicant in Criminal
Application No.912 of 2026.
• Mr. K. K. Naik, Advocate for the Respondent-State
...
WITH
CRIMINAL APPLICATION NO.912 OF 2026
IN CRIMINAL WRIT PETITION NO.21 OF 2026
...
CORAM : MEHROZ K. PATHAN, J.
Reserved on : 10.03.2026
Pronounced on : 02.04.2026
ORDER :
1. The petitioner has filed the present Writ Petition thereby
praying for quashing and setting aside the order dated 25.11.2025
CRI WP NO.21 OF 2026
passed by the Additional Sessions Judge, Nanded in Criminal
Revision Application No.78/2025 as well as the impugned order
dated 04.10.2025 passed by the learned Judicial Magistrate First
Class, Nanded in OMCA No.649/2025.
2. The learned counsel for the petitioner submits that the
petitioner belongs to agriculturist family and their business is of
agriculture. It is submitted that the family of the petitioner holds
substantial agricultural land at village Pimpari Mahipal, Tq. & Dist.
Nanded. It is submitted that, two sons of the petitioner namely
Azizull and Anwarull holds agricultural land of 1 H 81 R and 1 H 60
R respectively along with wife of the petitioner namely Nafisa Begum
who holds 1 H 60 R of land at Gat No.120 village Pimpari Mahipal,
Tq. & Dist. Nanded. The entire family of the petitioner is dependent
upon the agricultural income.
3. The learned counsel for the petitioner further submits that for
the purposes of agricultural work the family of the petitioner has
purchased three bulls from the weekly market on 19.08.2025 and
receipt to that effect was issued by Contractor namely Venkat
Digambar Dangate about purchase of the cattle's vide receipt bearing
No. 35, 91 and 92. The cattle's were purchased from Maroti
Sakharam Kolge and Lahu Ganpati Pawar. It is submitted that when
CRI WP NO.21 OF 2026
the purchased cattle were being transported to his agricultural field
at the relevant point of time while passing from Loha to Nanded the
vehicle was apprehended.
4. The learned counsel for the petitioner submits that on
19.08.2025 while proceeding towards agricultural field along with
cattle, the vehicle of petitioner reached near Doodh Dairy Square at
Dhanegaon Road and the relevant point of time the police machinery
apprehended the vehicle alleging that, the cattles were being
transported for slaughter in inhuman condition. It has been further
alleged that, the cattles were tied in a condition which was causing
injury to them and as such upon enquiry the receipts about purchase
of the cattles were shown which were found in the said vehicle. It is
submitted that, despite pointing out the receipt about purchase of the
cattle's, they were taken into possession along with the vehicle. It is
submitted that, based upon these allegations crime came to be
registered bearing FIR No.802/2025 on 20.08.2025 at around 00.36
hours by the Nanded Rural Police Station for the offence punishable
under Section 11 (1) (D) of Prevention of Cruelty of Animal Act,
1960. The petitioner had thereafter filed an application under
Section 503 of the BNSS, 2023 for return of the property i.e. three
cattle seized by Nanded Rural Police Station in the aforesaid crime.
CRI WP NO.21 OF 2026
The prosecution had filed its say and opposed the said application on
the ground that the petitioner may indulge into illegal act after
release of the cattle. The learned JMFC after hearing the petitioner
and the prosecution has rejected the application vide order dated
04.10.2025 simply relying upon the rule 3 of the Prevention of
Cruelty to Animals [Care and Maintenance of Case Property Animals]
Rules, 2017 [hereinafter referred to as 'Rules of 2017' for the sake of
brevity].
5. Being aggrieved by the said order dated 04.10.2025, the
petitioner had filed Revision before the learned Additional Sessions
Judge, Nanded. The learned Additional Sessions Judge, Nanded, vide
it's order dated 25.11.2025 was pleased to reject the revision filed by
the petitioner, again relying simply upon rule 3 of the Rules of 2017.
The petitioner has, thus, approached this Court seeking quashment of
both the orders below with consequent prayer of allowing the
application i.e. OMCA No.649/2025.
