1. The applicants seek to set aside in revision an order of Thakur Hanuman Singh, Magistrate of the 1st Class, dated 12th March 1910. By this order the Magistrate bound over the fifteen applicants under Section 107, Criminal Procedure Code.
2. Applicants are Jolahas, resident of Bahadurgunj in the Ghazipore District. The Magistrate describes them in his order as the leading and more influential men' among the jolahas.
3. We think it necessary to state the view of the facts we take, because such view may not be quite consistent with some passages in the order of the learned Magistrate. Nevertheless we think our view thereof is correct and that this clearly appears not only from a perusal of the Police reports and evidence, but also from the order of the Magistrate himself, reading the latter as a whole. In the year 1893, the leaders of the Mohammadans and Hindus assembled in Ghazipur and came to an agreement that they would mutually abstain as far as possible from doing anything to hurt each other sreligious feelings. This most proper understanding seems to have worked well for a number of years. In 1908 at the Bakr-Id, jolahas of Bahadurgunj began to assert their right to sacrifice cows, probably, as the learned Magistrate says, in retaliation to the blowing of conch' by the Hindus too near their mosque. The joint Magistrate was on the spot and succeeded for the time being in settling the matter. The) principal men of the community signed an undertaking not to kill cows. This undertaking was not complied with and certain persons were bound over to keep the peace. In 1909 a suit was instituted by one Yakub claiming on behalf of the jolahas a declaration of their right to kill cows. It is quite clear that this suit was intended to be a test case ' and that every step was being taken under professional advice. We think that this was a very proper proceeding and that each party ought to have facilitated a full trial on the merits which would settle, once and for all, the rights of the parties, and whether such rights were being exercised in a legal manner. We say no more as the case is said to be still pending. In the Bakr-ld of the present year, two cows were actually sacrificed quietly and secretly in a mosque and a private house. This was at once reported by the persons concerned to the Police. The sacrifices were carried out so quietly hat the Hindus did not know of them until the report was made. After this the Magistrate took action and bound over the Mohammadans. Two witnesses, a convicted dacoit and a peon, both Musalmans, gave evidence as to a cow's head being carried in public. Prior to the sacrifices, the Mohammadans had given no hint of their intention to carry; them out. There was no rioting. The Hindus became excited but the Magistrate calmed them down and then proceeded to bind over the other side. He, on information, came to the conclusion that the jolahas were determined to sacrifice cows and that if they were allowed to do so, the Hindus would resist and there would, in all probability, be a breach of the peace on future occasions.
4. We are quite satisfied that the Magistrate / had not the smallest ground for thinking that the jolahas (far less any of the applicants) were going to sacrifice cows in an improper manner. We mean by this, in a manner unnecessarily offensive to the Hindus, e.g., near a Hindu temple. As to the head of a cow being taken out and paraded in the street or thrown into a temple, we do not believe one word of it. The two witnesses, who depose to it are unworthy of any credit. If such a thing had happened, there would have been abundance of proper evidence and the culprit could have been dealt with under the Penal Code. The report of the sacrifice was clearly made at the thana in connection with the test case and not for the purpose of irritating the Hindus who happened to be there. We arc satisfied that the jolahas, particularly the leading men among them, (and the Magistrate says that the applicants are the leading men) would, under the circumstances, have been most careful to do nothing to prejudice their test case. Nothing could 1)3 more prejudicial to the case than for the Mohammadans to purposely and unnecessarily insult and irritate the Hindus. The question then is was the Magistrate justified in making the order against the applicants simply because he was satisfied that they in conjunction with their co-religionists were determined to sacrifice and would' sacrifice cows and that such sacrifice, no matter how carried out, would so irritate the Hindus that there would be a collision involving a serious breach of the peace. (Counsel for the applicants contends that the jolahas were within their legal rights, and that if they were, it was the leading and influential men' among the Hindus who ought to have been bound over, and that, apart altogether from the legal aspect of the case, it was hardly equitable to bind over only one side. We think that there is great force in this criticism. The question of the right of Muhammadans to slaughter cows came before this Court in the case of Shahbaz Khan v. Umrao Puri 30 A. 181, 5 A.L.J. 117 : A.W.N. (1908) 64 : 7 Cr. L.J. 381. A Bench of this Court held that it is the legal right of every person to make such use of his own property as he may think fit provided that in so doing he does not cause real injury to others or offend against the law, even though he may thereby hurt the susceptibilities of others. At page 184 of the report, the Chief Justice says: We may also say that it is in the highest degree desirable that the members of the different religious persuasions, who are to be found in this country, should, in the observance of their religious ceremonies as well as in the exercise of their lawful rights, show respect for the feelings and. sentiments of those belonging to different persuasions, and avoid anything calculated to irritate the religious susceptibilities of any class of the community. But when a question in which the ordinary rights of property are involved comes before us, we must, before we can allow those rights to be infringed, endeavour to find the existence of some principle or rule of law justifying a ruling that the ' wishes or susceptibilities of individuals can be allowed to override such rights.' We entirely agree with these remarks and we think they apply with great force to the present case. 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 tranquility 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. If the order was intended (as we think it was) absolutely to prevent the applicants and their co-religionists from killing cows, the order was not justified and is illegal. The Magistrate says: ' to prevent them doing overt' acts likely to cause a breach of the ' peace etc., it seems to me necessary to bind the leading and more influential men among them under Section 107.'
5. We allow the application and set. aside the order. 13ail bonds etc., will be discharged