Judgment:
A. Pasayat, J.
1. Petitioner calls in question correctness of order passed by learned Sub-Divisional judicial Magistrate, Sadar, Cuttack ( in short the 'SDJM') dismissing a complaint filed by him alleging that opp. parties herein committed mischief resulting in death of a calf and therefore, were liable to be punished in terms of Section 429 of the Indian Penal Code, 1860 (in short the 'IPC').
2. Petitioner's complaint indicated following background : A calf belonging to him suffered from ailment on 12-4-1986. As the ailment aggravated, opp. party No. 1 who is a Veterinary Doctor was called for rendering medical check up. Opp. party Mo. 1, after checking prescribed certain medicines and infections: The daughter of the complainant-petitioner objected to administration of prescribed injection, since she felt that that was risky to be administered, and requested the Doctor to prescribe some other medicine to be orally administered. He prescribed some pills which were given to the calf. On 14-4-1986 the calf suffered from another attack of fits. After examination of its stool, the next day the Doctor prescribed certain injections. This lime injections were administered notwithstanding protest. A few minutes after such administration, the calf died. Case of complainant was that both the Doctor and Stockman, opp. party Mo. 2 who administered injection were negligent in their duties. They did not care to check up attendant risk in administering the injections. With reference to certain text books of Veterinary medicines, it was urged that requisite care and caution expected to be taken, were not taken and therefore, opp. parties were guilty of offence Under Section 429, IPC. One Deputy Director of Veterinary Services was examined amongst other witnesses, to further the case of complainant. On consideration of evidence, learned SDJM refused to take cognisance, with a conclusion that no offence was made out. He accordingly, dismissed the complaint Under Section 203 of the Criminal Procedure Code, 1973 (in short the 'Code').
3. Learned counsel for petitioner, submit that the very fact that opp. parties did not take due care and caution as a consequence of which the calf died indicated a prima facie case and therefore, refusal to take cognizance was not in accordance with law. Learned counsel for opp. parties however, submits that the ingredients requisite for attracting culpability Under Section 429, IPC did not exist and therefore, order of learned SDJM is proper.
4. Secs. 428 and 429, IPC are intended to prevent cruelty to animals and consequent loss to the owner. While Section 428, IPC deals with the animals of any kind of the value of ten rupees or upwards. Section 429 deals with some specified animals of any value, and other animals of fifty rupees or upwards. Mischief is defined in Section 425, IPC. Mischief referred in Section 429, IPC relates to killing, poisoning, maiming or rendering useless any of the classified groups of animals whatever may be the value thereof, and any other animals of the value of fifty rupees or upwards. Mischief involves intention or knowledge of likelihood to cause wrongful loss or damage It does not unnecessarily contemplate damage of a destructive character. Mischief involves a mental act with a destructive animus. Destruction with object of creating wrongful loss or damage Is obligatory to be established. Negligence does not unnecessarily amount to mischief. Negligence coupled with intention to cause wrongful loss or damage may amount to mischief in certain circumstances. The elements of Section 425 relating to intention and knowledge have to be proved, otherwise, Section 429 will have no application. Similar view was expressed in Majid Ali v. State : 1957 A. L. J. 123. Even if the allegations made by complainant are accepted without reservation, it may amount to a case of negligence, but not mischief. Therefore, learned SDJM was justified in refusing to take cognisance, since there was no prima facie material to show commission of any culpable offence.
5. Before parting with the case, I may point out that there is difference of opinion on the question whether a calf comes within the term cow. According to Madras High Court, a calf does not come within bull, cow or ox [See Cholay (1864) Madras unreported]. But Calcutta High Court has held that bull and cow in Section 429 include : Young ones of those animals. (See Hari Manilla v. Jafar : 1895(22) Cal. 457) The view of the Calcutta High Court appears to be reasonable. The section specifies the more valuable of domestic animals without any regard to age. 'Calf, means young of the cow' according to Webster Universal Dictionary. Apart from that, the value of calf was more than Rs. 50/-
Revision application fails and is dismissed.