As far as this aspect of the case is concerned, the learned Magistrate was not wholly justified because it is open to the trial Magistrate to exercise powers u/S. 258 of the Code of Criminal Procedure. In summary proceedings where the accused claims to be tried, the procedure specified in the code under Chapter XX, for the trial of summons cases is required to be followed. It is true that Chapter XX does not make any provision for discharge of the accused but S. 258 very clearly specifies that at any stage of the trial, the Magistrate may stop the proceedings. It is implicit that if it is brought to the notice of the Magistrate at any stage of the proceedings, that there is no evidence or that the charge is groundless, he may forthwith stop the proceedings and acquit the accused. To this extent, therefore, the learned Magistrate was not justified in having rejected the application filed by the petitioners on the ground that no powers were vested in him.
Bombay High Court
Shaikh Ahmed Hussain And Another vs State Of Maharashtra on 6 November, 1990
Equivalent citations: 1991 (2) BomCR 392, 1991 CriLJ 2303, 1991 (1) MhLj 77
Bench: M Saldanha
1. The petitioners in this case are residents of Nasik City. Petitioner No. 1 is a member and shareholder of the Nashik Krishi Utpanna Bazar Samiti and possess a licence for trading in animals. Petitioner No. 2 is a permanent resident of village Waygaon. Taluka Chandwad. He states that his profession is an agriculturist having his lands in Waygaon village. It is alleged that on 17th August 1980, the petitioners had purchased six bullocks from the Panchvati Market Yards and that the police apprehended them on the road on suspicion that they were taking the bullocks for purposes of slaughtering them. The petitioners state that they explained to the police authorities that the bullock have been purchased for agricultural purposes but that the police refused to accept their contention. The animals were seized under a panchnama and the police also recorded the statements of certain persons who were present there. The petitioners were thereafter charge-sheeted under the provisions of Ss. 5 and 11 of the Maharashtra Animal Preservation Act, 1976 before the Judicial Magistrate, First Class, Nasik. Thereafter, the petitioners preferred an application before the learned Magistrate under the provisions of S. 482 of the Code of Criminal Procedure praying for discharge on the ground that no case has been made out against them. The learned Magistrate by his order dated 26-10-1988 rejected the application, and to my mind rightly so, the principal ground being that the inherent powers exercisable u/S. 482 of the Code of Criminal Procedure are powers that can be exercised only by the High Court and not by the trial Court and the learned Magistrate further held that he had no power for discharge of the accused in the present case as he was required to follow a summary procedure which did not make provision for discharge of the accused. As far as this aspect of the case is concerned, the learned Magistrate was not wholly justified because it is open to the trial Magistrate to exercise powers u/S. 258 of the Code of Criminal Procedure. In summary proceedings where the accused claims to be tried, the procedure specified in the code under Chapter XX, for the trial of summons cases is required to be followed. It is true that Chapter XX does not make any provision for discharge of the accused but S. 258 very clearly specifies that at any stage of the trial, the Magistrate may stop the proceedings. It is implicit that if it is brought to the notice of the Magistrate at any stage of the proceedings, that there is no evidence or that the charge is groundless, he may forthwith stop the proceedings and acquit the accused. To this extent, therefore, the learned Magistrate was not justified in having rejected the application filed by the petitioners on the ground that no powers were vested in him.
2. The petitioners thereafter carried the case in revision before the Sessions Court at Nasik. The learned Additional Sessions Judge by his order dated 21-2-1989 rejected the revision application filed by the petitioners principally on the ground that there was no power vested in the learned Magistrate to stop the proceedings. The learned Additional Sessions Judge had held, and erroneously to my mind, that the accused were facing trial u/S. 260 of the Code of Criminal Procedure, which does not provide for discharge or stoppage but the learned Judge simultaneously overlooked the fact that S. 262 of Chapter XX provides that the procedure in summary trial cases shall be as enunciated in Chapter XX of the Code viz., the procedure prescribed for the trial of summons cases. The learned Judge has further observed that there is prima facie material before the Court for purposes of concluding that the evidence does make out a charge against the accused and, therefore, that they should stand trial.
