Allahabad High Court
Vimal Shukla vs State Of U.P. on 5 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5309
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 AFR Case :- BAIL No. - 10350 of 2018 Applicant :- Vimal Shukla Opposite Party :- State Of U.P. Counsel for Applicant :- Shamshad Ahmad Khan Counsel for Opposite Party :- G.A. Hon'ble Attau Rahman Masoodi,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
The applicant is implicated in Case Crime No. 396 of 2018, Police Station Kotwali Dehat, District Hardoi, under Section 2/3 U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 on the premise that one criminal case under Section 3/5/8 of Cow Slaughter Act is pending against him and he being a member of an organised gang involved in the business of illegal sale of meat and skin of prohibited animals i.e. cow breed for financial gains and being involved in anti social activities, therefore, cannot be set free in the public interest as there is apprehension of commission of further crimes and thus, curtailing the liberty of accused applicant is imminently necessary.
It is argued that Gangster Act was previously inflicted upon the applicant on the basis of his criminal history and primarily having regard to case crime no. 211 of 2018 under Section 3/5/8 of Prevention of Cow Slaughter Act of which the charge sheet had already been filed against him before the trial court. The applicant was granted bail by this Court vide order dated 15.11.2018 passed in Bail No. 9633 of 2018.
The applicant has submitted that before he could be released pursuant to the order passed by this Court on 15.11.2018, the State authorities have again inflicted Gangster Act upon him taking shelter of another case of the same description registered as case crime no. 62/2018 wherein he has already been enlarged on bail by the trial court on 28.3.2018. This fact was in the knowledge of the State authorities even at the time of implicating the applicant under the Gangster Act previously i.e. when case crime no. 396 of 2018 under the same very Act was registered. In this background, it is argued that slapping of Gangster Act on the accused persons has recklessly become rampant by the State authorities even without having due regard to the object of law.
Learned AGA has strenuously objected against the prayer for bail on the ground that offences under the Cow Slaughter Act have now been incorporated under Section 2(b)(xvii) of Gangster and Anti Social Activities (Prevention) Act, 1986 by notification dated 27.4.2016 and the State is well within its authority to invoke the provisions of the Gangster Act once the circumstances so warrant.
This Court may note that the only criminal history against the applicant is that of two cases of the same description of which trial is yet to culminate. There is no record of the applicant being a previous convict in any such offence. It would be a grave situation for an accused person if the trial under the Gangsters Act wins precedence by virtue of the mandate of Section 12 and ultimately the accused person is found innocent in the pending case. The emerging situation would be disastrous. It is in these circumstances that the administration must weigh the gravity of apprehension much deeper so that public order and security is secured by considering all the relevant material. In the present case, once there was a bail order granted by this Court, the State ought to have made an application before the competent Court for cancellation of the bail order taking a plea that some material which being vital had escaped attention of the Court. The State authorities can always bring on record relevant materials which the Court ought to have considered in the interest of justice. In the present case, however, the administrative authorities have acted in flagrant disregard of the order passed by this Court simply to frustrate the object of a judicial order. This is not the manner in which the object of a Special Law i.e. Gangsters Act is to be achieved in the name of public order or security. The State is duty bound to protect personal liberty of its citizens beyond doubt which is fundamentally guaranteed under Article 21 of the Constitution of India.
The Court may also note that trading in the business of meat in the context of religious sentiments has become highly volatile in the State of U.P. and is a constant source of hatred between the two classes of population i.e. vegetarians and non-vegetarians. Both the sets of population are equal partners in the making of nation i.e. Bharat. Hinduism does not oust a Hindu from its following on the premise of food habits and so is the case in Islam, Christianity, Sikhism or any other religion if someone becomes a pure vegetarian. It is in this background that Article 25 of the Constitution of India which guarantees religious freedoms does not classify the population on any such standard of food habits. Hatred has no acceptance in a civilised society. Religious tenets of all denominations also do not approve of hatred and it is for this reason that late Dr. S. Radhakrishnan, the Ex-President of India, in his book on religion and culture observes as under while analyzing the views of Nobel laureate Rabindra Nath Tagore on education and I quote:
"Tagore loves his country too much to be a nationalist. Each nation should develop a broader horizon and even if a nation has to die, it should learn to die without hatred."
Cow slaughter being forbidden is an offence in the State of U.P. More than what is termed as religious, it is because of utility of cow. To clarify the position, it would be apt to say that a Hindu does not cease to be Hindu or a Muslim, Christian or Sikh would not earn a place in the heaven if they consume meat of cattle of which slaughter and sale is forbidden under the Act. No such instance is known to history. What makes the cow so significant is that cow milk is the best substitute for life next to mother feed and on this aspect there is no conflict of opinion amongst the people who stand classified whether on the ground of food habits or otherwise. Besides the above, scientific reasoning and common prudence also does not clash when we look at the significance of cow from this point of view. Moreover, the cow dung serves the purpose of fertilizer etc. Importantly cow is the mother of he-calf which for centuries has served the dependence of agrarian society to plough the fields. All these factors link the cow with human life and development. Therefore, to quarrel on the utility of the cow is gainless.