6. It is the submission of the learned counsel for the petitioner
that the petitioner has purchased three bulls from the weekly market
held at Loha on 19.08.2025, which is 25 kilo-meters away from
Nanded. The receipt to that effect was issued by the Contractor,
namely, Venkat Digambar Dangate about purchase of the cattle vide
CRI WP NO.21 OF 2026
receipt bearing No.35, 91 and 92. The cattle were purchased from
Maroti Sakharam Kolge and Lahu Ganpati Pawar. After purchasing
the said cattle, the same was required to be transported to the
agricultural field of the petitioner. The petitioner owns an
agricultural field at village Pimpari Mahipal, Taluka and District
Nanded along with one field admeasuring 1 H. 81 R. and 1 H. 60 R.
and another field admeasuring 1 H. 60 R. of the same Gat No.120, at
village Pimpari Mahipal, Taluka and District Nanded in the names of
the wife and sons of the petitioner.
Azizull son of the petitioner : 1 H. 81 R.
Anwarull son of the petitioner : 1 H. 60 R.
Nafisa Begum wife of the petitioner :1 H. 60 R.
7. The learned counsel for the petitioner submits that the said
cattle were being transported in the rented vehicle. The raid was
conducted and the vehicle was intercepted despite of showing receipt
to the Police Officer, the offence was registered. The learned counsel
for the petitioner further submits that the impugned order dated
04.10.2025 would show that after conducting raid, the Police
Inspector had immediately admitted the said cattle in Varagi Leela
Goshala, Lath [Kh.], Taluka Kandhar, District Nanded. The learned
trial Court had simply relied upon rule 3 of the Rules of 2017 to hold
CRI WP NO.21 OF 2026
that the applicant is not entitled to get custody of the cattle. There is
no observations on merits by the learned Magistrate as to why the
applicant is not entitled to get custody of the cattle. Rule 3-b no
where prohibits handing over of the custody to the owner of the
cattle. It is submitted that rule 3 b only provides for enabling
provision that the Magistrate may direct the animal to be housed at
infirmary, Pinjrapole, SPCA, Animal Welfare Organization or
Gaushala during the pendency of the litigation. The learned counsel,
therefore, submit that once the petitioner has established himself to
be the owner of the said cattle, the learned trial Court ought to have
directed custody of the animal to be handed over to the petitioner.
8. The learned counsel for the petitioner submits that the
Revisional Court had also failed to apply its mind to the fact that rule
3 of the Rule of 2017 is an only enabling proviso and word used in
rule 3 of the Rules of 2017 is as under :
The Magistrate may direct the animal to be housed at
infirmary, Pinjrapole, SPCA, Animal Welfare
Organization or Gaushala ......
9. The enabling provision is thus directory in nature and cannot
be said to be mandatory. The cattle were seized only on suspicion of
cruelty to the animal as they were found in vehicle. The trial is yet to
be concluded and it is yet to be proved that there was a cruelty
CRI WP NO.21 OF 2026
committed upon the animal. In absence of any finding of cruelty
committed upon the animal, the direction to hand over custody to
the Gaushala instead of handing over custody to the petitioner is,
therefore, illegal and liable to be rejected. The learned counsel for
the petitioner further relies upon the judgment in the case of
Manager, Pinjrapole Daudar and another Vs. Chakram Maroaji Nat
and others reported in AIR 1998 SC 2769 wherein Section 35 of the
Prevention of Cruelty to Animals Act, 1960 came to be interpreted by
the Hon'ble Supreme Court to hold that the Magistrate has discretion
to hand over interim custody of the animal to Pinjrapole but he is not
bound to hand over custody of the animal to Pinjrapole. It is further
held in the said judgment that in a case where the owner is claiming
the custody of the animal, Pinjrapole has no preferential right and in
the case where there is no previous offence registered against the
petitioner and if the owner is facing the first prosecution under the
Act, the owner will have a better claim for the custody of the animal
during prosecution.
