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GYAN VEER AND ANR versus STATE AND ANR

High Court of Rajasthan

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GYAN VEER AND ANR v STATE AND ANR - CRLMP Case No. 1009 of 2005 [2006] RD-RJ 2 (1 January 2006)

S.B. Criminal Misc. Petition No.1009/2005

Gyan Veer & Anr. V/s State of Raj. & Anr.

Date of Judgment : August , 2006

HON'BLE MR. JUSTICE R.S. CHAUHAN

Mr. Dilip Sinsinwar, for the petitioners.

Mr. Arun Sharma, PP for the State.

The accused petitioners have challenged the orders dated 22.2.2005 and 7.6.2005 passed by the Additional Chief Judicial

Magistrate, No.4, Bharatpur and by the Additional Sessions Judge,

No.2, Bharatpur respectively. By the former order, cognizance for offences under Section 3/8 of the Rajasthan Bowins Animal

(Prohibition of Slaughter and Regulation of Temporary Migration of

Export) Act, 1995 (henceforth to be referred to as `the Act of 1995', for short) was taken by the learned Additional Chief Judicial

Magistrate, No.4, Bharatpur. By the latter order, the former order dated 22.2.2005 was upheld by the Additional Sessions Judge, No.2,

Bharatpur.

The brief facts of the case are that on 20.5.2003, the complainant-respondent lodged a written report at Police Station

Kumher, District Bharatpur alleging therein that his cow was grazing in the jungle. While grazing, the cow went into the field of Banay

Singh. The accused petitioners, who were working in the field, hit the cow with lathis in order to chase it away. The cow died due to the beatings. On the aforesaid report, the police registered a former

F.I.R., F.I.R. No.207/03 for offence under Section 429 I.P.C. and the investigation commenced. After a thorough investigation, the police submitted a negative final report as no case was found to be made out against the accused petitioners. Thereafter, the complainant filed a protest petition and his statement under Section 200 of Cr. P. C. and that of his witnesses under Section 202 of Cr. P. C. were recorded. Subsequently, the learned Magistrate took cognizance against the petitioners for offence under Section 3/8 of the Act of 1995. Being aggrieved by the cognizance, the accused petitioners had filed a revision petition before the Additional Sessions Judge,

No.2, Bharatpur, who vide order dated 7.6.2005 dismissed the revision petition. Hence, this petition before this Court.

Mr. Dilip Sinsinwar, the learned counsel for the petitioners, has vehemently argued that in criminal jurisprudence, there is a right of private defense of the property. Once the cattle had entered the field and was destroyed the crop standing in the field, the petitioners, who were working in the field, have a right to chase away the cow in order to protect the standing crop. Therefore, the petitioners have committed no offence under the Act of 1995.

Moreover, the object of the Act of 1995 is to protect the animal from the slaughter for the purpose of meat industry. Therefore, the accidental death of the cow is not covered under the provisions of the

Act of 1995. Hence, the essential ingredients of the offence are not made out against the accused petitioners. He has further argued that once the police have submitted a negative final report, the learned

Magistrate was duty bound to give reasons for disagreeing with the negative final report. However, the learned Magistrate has assigned no such reason. Hence, the order dated 22.2.2005 is illegal.

On the other hand, the learned Public Prosecutor, Mr. Arun

Sharma, has argued that there was sufficient prima facie evidence against the petitioners for the learned Magistrate to take cognizance.

Therefore, he has supported the impugned order.

We have heard the learned counsel for the appellant and the learned Public Prosecutor for the State and have perused the impugned orders.

The Act of 1995 was enacted with the object of prohibiting the slaughter of cows calves, heifers, bulls of bullocks belonging to these pieces of one cattle as also "to prohibit the export of such animals for the purpose of slaughter and to regulate for other purposes, the temporary migration or export of such a livestock to safeguard the interest of the general public deriving benefit out of them and to vouch save the genuine necessity of the general public that number of these animals in no way deploys". While interpreting the provisions of the Act, we must keep the object of the Act in mind.

Section 2 (m) defines the word "slaughter" means intentional killing by any method for any purpose whatsoever.

Section 3 prohibits the slaughter of bovine animals as under :-

"3. Prohibition of slaughter of bovine animal.--

Notwithstanding anything contained in any law for the time being in force or in any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter any bovine animal."

Section 4 prohibits the possession, sale or transport of beef and beef products as under :-

"4. Prohibition of possession, sale or transport of beef and beef products.-- Notwithstanding anything contained in any other law for the time being in force, no person shall possess, sale or transport for sale or cause to be sold or transported beef or beef products in any form."

Section 5 prohibits export of bovine animal for the purpose of slaughter and regulates temporary migration or export for other purposes as under:-

"5. Prohibition of export of bovine animals for the purpose of slaughter and regulation of temporary migration or export for other purposes.-- (1) No person shall export and cause to be exported any bovine animal himself or through his agent, servant or other person acting in his behalf from any place within the

State to any place outside the State for the purposes of slaughter or with the knowledge that it may be or is likely to be slaughtered.

(2) Notwithstanding anything contained in sub-section

(1) temporary migration of bovine animal from the famine and scarcity affected areas of Rajasthan may be allowed by the Competent Authority to other States in

India for grazing purposes under a valid permit in the manner prescribed and hereinafter laid down.

