Calcutta High Court (Appellete Side)
Sri Kishan Chandra Dey & Ors vs Officer-In-Charge Of Bhagwanpur ... on 15 January, 2010
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUIONAL WRIT JURISDICTION
APPELLATE SIDE
W. P. 7376 (W) of 2009
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
Sri Kishan Chandra Dey & Ors.
Vs
Officer-in-Charge of Bhagwanpur Police Station, Dist. Purba
Medinipur & Ors.
For the Petitioner : Mr. D. N. Mondal,
Mr. Nirmal Kumar Maity.
For the Respondent Nos. 1, 3, 5 & 6:
Mr. Manick Chadra Das;
Mr. Subrata Banerjee.
For the Private Respondent : Mr. Jagatbandhoo Mondal,
Mr. Ranjan Mahapatra.
Heard on : 10.12.2009
Judgement on : 15.01.2010
2
Syamal Kanti Chakrabarti, J.:
The present writ application has been preferred by six writ petitioners contending, inter alia, that the West Bengal Animal Slaughter Control Act, 1950, as amended in 1979 provides for slaughtering of cattle under certain restrictions. Under the present provision such slaughtering without certificate of a veterinary surgeon or the Sabhapati of Panchayat Samity regarding fitness age of the cattle above 14 years whether unfit for breeding due to age, injury, deformity or any incurable disease etc. is prohibited. But violating the statutory provision on 09.12.2008, i.e., on the day of Kurbani, slaughtering of six cows all of under 14 years of age did take place in open place where Hindus are residing and they washed the slaughtered animal in a big tank near by the village where the Hindu people take bath, use water sometime for drinking purposes and also perform immersion of Hindu deities. Such Kurbani took place in front of the house of Sk. Sobani, father of Sk. Era of village Paschim Tanguria and in front of the house of Sk. Noushsad of village Kishorepur of Bhagabanpur Police Station, in the district of Purba Medinapure. This place is not a place of slaughter or made for slaughtering of animals under the aforesaid Act. The local people resisted the move but to no effect. Therefore, on behalf of the local people 3 residing at the village of Paschim Tangaria, nearly six hundred villagers submitted an FIR on 15.12.2008 with the Officer in Charge of Bhagabanpur Police Station against such cow slaughter in open place with an intention to outrage communal riots but no action has been taken by the police station. On 07.01.2009 some local people met the Sabhapati of Bhagabanpur Panchayat Samity and lodged similar complaint. On 09.01.2009 they also submitted a petition before the Veterinary Officer of Bhagabanpur block. The concerned Veterinary Officer has given a written note thereon that on the above occasion no such certificate was obtained from his office for the purpose of slaughtering of cows. On 09.01.2009 they also submitted similar complaint before the Sub-Divisional Police Officer, Egra. All their representations remained unattended to and being aggrieved by and dissatisfied with the inaction of respondent authorities they have filed the instant writ petition praying for a direction in the nature of Mandamus commanding the respondent no. 5, the Superintendent of Police, Purba Medinapore to start criminal prosecution in terms of the said Act against the existing Officer in Charge, Bhagabanpur Police Station and respondent no. 1 and respondent nos. 7, 8, 9, 10, 11 and 12 for committing an offence of cow slaughter in open daylight in front of Hindu people and direction upon the State of West Bengal to publish notification in all state level Bengali and English daily newspapers published from the state to the effect that in the name 4 of Kurbani and other Muslim festivals no cow slaughter will be permitted in West Bengal in violation of the aforesaid Act in respect of cattle below 14 years of age and without obtaining certificate from the Panchayat Samity or Municipality and Veterinary Officer of the concerned area etc. In their affidavit-in-opposition affirmed by respondent no. 1, Officer in Charge, Bhagabanpur Police Station it has been stated that no such alleged incident did take place on the date as claimed by the petitioners. It is further claimed that the police authorities including the deponent usually hold meetings with local responsible persons of different communities prior to big festivals like Id, Muhharum, Durga Puja and Kali Puja etc. in order to see that religious performances and festivals of different communities may be held peacefully. On 07.12.2008 similar meeting was held at Bhagabanpur Police Station and the police authorities did not abate commitment of any offence and they have also not threatened Hindu community of dire consequences as alleged. In fact there is no merit in this writ petition which is liable to be dismissed.
