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Queen-empress Vs. ZakiuddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All44
AppellantQueen-empress
RespondentZakiuddIn and anr.
Excerpt:
public nuisance - slaughter of kine by muhammadans on their own property--act xlv of 1860 (penal code), sections 268, 290. - - in this country it must often happen that acts are done by the followers of a creed which must be offensive to the sentiments of those who follow other creeds. for, if a person wilfully slaughtered cattle in a public street so that the groans and blood of the poor beasts were heard and seen by the passers-by, he would commit acts that would necessarily cause annoyance to every one of them, hindu, european, muhammadan or other, who was not utterly devoid, not merely of refinement, but also of all proper feeling:.....the carcasses, and had thus committed a public nuisance punishable under section 290 of the indian penal code.3. the magistrate observes: 'the place in which the slaughter occurred was a compound by the house of the defendants. the wall of the compound has fallen into ruin, and the compound is visible from a high road which passes it. only one person for the prosecution says he saw the actual slaughter, and he professes to have been on a visit to the defendants. his evidence, at least, is of no use to prove a public nuisance. the case against the accused can only be based on more general grounds, namely, that the slaughter was committed, and that such an event would necessarily cause annoyance to hindu passers-by. if this were the result, the case would arise under section 290 of the.....
Judgment:

Brodhurst, J.

1. The two applicants have applied for revision of an order of the officiating Magistrate of Pilibhit, by which he convicted them under Sections 290 of the Indian Penal Code, and sentenced them each to pay a fine of Rs. 2.

2. The Magistrate found that the applicants had killed two cows in their compound, and had there cut up and disposed of the carcasses, and had thus Committed a public nuisance punishable under Section 290 of the Indian Penal Code.

3. The Magistrate observes: 'The place in which the slaughter occurred was a compound by the house of the defendants. The wall of the compound has fallen into ruin, and the compound is visible from a high road which passes it. Only one person for the prosecution says he saw the actual slaughter, and he professes to have been on a visit to the defendants. His evidence, at least, is of no use to prove a public nuisance. The case against the accused can only be based on more general grounds, namely, that the slaughter was committed, and that such an event would necessarily cause annoyance to Hindu passers-by. If this were the result, the case would arise under Section 290 of the Indian Penal Code. I assume that the carcasses were cut up at the place indicated by the defendants, and that if they were about a foot high, they would not be visible from the road. At such a place they would not, when merely laid out, annoy passers-by. At the same time the previous felling for slaughter, if there were any passers-by at the time, would be visible; and the stir and moving about of the persons cutting up the carcasses would, in the ordinary course of things be noticed by persons on the road, even if they could not see the carcasses or cut-up meat. I do not understand it to be pleaded that these occurrences could be hidden from the road.'

4. The Magistrate finds that the slaughter took place ' at quite early morning,' and remarks, 'as to the witnesses, I have already expressed my doubts about them and their way of representing the occurrences and their recourse to the spot. The accused pleaded that they killed only two cows; that they killed them on the 11th September 1886, merely with a religious object and without any intention of annoying the Hindus; that they killed them in their own compound, where they had on former occasions sacrificed kine, and that a similar charge, preferred by the Hindus in 1865, was dismissed.'

5. The Magistrate observes: ' The defence which seems to me to deserve most consideration is this, that there must be taken to have been a refusal to interfere in this matter in 1865, and a certain measure of uncertainty about the matter since.'

6. It appears that, on the 11th September 1886, two cows were killed with a, religious object in the compound of the accused; that they were killed before sunrise; that at the most, the killing of one cow was witnessed by merely one Hindu, and by him only because he unfortunately chose that day and an unusually early hour to pay a visit to his Muhammadan acquaintances. No one else is found to have seen the killing of the cows or the carcasses or the out-up meat. If a few Hindus passing by a private compound can have the ocoupants of that compound punished for a public nuisance merely because they have seen the occupants moving about in their compound, and imagine that they are engaged in cutting up the carcasses of cows, much more could the butchers, who, in the exercise of their trade, carry beef for Sale through the streets of almost every station in British India, be punished for a public nuisance.

7. Sir Charles Turner, in his judgment in Muttumira v. Queen-Empress I. L. R. 7 Mad., 590, observed: ' A public nuisance is defined in the Penal Code as an act or omission which causes any common injury, danger, or annoyance to the public or people in general, who dwell or occupy property in the vicinity, or which must necessarily cause obstruction, danger, or annoyance to persons who may have occasion to use any public right. It is obvious from the language of the Act that it was not intended to apply to acts or omissions calculated to offend the sentiments of a class. In this country it must often happen that acts are done by the followers of a creed which must be offensive to the sentiments of those who follow other creeds. The scope of the provision we are considering is to protect the public or people in general, as distinguished from the members of a sect, from injury, danger, or annoyance in the neighbourhood of places where they dwell or occupy property, or when they have occasion to use a public right.'

8. I am by no means prepared to hold that a slaughterer of cattle could under no circumstances be convicted of a public nuisance as defined in Section 268 of the Indian Penal Code; for, if a person wilfully slaughtered cattle in a public street so that the groans and blood of the poor beasts were heard and seen by the passers-by, he would commit acts that would necessarily cause annoyance to every one of them, Hindu, European, Muhammadan or other, who was not utterly devoid, not merely of refinement, but also of all proper feeling: and he undoubtedly would, in my opinion, be punishable under Section 290 of the Indian Penal Code.

9. As regards the petitioners, however, I consider that, under the circumstances I have above mentioned, they have been wrongly convicted. I therefore set aside their convictions and direct that the fines, if realized, be refunded.

10. In conclusion, I may add that I think the Muhammadans of Pihbhit are entitled to know whether or not they may on special occasions, for religious purposes and under certain restrictions, be permitted, as Muhammadans are, I believe, in many other places in British India permitted, to sacrifice kine on their own premises. If they are allowed to do so, a clear municipal rule should be framed so as to ensure that cattle killed under such circumstances should he slaughtered, and the carcasses disposed of, in such a way as to cause the least possible annoyance to Hindus and other persons.


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