Time has come when the Court may strike a note of caution for the State to evolve a policy for the protection, nutrition and management of production of cows under Section 7(2) of the U.P. Prevention of Cow Slaughter Act, 1955 as amended by Act No. 14 in the year 2002 which for ready reference is extracted below:
"7. Maintenance of cows, etc (1) ...................
(2) The State Government may make such other alternative and additional arrangements for taking care of such cows, bulls or bullocks as it may deem necessary."
The population of cows is again gender based and due to scientific advancement, he-calf is no more prominently used in agriculture, therefore, the State Government is under an obligation to lay down a complete scheme of production, purchase and sale of he-calves. Insofar as she-calf is concerned, the State Government has not only to come up with a plan of production, management and safety but to deal with the animal on its natural death and old aged too. The Government has to evolve a complete plan before implementing the law as punitive. It is to be noted that India is a country which earns a huge foreign exchange through the business of meat and the preventive measures have a bearing upon our economy like a ban on liquor or tobacco. India is the largest cattle producing country and exporter of meat. The implementation of the law without broad base management would threaten our economic interest and the area of self employment. The measure of imposition of Gangster Act in the backdrop of ill management would become a menace and the object to protect the cows would frustrate. Not only that the cows have to be protected and population multiplied but the adulteration in the milk and milk products too which is rather a more serious challenge for the health reasons of consumers has to be viewed with due sense of responsibility and the State can not plead its helplessness.
Having respect to the sentiments of all the citizens, it may be noted that human race in India got divided into classes like Sapiens - Homo Sapiens, Kauravas - Pandavas, Aryans - Dravidian, Sanatan Dharma followers - Buddhists / Jains, Casteism, religious communities, Indians - foreigners and now vegetarians and non-vegetarians. One thing common in all these developments is hatred which is the root cause of Indian backwardness otherwise the country with such a geographical base and fertility would have had a stable economy showing due respect to human and animal rights. It would be harsh to hold any single factor responsible for the cause of hatred but the future citizenry has to find means and ways to repair the loss. This country has a blended culture of unique values and time has come to build the institutions of inclusive growth rather disintegrating the society on hard core issues threatening our co-existence. Taking food together has never been an issue at public places but praying together has always been a problem for identity sake. The constitutional morality in these areas must find its relevant place. Is it not the time to calm our prayers and have common places for meditation, Yoga and sports. Let our brotherhood grow our spiritual faith. We need to think. The court has no hesitation to apologise, if something spoken logical or imaginative hereinabove has touched the sentiments of any one or is otherwise felt objectionable. In my humble view, togetherness is the only course open to nation to march ahead in the pursuit of universal and national order for guaranteeing dignified life and personal liberty which is fundamentally guaranteed. The constitutional morality casts a duty upon the State to level the field for ensuring personal liberty, if for any reason the Statute gives a recognition to any belief, usage or tradition which may be prevalent as a matter of public morality, the constitutional morality must balance the rivalry of interest within the true scope of Article 21 of the Constitution of India. The mandate of Section 7 of Cow Slaughter Act casts a duty upon the State to adequately equip the local bodies with requisite funds so that the management of cattle is effectively monitored and violation of law is curtailed through voluntary observance of law rather than the sense of fear of punishment.
Even if it is assumed that hatred in the realm of natural instinct of a human being no civilisation can absolutely purify, yet human tendencies can be activated to improve our social order by recognising hatred value to counter adulteration to clean environment and hygienic conditions and all those areas where it may serve the purpose of our vedanta philosophy. To market unwise hatred ideas, however, has to be eroded and not allowed to settle.
In the backdrop of what has been stated above, the State Government is expected to direct all the local bodies, town areas, gram panchayats to establish slaughter houses for management of cattle and establish gaushalas not less than one over a population of 1000 people so that protection of cows is ensured to the utmost satisfaction of public spirit. Let there be a cow owned by every family sheltered in gaushalas so that feeding of cows does not become cumbersome for the local body and there is inclusive participatory system for production of milk. Let the local bodies provide support price for the he-calves and other animals having lost utility. Supply of meat to Zoos, skins to leather industry or cattle having lost utility to let go in the forest areas may also be viewed in consultation with the environment experts. The State Government before issuance of notification on 27.4.2016 ought to have applied mind on these issues which might have considerably eased the implementation of punitive law within its true scope and purpose, yet it is never late for the State to undertake such an exercise in order to honour the basic rights of its citizens.
Keeping in view the aforesaid facts, but without expressing any opinion on the merits of the case, a case for grant of bail is made out.
Let the applicant Vimal Shukla involved in the aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned with the following conditions.
(i) The applicant shall file undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 5.12.2018 Fahim/-