Learned lawyer for the respondent nos. 8 to 12 has contended that the Kuabani was properly conducted at the material time strictly in accordance with law and as such there is no merit in 5 this application which should be dismissed. They have also mentioned order dated 08.12.2008 passed by the Hon'ble Justice Dipankar Datta in W. P. No. 29363 (W) of 2008 whereby the writ petition was dismissed with clear stipulation in the event the administration is approached by the petitioners with the necessary certificate issued in terms of the Act the competent authority shall proceed to consider their application.
Under the circumstances the issues raised in the writ petition are in brief:
a) Whether cow slaughter during Kurbari on 09.12.2008 in the village of Kishorepore and Bibhishanpur within Bhagabanpur Police Station has been made in violation of the West Bengal Animal Slaughter Control Act, 1950 and rules framed thereunder,
b) If so whether such six cows were below 14 years of age and or/fit for breeding and healthy,
c) Whether no certificate of fitness was obtained from the Bhagabanpur Panchayat Samity or from the Veterinary Officer before such Kurbani, 6
d) Whether the slain animals fall within the schedule of the Act and prohibition made as in Section 2 of the aforesaid Act,
e) In such circumstances whether the Officer in Charge, Bhagabanpur Police Station is responsible for abetment of the crime and is liable to the prosecuted along with the private respondents.
All these points are interlinked and as such taken up together for consideration.
Learned lawyers for the petitioners have claimed that in the instant case the respondent Government authorities did not take adequate precautionary measures to prohibit slaughtering of cattle in violation of the aforesaid Act as well as the direction given by the Hon'ble Apex Court in AIR 1995 SC 464. No action was also taken on the mass petition filed by the local villagers. It is proved beyond doubt from the endorsement of the Veterinary Surgeon that before such Kuabani no certificate was issued by the Veterinary Surgeon concerned or Sabhapati of the local Panchayat as prescribed in the Act being the competent authority. Once an Act has been passed by the Legislature it is the duty of the Executive to see that the same is properly implemented and its provisions are obeyed by the citizen. When specific allegation has 7 been made by the local people of more than 600, it is the duty of the district police authorities to start criminal proceedings against the defaulting officers but in the instant case no such action has been taken by the respondent authorities which has compelled the local people to approach this Hon'ble Writ Court for redress so that communal tension in the locality can be avoided.
Learned lawyer for the State has on the contrary submitted that the source of knowledge of the petitioners has not been disclosed except in paragraph 14 of their petition which is not derived from knowledge and only a matter of record. It will appear from the annexure to the affidavit-in-opposition filed by the respondent no. 1 that on 07.12.2008 a meeting was held in presence of Sabhapati, Bhagapahpur Panchayat Samity I, BDO, Bhagabanpur I, Pradhan Bhagabanpur Gram Panchayat, Pradhan Bemdia Gram Panchayat, Pradhan Kajhagaru Gram Panchayat and Pradhan Bibhishanpur Gram Panchayat and it was unanimously resolved by all concerned that everybody will remain alert and will motivate others to follow the resolution for peaceful observance of Bakri. This is an overt act on the part of the Officer in Charge concerned to maintain peace, law and order in the locality on the date of Kurbani. Moreover, in the definition clause in Section 3 of the West Bengal Animal Slaughter Control Act, 1950 various authorities have been assigned with the duties and responsibilities under the Act but there is no 8 mention of the Officer in Charge of any locality who shall be responsible for implementing the Act. As a consequence for violation of any provision of the Act, the Officer in Charge concerned cannot at all be prosecuted. It is further claimed by the learned State advocate that there was no such slaughtering of cows as alleged by the writ petitioners in open place in violation of Section 4 of the Act and as a consequence the Veterinary Surgeon concerned has rightly endorsed that no such permission was granted by him. If no permission is granted for slaughtering the question of slaughtering the animals in open place does not arise at all and the question of determining their age, potentiality etc. does not arise at all. He has also claimed that it is the duty of the State Government to formulate the policy regarding the manner of implementing an Act passed by the Legislature and no direction should be given to the State Government for publishing any notification in this respect as urged by the learned advocate for the petitioners.
