Allahabad High Court
Jaheer vs State Of U.P. And 4 Others on 5 August, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 248 of 2019 Petitioner :- Jaheer Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajesh Kumar Sharma Counsel for Respondent :- G.A.,Jai Shanker Audichya Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri R.K. Sharma for the petitioner; learned A.G.A. for the respondents 1, 2, 3 and 5; and Sri J.S. Audichya for the respondent no.4.
The instant petition questions the detention of the petitioner under the provisions of National Security Act, 1980 (for short the Act, 1980) pursuant to detention order dated 29.09.2018 passed by the District Magistrate, Hapur in exercise of power conferred upon him by Section 3(3) read with Section 3(2) of Act, 1980.
A perusal of the grounds of detention, which have been served upon the petitioner, would reveal that, on 09.07.2018, an information was received by the police force, at about 9 pm in the night, that at village Bhikanpur, few people are indulging in cow slaughter. Upon receipt of said information, the police party reached the spot in the village and found a vehicle parked outside a house within the village Bhikanpur. The informer pointed out to the police that cow slaughter is being carried out within the premises of that house. Upon receipt of the information, the police party raided the house. Three persons escaped and three were apprehended. Those three persons, who were apprehended, were Anwar, Sartaz and Naushad. The police found a slaughtered cow and two calves lying tied. Thereafter, the police party proceeded to the house of one Abid. There also a raid was conducted and two persons were apprehended. Those two persons were Jaheer (the petitioner) and Rizwan. They were found with cutting weapons in their hand and a half cut bull was found there. In the grounds of detention, it has been alleged that when the information about slaughter spread, villagers got agitated and various Hindu organizations started their protest, as a consequence of which, even tempo of the society was disturbed. Accordingly, after disclosing awareness that the detenue was in jail in connection with Case Crime No.293 of 2018, under Section 3/5A/8 of Cow Slaughter Act and Section 3/11 of Prevention of Cruelty to Animals Act, 1956 and had filed a bail application, which was likely to be allowed, after drawing satisfaction that he would indulge in repeat of such act, with a view to prevent the detenue from repeating such act, which may disturb public order, the detention order was passed.
The learned counsel for the petitioner has questioned the detention order on the ground that the alleged act of the petitioner only breaches law and order and does not breach public order and, therefore, detention under sub-section (2) of Section 3 of the Act, 1980 is not justified.
The learned counsel for the petitioner has submitted that from the grounds of detention it is clear that the act of slaughter was within the secrecy of one's house; and that the animal parts or the beef was not taken out of the house for sale at a public place. It has been submitted that alleged demonstrations, if any, was not a direct consequence of the alleged act but was on account of spreading of rumors by vested interests. Otherwise, no violence of any kind, resulting in death or injury to any member of the public, has been reported or alleged. It is urged that the slaughter was not done in the public gaze and certainly not to incite members belonging to the Hindu community. Even the police force did not witness the slaughter. They only saw the body parts and the meat that remained. Whether a dead animal was cut into pieces or a live animal was slaughtered is not discernible from what the police party saw. Therefore, it cannot be said that the act had potentiality to incite the feelings and sentiments of the Hindu community. It has been submitted that when an act of slaughter is within the confines of one's house and not in public view and there is nothing that it was done with an intent to challenge the members of the other community, the act affects only law and order and does not have the potentiality to breach public order. It has also been urged that it is not a case where beef was being distributed / sold outside the house or to the members of the public so as to hurt the feelings of the other community. The thrust of the argument thus is that the act as alleged is simply an infraction of law and order and does not have potentiality to affect public order.
In support of the submission that such an act would amount to breach of law and order and not public order, the learned counsel for the petitioner cited a Division Bench decision of this Court in the case of Saeed Vs. State of U.P. and others: 2007 (67) All LR 4: 2007 (1) ACR 481: MANU/UP/2320/2006.
Per contra, learned A.G.A. has submitted that an act of slaughtering a cow by itself has potentiality to breach public order regardless of the slaughter being within the confines of one's house. That apart, there are reports that Hindu organizations staged demonstrations. Therefore, it can safely be assumed that there had been breach of public order by the act of the petitioner. Hence, detention order is justified. He placed reliance on a decision of a Division Bench of this Court in the case of Riyazuddin Vs. State of U.P. and others: 2017 (5) ADJ 316: 2017(2) All CrR 1979: 2017 LawSuit (All) 265.
We have considered the rival submissions and have perused the record carefully.
From a perusal of the record, we find that there is no material on record to suggest that the act of slaughter took place outside the four walls of one's house or that the animal parts, beef, etc were taken out of the house for sale to members of public. There is no allegation that the members of public had collected at the house of the accused and in their presence or to their knowledge slaughter took place. There is also no material to suggest that in that village or locality communal violence broke out resulting in injury to any one. It appears to us that when the news of slaughter leaked, demonstrations started. Who spread the news, with what motive, is not known. But the alleged act by itself was not such which could have come to the notice or knowledge of any one except those who were within the four walls of that house. Interestingly, the police party also did not witness the slaughter. They only saw remains of the slaughter, if any, when they raided the premises. The act was a well secreted act, in the darkness of night. Obviously, to ensure that it does not come to the notice of others.
In Saeed's case (Supra) a Division Bench of this Court had taken a view that when a few men clandestinely slaughter a cow in the secrecy of their home away from the public eye in the dark hours, perhaps for survival or for consumption of meat, such action may not by itself amount to breach of public order but when the slaughter is done in public gaze with a view to strike terror in the minds of public and to disturb communal peace, then it may amount to breach of public order.
In Riyazuddin's case (Supra), which has been cited by the learned A.G.A., from a perusal of paragraph 20 of that judgment, as reported, it appears, the act of slaughter was in public gaze and the beef was being transported in vehicles for the purpose of its disposal. Further, from paragraph 27 of the judgment, as reported, it appears that number of cows were slaughtered and their body parts were scattered all around in an open place in public view. Therefore, the court, after considering all aspects, upheld the order of detention upon finding it to be a case of breach of public order.
In the instant case, a solitary cow appears to have been slaughtered within the confines of one's house. Body parts including beef were not taken out for sale and apparently secrecy was maintained so as to avoid public gaze. The demonstrations, if any, appear to be a consequence of spread of information and rumors, not a direct consequence of the act. Such demonstrations are often fanned by vested interests for oblique purposes which, by itself, would not convert an act constituting a mere infraction of law and order into one which breaches public order. Under the circumstances, we find that the judgment cited by the learned A.G.A. is distinguishable on the facts of the present case. Rather, we are of the considered view, the facts of this case are more less covered by the law laid down by this Court in Saeed's case (Supra) wherein it was held that cow slaughter within the secrecy of one's house by itself does not have potentiality to breach public order. We are therefore of the considered view that the solitary act of the petitioner, referred to in the grounds of detention, did not have the potentiality to breach the public order and it was just a case of breach of law and order. Hence, the detention of the petitioner under the provisions of the National Security Act, 1980 is not warranted.
For the reasons recorded above, the habeas corpus petition is allowed. The detention order dated 29.09.2018 passed by the District Magistrate, Hapur is hereby quashed. The petitioner shall be set at liberty forthwith, unless wanted in any other case.
Order Date :- 5.8.2019 AKShukla/-