10. The learned counsel for the petitioner, therefore, submits that
the petitioner has purchased the said cattle by paying a substantial
amount and is the lawful owner thereof. It is submitted that due to
the impugned orders passed by the Courts below, the petitioner is
CRI WP NO.21 OF 2026
deprived of the ownership rights as well as the use of the said cattle
for agricultural purposes. It is contended that the findings recorded
by both the Courts below are erroneous and contrary to law. The
impugned orders are, therefore, illegal, unjust, and liable to be
quashed and set aside.
11. As against this, the learned APP as well as the learned assisting
counsel vehemently oppose the present writ petition on the ground
that the learned Trial Court as well as the Revisional Court have
rightly applied the provisions of Rule 3(b) of the Rules of 2017 and
have rightly rejected the application filed by the present petitioner.
The impugned orders are just and proper and are liable to be
maintained.
12. The learned counsel Mr. Mundhe for the intervenor submits
that the applicant-intervenor is running a Gaushala and has placed
on record the registration certificate dated 16.07.2024. It is
submitted that the intervenor is presently maintaining about 140
animals and that the cattle in question are being properly
maintained, as the Gaushala is well equipped. It is further submitted
that the petitioner claims to be the owner of the said cattle, which
were found being transported in a vehicle by accused Salim Shaikh,
who is named in the FIR, and therefore, an offence punishable under
CRI WP NO.21 OF 2026
Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960
has been registered. It is further submitted that Rule 3 of the Rules of
2017 empowers the Magistrate to direct that the animals be housed
at an infirmary, Pinjrapole, SPCA, Animal Welfare Organization, or
Gaushala during the pendency of the litigation.
13. The learned counsel for the intervenor Gaushala has further
submitted that Rule 5 of the Rules of 2017 provides that the
transporter, owner, etc., shall be jointly and severally liable for the
cost of transport, treatment, and care of the animals.
14. The learned counsel for the intervenor further submits that
Sections 5, 5A, and 5B of the Maharashtra Animal Preservation Act,
1976 specifically prohibit slaughter, transport for slaughter, and sale
for slaughter of cow, bull, or bullock. Reliance is placed on the
judgment of the Hon'ble Supreme Court in Chatrapati Shivaji
Gaushala vs. State of Maharashtra and Others (Criminal Appeal No.
1719 of 2022, decided on 30.09.2022) and other judgments to
contend that it is incumbent upon the Courts to hand over the seized
cattle to the nearest Gaushala or such other animal welfare
organization willing to accept custody during the pendency of the
litigation.
CRI WP NO.21 OF 2026
15. The learned counsel for the intervenor, therefore, submits that
the applicant-intervenor was always ready and willing to accept
custody of the seized cattle. It is submitted that though the cattle
were initially handed over to the petitioner by the police authorities
after the raid, the learned Trial Court, by order dated 04.10.2025,
rightly rejected the application filed by the petitioner seeking custody
of the said bullocks.
16. The learned counsel for the intervenor as well as the learned
APP further submit that the learned Revisional Court has also rightly
rejected the revision application filed by the petitioner against the
order dated 04.10.2025 passed by the learned Trial Court, by placing
reliance on Rule 3 of the Rules of 2017, which empowers the Court
to direct that the animals be housed in a Pinjrapole or Gaushala
during the pendency of the litigation, vide order dated 25.11.2025. It
is submitted that the impugned orders are just, proper, and do not
warrant interference. The petition is devoid of merit and is liable to
be rejected.
17. The learned counsel for the intervenor has further submitted
that Rule 5 of the Rules of 2017 also provides that the Magistrate
shall determine an amount sufficient to cover the reasonable cost
incurred for transport, maintenance, and treatment of the animals,
CRI WP NO.21 OF 2026
and shall direct the accused and owner to execute a bond for the said
amount with surety within three days. In case of failure to execute
such bond, the animals are liable to be forfeited to the infirmary,
Pinjrapole, or Gaushala.
