Patna High Court
Pir Ali Kasab And Ors. vs Emperor on 15 October, 1919
Equivalent citations: 56IND. CAS.437, AIR 1920 PATNA 550
JUDGMENT Das, J.
1. This application is directed against an order of the Sub Divisional Magistrate of Jahanabad directing the petitioners under Section 118, Criminal Procedure Code, to each execute a bond of Rs. 200 with two sureties to keep the peace for ore year. Proceedings were taken under the provisions of Section 107, Criminal Procedure Code.
2. It appears that the petitioners entitled a dedicated bull to the house of one of them and slaughtered it and at sight for the cake of the mean and the value of the skin. Some of the neighbours discovered the purpose of the petitioners and the Police took up the matter. A case under Section 295 and Section 429 was started against the petitioners, but they were ultimately discharged on the 7th July last. Meanwhile the Police recommended initiation of proceedings under Section 107 of the Code, and the petitioners, having been discharged on the 7th July, were arrested on the morning of 8th July.
3. The Police report, upon which proceedings were initiated stated that the action of the Muhammad (sic) had created a sensation among the Hindus of the locality and wounded their feelings, and, as it was expected that the petitioners as butchers would not give no their habit but would commit such mischief at any moment which might disturb public tranquillity, they ought to be bound down under Section 107 of the Code. Upon this report the learned Magi-trite, acting under Section 112 of the Code, called upon the petitioners to show cause why they should not be bound down to keep the peace on the grounds that they have seriously offended the religious feelings and the sentiments of the Hindu public by killing a dedicated bull and are lively to commit similar acts, which are calculated to wound the religious feelings of the Hindu community and to cause serious breaches of the public pease and tranquillity.
4. The first question that arises for my consideration is, what wan the justification of the learned Magistrate to take Proceedings under Section 107 of the Code? The learned Assistant Government Advocate suggests that the Magistrate was informed that the petitioners were likely to do a wrongful act that may probably occasion a breach of the prase or disturb the public tranquillity. It is, in my view, an essential condition of the jurisdiction of the Magistrate to act under Section 107, of the Code that he should have some tangible evidence that some definite wrongful act is contemplated which act, if committed, is likely to cause a breach of the pease. Now, is there a suggestion, either in the Police report or in the notice issued by the learned Magistrate, that a definite wrongful ant was contemplated by the petitioners? in my judgment, there is none. In the case of Romesh Chunder Sanyal v. Hiru Monda 17 C 852 : 8 Ind. Dec. N.S. 1112 it was ruled that where a dedicated bull was killed by certain Mohammadans for the sake of the meat and the value of the skin, there was no offense under Section 295, Indian Penal Code. The Allahabad High Court went elaborately into the question in the case of Shahbas Khan v. Uwrao Puri 80 A. 181 : A.W.N. (1908) 64 : 5 A.L.J. 147 : 7 Cr.L.J. 381. The learned Judges expressed their opinion as follows: In view of these authorities it appears to us indisputable that under certain limitations the laughtering of kine by Muhammadans is not illegal. It is the legal right of every person to make such use of his own property as be may think fir, provided that in doing so he does rot cause real injury others or offend against the law, even though be may thereby hurt the suscapabilities of others."
5. The Assistant Government Advocate than contended that a wrongful act does not necessarily mean an act forbidden by the Penal Statutes. According to him it mean an ant not correct of justifiable in fast or morals, in other words, an improper act. I cannot assent to this argument. Once we concede this preposition, there would be no end to the difficulties of our Criminal Courts, difficulties in having to distinguish between right and wrong from the moral standpoint. An act which may seem wrongful not to one individual, to one seat, to one community, may be a highly meritorious act. in the estimation of another individual another spot, another community. Who is to set this standard of right and wrong for our Criminal Court? If the words wrongful act " are interpreted as suggested by the learned Assistant Government Advocate, the consequence would be that, they would stand absolutely without limit of any kind In my view, words which are clearly wide in their meaning must be qualified in some way and ought to receive tome limitation. That limitation, in my judgment, is to be found in the Penal Statutes of India. The case relied upon by the Assistant Government Advocate, the case of Empe or v. Murli Singh 33 Ind. Cas. 912 : 33 A. 775 : 18 Cr. L.J. 170, does not help him at all. In that, case is was held that persons who performed religious ceremonies in a place not set apart for the purpose and where no such ceremonies had been performed before, and who did so with the deliberate intention of triumphing over intuiting and wounding the religious feelings of their neighbours, committed a wrongful act within the meaning of Section 107 of the Code Clearly such acts are forbidden by the Indian Penal Code. I hold that the words ' wrongful act" in Section 107 of the Code mean an act forbidden by the Penal Statutes of India or declared to be penal or wrongful by such Statutes.
6. If I am right in. the view which I take of the section, then clearly there was no jurisdiction in the Magistrate to act under Section 107 of the Code, To adopt, the words of Biahards and Tud ball JJ., in the case of Mohammad Yukub v. Emperor 6 Ind. Cas. 454 : 32 A. 571 : 7 A.L.J. 649 : 11 Cr.L.J. 355, To justify an order under Section 107 of the Criminal Procedure Code, the Magistrate must believe that the person against whom he makes the order is about to commit a breach of the peace or to disturb the public tranquillity or to do some wrongful act that may probably occasion a breach of the peace. In our judgment there was no reason to believe that any of the applicants were about to do any of these things," This was a case where cows were sacrificed quietly and secretly in a mosque and a private home, and the Allahabad High Court set aside the order under Section 107 against the petitioners.
7. I hold that the proceedings against the petitioners were not warranted by law and that consequently the order must be Bet aside.
8. I ought to mention that some arguments were advanced by the learned Assistant Government Advocate on the evidence adduced in the case, namely, that the petitioners went to the local mosque with musical instruments playing and shouting that they would henceforth kill cows and bulls in open streets and lanes so that the Hindus could do nothing. 1 have grave doubts whether thin evidence was admissible, inasmuch as the Magistrate clearly did not act on any information of this definite contemplated act on the part of the petitioners. "It was argued, however, that this was evidence of conduct in support of the allegations on which proceedings were initiated. I am of opinion that if there was anything in the allegations themselves on which proceedings could be initiated, evidence of subsequent conduct would be admissible in support of those allegations. Bat if on those allegations the learned Magistrate had do jurisdiction to act, evidence of subsequent conduct is not admissible in order to confer a jurisdiction when there was none originally. I have come to the conclusion that, in this case, the Magistrate bad no tangible evidence that some definite wrongful act was contemplated which act, if committed, might cause a breach of the peace. That being no, ha had no jurisdiction to act under Section 107 of the Code at all.
9. I allow this application, set aside the order complained against and direst that the bail bonds be discharged.