(3) Any person residing in any famine and scarcity affected area and desiring migration of any bovine animal shall apply to the Competent Authority having jurisdiction over such areas stating the circumstances necessitating the proposed migration together with the number of bovine animals and name of the State or

States to which migration is proposed and the period for which the permit is required.

(4) The Competent Authority after satisfying itself about the genuineness of the request of the applicant referred in sub-section (3), may grant him a permit in the prescribed form and manner which among other things may provide for affixing of identification mark before such temporary migration of bovine animal is allowed out of the State and in no case the period of said migration shall extend beyond the month of August next following the date of grant of the permit.

(5) On return from temporary migration the applicant referred to in sub-section (3), shall inform the

Competent Authority in writing about the number of bovine animal brought back by him together with the explanation for variations, if any.

(6) If any person does not bring back such bovine animal into the State and also within the period specified in the permit he shall be deemed to have contravened the provisions of sub-section (1).

(7) The Competent Authority may issue special permit in the prescribed manner for export of bovine animal from Rajasthan for agricultural or diary farming purposes or for participation in a cattle fair, and before granting such permission the Competent Authority shall also ensure that such export in no way reduces the number of such bovine animal below the level of actual requirement of the local area.

(8) Any applicant referred to in sub-section (3) or any person seeking special permit under sub-section (7), aggrieved by an order of the Competent Authority made under sub-section (4), sub-section (6) or sub- section (7) may make an application, within thirty days from the date of the order, to the Divisional

Commissioner and the Divisional Commissioner may upon such application or suo-motu call for and examine the record of the case for the purpose of satisfying himself as to the correctness, legality or propriety of any order and may pass such order as it may deem just and proper and such order as it may deem just and proper and such order shall be final and conclusive and shall not be called in question in any civil court."

Section 8 prescribes the penalty as under:-

"8. Penalty.--(1) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of Section 3 shall, or conviction, be punished with a regorous imprisonment for a term which shall not be less than one year but may extent to ten years and with fine which may extent to ten thousand rupees.

(2) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of Section 4 or Section 5 shall, on conviction, be punished with rigorous imprisonment for a term which shall not be less than six months but may extend to five years and with fine which may extend to five thousand rupees."

The definition of the word 'slaughter" has been given in wide terms meaning "intentional killing by any method for any purpose whatsoever". Hence, Section 3 seems to prohibit the slaughter of the bovine animal in the widest terms. However, keeping in mind the object of the Act, keeping in mind the provisions of

Section 4 and 5, Section 3 has to be interpreted as prohibiting slaughter of bovine animal for the purpose of consumption of its meat or consumption of the other by-product of the animal. Section 3 has to be interpreted narrowly. While interpreting Section 3 in the narrower sense, one has to keep in mind Article 21 of the

Constitution of India which guarantees the right to "life" to every person. The right to life also includes "the right to livelihood".

Therefore, the right to life would also give a right to protect one's livelihood. Self-preservation being crucial to the survival of every person, the right to private defence cannot be ousted by the wide terms contained in Section 3. Thus the right to private defence or right to defend one's property would necessarily have to be read as a defence under the Act of 1995. In case Section 3 is interpreted in the widest amplitude as ousting the right of private defence, then section 3 would be contrary to Article 21 of the Constitution. Presently, we are not required to go into the constitutional validity of this Section.

Hence, that question is being left open. But, nonetheless, the right to private defence of body and of property has to be read as a valid defence under the Act. In order to illustrate this point let us take this example : a raging bull enters a hut and is about to trample a small child lying on the floor of the hut. The only option left before the parents of the small child is to kill the bull in order to save the life of their small child. In order to save the small child the bull is, indeed, killed. Under the terms of Section 3 it seems that the parents have violated Section 3 and are, therefore, punishable under Section 8.

However, considering the fact that the life of the child was endangered by the raging bull, considering the fact that it is instinctive for the parents to save the child, the right of private defence would be a valid defence for a case under Section 8 of the

Act.

In the instant case the cow had threatened the standing crop which needed to be protected. In case the cow was permitted to damage and destroy the crop, it would have adversely affected the livelihood and the existence of the poor farmer who was dependent on the crop. In order to protect the crop the petitioners have exercised the right of private defence. Since only a bamboo stick (Lathi) was used to hit the cow, there is neither the intention nor the knowledge that by such an act that would cause the death of the cow in sufficient course of nature. Their intention at that moment seems to be to chase the cow away from the standing crop.

Unfortunately the cow scummed to the injuries.

While judging any criminal act, the Court cannot be oblivious the existence of mens rea. Therefore, even while taking cognizance the Court should have considered the existence of the required mens rea the intention to kill the cow. In the present case, there is neither the intention to kill the cow nor the cow has been killed with the intention of using its meat for consumption or for using its by-product for any purpose. The singular intention was to protect the crop from damage and destruction. Considering these aspects the ingredients of Section 3 are not made out in the present case.

Therefore, this Court has no option but to quash and set aside the cognizance order dated 22.2.2005 and also to set aside the revision order dated 7.6.2005.

In the result, this petition is allowed and the orders dated 22.2.2005 and 7.6.2005 are quashed and set aside.

( R.S. CHAUHAN ) J.

MRG.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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