18. The learned counsel for the intervenor, therefore, submits that
although both the Courts below have rejected the application filed by
the petitioner, they have failed to determine the cost of maintenance
payable to the intervenor as required under the Rules of 2017. It is
further submitted that in the event this Court grants custody of the
cattle to the petitioner, appropriate directions may be issued to the
petitioner to pay maintenance charges, which are quantified at
Rs.200/- per day as per the circular dated 02.07.2019 issued by the
Maharashtra Animal Welfare Board, from the date of handing over
custody to the intervenor till the date of restoration to the petitioner.
REASONING :-
19. I have carefully gone through the judgment and order dated
04.10.2025 passed by the learned Trial Court and the judgment and
order dated 25.11.2025 passed by the learned Revisional Court. A
perusal of both the judgments indicates that the Courts below have
rejected the application for grant of custody primarily by relying
upon Rule 3 of the Rules of 2017. The said Rules have been framed
CRI WP NO.21 OF 2026
in exercise of powers under sub-sections (1) and (2) of Section 38 of
the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred
to as the "PCA Act, 1960" for the sake of brevity). Rule 3 of the Rules
of 2017 is analogous to sub-section (2) of Section 35 of the PCA Act,
1960.
20. The provisions of Section 35 of the PCA Act, 1960 came up for
consideration before the Hon'ble Supreme Court in Manager,
Pinjrapole Deudar and Another vs. Chakram Moraji Nat and Others
(AIR 1998 SC 2769).
21. In paragraph 10 of the said judgment, the Hon'ble Supreme
Court has interpreted the scope of Section 35(2) of the PCA Act,
1960. Which reads as under :-
"10. ........... It follows that under Section 35(2) of the Act, the
Magistrate has discretion to handover interim custody of the
animal to Pinjrapole but he is not bound to handover custody of
the animal to Pinjrapole in the event of not sending it to an
infirmary. In a case where the owner is claiming the custody of
the animal, Pinjrapole has no preferential right in deciding
whether the interim custody of the animal be given to the owner
who is facing prosecution, or to the Pinjrapole, the following
factors will be relevant : (1) the nature and gravity of the offence
alleged against the owner; (2) whether it is the first offence
alleged or he has been found guilty of offfences under the Act
earlier; (3) if the owner is facing the first prosecution under the
Act, the animal is not liable to be seized, so the owner will have a
better claim for the custody of the animal during the prosecution;
..........."
CRI WP NO.21 OF 2026
22. It is thus evident that the provisions of Rule 3 of the Rules of
2017, being almost analogous to Section 35(2) of the PCA Act, 1960,
confer discretion upon the Magistrate to entrust interim custody of
the animals to a Pinjrapole or Gaushala. However, the said provision
cannot be interpreted to mean that the Magistrate has no other
option but to send the animals to such institutions, Pinjraple or
Gaushala. The Hon'ble Supreme Court has categorically held that the
Magistrate retains discretion in the matter, and that the Pinjrapole or
Gaushala does not have a preferential right over the owner. The
mandatory guidelines laid down by the Hon'ble Supreme Court are
required to be taken into consideration while deciding applications
for interim custody of animals.
23. One of the important guidelines is to ascertain whether the
owner is facing prosecution for the first time under the Act. If it is
found that the owner has no criminal antecedents and is facing the
first prosecution, the owner would have a better claim for interim
custody of the animals.
24. In the present case, both the Courts below have failed to
consider the aforesaid guidelines laid down by the Hon'ble Supreme
Court in the proper perspective. The petitioner has placed on record
documents, including purchase receipts of the cattle. It is the case of
CRI WP NO.21 OF 2026
the petitioner that he has no criminal antecedents, and it is not the
case of the prosecution that the petitioner has been involved in any
similar offence in the past. The charge-sheet indicates that the
offence is registered under Section 11(1)(d) of the PCA Act, 1960,
and the allegations pertain only to transportation of the animals in a
manner causing unnecessary pain and suffering. There are no
allegations of slaughter either in the FIR or in the charge-sheet.
25. In the present case, the material on record indicates that the
petitioner has produced documents to establish ownership of the
cattle and has placed on record his agricultural background. There
are no criminal antecedents attributed to the petitioner and the
offence alleged under Section 11(1)(d) of the PCA Act, 1960 is
punishable with fine for the first offence. The charge-sheet does not
show that Maharashtra Animal Preservation Act, 1976 is invoked in
the present crime.