Having heard learned counsels for both the parties and on perusal of the materials on record I find that regarding slaughtering of the cows no detailed information has been collected and furnished before this Court to justify the claim of the writ petitioners. They have claimed that such incident did take place in front of the house of Sk. Sobani of Paschim Tanguria 9 and of Sk. Noushad of Kishorepur village but no villager of those two villages have made any averment in this respect. It is also claimed that after such slaughtering the slaughtered animals were washed in a big tank near by the village where the Hindu people take bath and use the water for drinking purposes and perform immersion of Hindu deities. But the owner of the said tank remains unidentified and location and plot numbers of such tanks are not forthcoming. No corroborative averment is also forthcoming from such owner. In a secular democratic country religious tolerance in every sphere of the society is the essence of maintaining peace and tranquility in a locality which should not be unnecessarily disturbed at the slightest provocation and the Court of law should show much restraint in dealing with such issues.
In Section 7 of the Act penalties for contravention of any of the provisions of the Act has been prescribed and in Section 8 of the Act it has been also identified as a non-cognizable offence. Therefore, there is appropriate remedy for violation of the Act and in case of violation on the part of the police administration to prosecute the person alleged to have committed any offence under the Act the petitioners are at liberty to lodge a complaint before the Court of Learned Chief Judicial Magistrate/ Additional Chief Judicial Magistrate concerned. In absence of sufficient materials and in the context of existence of prescribed method of 10 prosecuting the persons violating the Act the Writ Court should not interfere in the matter since the owners of the land are the tanks in question remain unidentified and they have not lodged any complaint regarding invasion of their right to property on which alleged slaughtering did take place and it also cannot issue any directive to the State Government to implement the Act in a particular way since it would amount to interference in the policy decision of the State Government by the Writ Court. In the instant case it has already been mentioned that the Veterinary Surgeon has clearly stated that no such application was received by him at the material time which is a clear proof of the fact that the allegation of the petitioner is devoid of any merit. It is the District Veterinary Officer and the local Panchayat Samity who are the two agencies on whom certain statutory duties have been assigned under the Act. Under the circumstances the role of Officer in Charge, Bhagabanpur Police Station cannot be called in question as urged by the writ petitioners and I have already mentioned that in conducting pre-Bakri meeting in the locality on 07.12.2008 he had discharged his duties to maintain law and order in the locality and cannot be prosecuted for any act which is not assigned to him under the Act and as such he is entitled to get the immunity contemplated under Section 11 of the Act. 11
In considering the matter I also conceive that directions given in W. P. No. 30187 (W) of 2008 by a Division Bench of this Hon'ble Court by order dated 05.12.2008 to the State of West Bengal to ensure that the provisions of the West Bengal Animal Slaughter Control Act, 1950 and the directions given by the Hon'ble Apex Court in AIR 1995 SC 464 (State of West Bengal -Vs- Asutosh Lahiri) in relation to slaughter of animals are strictly complied with are still operative and no further general direction to the same effect should be given by this Single Bench for the same purpose as urged by the petitioners in prayer (b) of their Writ Petition. There are recognised mode of seeking redress for violation of both the aforesaid directions and for violation of the provisions of the present Act under Sections 7 to 9 thereof. Any aggrieved party is at liberty to take recourse to such prescribed mode the existence of which precludes interference of judicial review by Writ Court.
Considering all these aspects I hold that the petitioners are unable to convince the Court to grant any relief as prayed for. In the result I do not find any merit in this writ petition which is accordingly dismissed.
12Certified photostat copy of this order, if applied for, be supplied to all the parties upon compliance of requisite formalities.
(S. K. Chakrabarti, J.)