26. Considering the aforesaid facts and the law laid down by the
Hon'ble Supreme Court, the impugned orders passed by both the
Courts below cannot be said to be just and proper. The Courts below
have failed to exercise the discretion vested in them in accordance
with law and have instead treated Rule 3 of the Rules of 2017 as
mandatory. A conjoint reading of Sections 451 and 457 of the Code
CRI WP NO.21 OF 2026
of Criminal Procedure, 1973, Section 35(2) of the PCA Act, 1960,
Rule 3 of the Rules of 2017, and the law laid down in Manager,
Pinjrapole Deudar (supra), makes it clear that there is no absolute
bar and the interim custody of the animals can be given to the owner
upon undertaking to produce animals as and when the Trial Court
directs.
27. The discretionary power to entrust custody to a Gaushala
cannot be construed as mandatory in blatant disregard of the binding
guidelines issued by the Hon'ble Supreme Court in Manager,
Pinjrapole Deudar (Supra). The impugned orders dated 04.10.2025
and 25.11.2025, therefore, do not withstand the scrutiny of law and
are liable to be quashed and set aside.
28. As regards the claim of the intervenor for maintenance
charges, the same cannot be adjudicated in the present writ petition
filed by the owner of the cattle. The record indicates that despite
issuance of notices by the Trial Court as well as the Revisional Court,
the intervenor failed to appear and press its claim. The intervenor
cannot be permitted to raise such a claim for the first time in the
present proceedings. However, it is open for the intervenor-Gaushala
to file an appropriate application before the Trial Court, and if such
fresh application is filed by the Intervenor Gaushala, the same shall
CRI WP NO.21 OF 2026
be decided on its own merits in accordance with law at the time of
deciding the criminal case against the accused after completion of
trial, after granting an opportunity of hearing to the intervenor and
the accused/owner of the cattle.
29. Hence, the following order :-
ORDER
A) The Criminal Writ Petition is allowed.
B) The impugned order dated 04.10.2025 passed by the learned
Judicial Magistrate First Class, Nanded in OMCA No.649/2025
and the impugned order dated 25.11.2025 passed by the
learned Additional Sessions Judge, Nanded in Criminal
Revision Application No.78/2025 are quashed and set aside.
C) The intervenor-Gaushala shall hand over the custody of the
cattle to the petitioner within a period of 15 days from today
through the concerned Police Station. The concerned Police
Officer shall remain present at the time of handing over and
shall prepare a detailed panchnama noting the condition of the
cattle.
D) The petitioner shall not sell, transfer, or part with possession of
the cattle and shall maintain them in proper health and
condition, and shall not subject them to any cruelty.
E) The petitioner shall make the cattle available for inspection by
the Investigating Officer or any authority authorized by the
Trial Court, as and when required.
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F) In case of breach of any of the above conditions, it would be
open for the prosecution to seek cancellation of custody
granted to the petitioner.
30. Needless to state that the observations made herein are prima
facie in nature and are made for deciding the application by the
owner for interim custody. The said observations shall not influence
the Trial Court while deciding the case on its own merits.
[MEHROZ K. PATHAN, J.]
31. At this stage, the learned counsel for the intervenor seeks stay
to the effect and operation of the present order for a period of three
weeks. The record indicates that despite issuance of notices by the
learned Trial Court as well as the Revisional Court, the intervenor
has chosen to remain absent and has now appeared in the present
petition for the first time.
32. This Court has allowed the writ petition on the ground that
both the learned Trial Court and the Revisional Court have ignored
the law laid down by the Hon'ble Supreme Court in the case of
Manager, Pinjrapole Deudar (supra).
33. Thus, the custody of the cattle has been denied to the owner in
utter disregard of the law laid down by the Hon'ble Supreme Court.
Therefore, the request made by the intervenor for stay to the effect
and operation of the present order is hereby rejected.
[MEHROZ K. PATHAN, J.]