3. Mr. Shaikh, learned Advocate appearing on behalf of the petitioners has drawn my attention to the provisions of Ss. 5 and 11 of the Act and pointed out that on the material placed before the Court, there is no ground whatsoever for the trial Court to proceed against the present petitioners and that consequently, the criminal proceedings are liable to be quashed.
4. For this purpose, a reference to Ss. 5 and 11 of the Act is necessary, which read as follows :
"5. Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer for slaughter any cow; in any place in the State of Maharashtra.
11. Whoever abets any offence punishable under this Act or attempts to commit any such offence shall be deemed to have committed that offence and shall, on conviction, be punished with the punishment provided for such offence u/S. 9."
As far as the provisions of S. 5 of the Act are concerned, there is no dispute about the fact that the Act prescribes a total ban on the slaughter of cows and reading the definition of "cow" as set out in S. 3, the term "cow" would include a heifer or male or female calf of a cow. The Section, however, seeks to punish persons who have committed the act of slaughter of an animal which comes within this category and, therefore, there can be no dispute about the fact that S. 5 would not apply to the facts of the present case.
5. The reference to S. 11 which deals with abetment and attempt to commit offences is of a slightly wider import and it is obvious, that by invoking the provisions of S. 11, the authorities, in this case, have sought to contend that since it was the allegation of the prosecution that the animals in question were being taken to a slaughter house for the purposes of slaughter, that the same constitutes an attempt and is punishable u/S. 11 of the Act.
6. In this connection, Mr. Shaikh referred to an unreported decision of this Court in a similar case, being Criminal Appln. No. 288 of 1984, decided by Khatri, J. on 6th July 1985. The High Court had taken the view that merely because the accused were found driving 23 head of cattle and merely because it was suspected by the prosecuting authority that the accused were likely to take these animals for slaughter that the conclusion was wholly unjustified that the same would constitute either abetment or an attempt. The principle enunciated by Khatri, J. in that case very clearly amplifies the point that before an accusation can be levelled under the provisions of S. 11 of the Act, it must be demonstrated that the accused persons had been abetting the actual act of slaughter of one of the prohibited categories of animals. As far as the attempt is concerned, it would cover those categories of cases where all necessary steps for purposes of slaughtering the animal concerned have been taken, such as taking the animal to a slaughter house or to a place for slaughter, bringing implements necessary for this purpose and such other activities that would lead to the irresistable conclusion that the accused were engaged in an attempt, which, if not stopped, would have resulted in the slaughter. Similarly, S. 11 would cover one more category of cases viz., a situation where a herd of animals is being driven towards a slaughter house and it is discovered that some of the prohibited categories of animals are mixed up in that group. It would be difficult in that event to argue that the intention of taking that animal to the slaughter house was for any purpose other than slaughtering. It is further essential to sound a note of caution particularly in an agrarian set up such as that which prevails in this country that merely because a group of animals is taken in a particular direction, that the conclusion is irresistible that the animals are being driven towards the slaughter house. There may be special circumstances such as the fact that the persons who had the custody of the animals are regular and habitual traders in meat business and that the animals were kept at such a place where slaughter normally takes place, in which case, the onus of proof would shift to the accused to show that the animals were there for some other purposes. In the light of this position, there is considerable justification in the grievance put forward by Mr. Shaikh, learned Advocate appearing on behalf of the petitioners that the prosecution in the present case was misconceived.
7. In the course of his submission, Mr. Shaikh has pointed out that the petitioner No. 1 is a dealer in cattle and that petitioner No. 2 is an agriculturist. It is nothing unusual for these persons to be found in possession of several head of cattle. He has pointed this out by producing a copy of an earlier judgment that merely on the basis of suspicion or unfounded apprehension that the authorities concerned have been taking action through prosecution with the result that the petitioners' right to carry on trade and profession is seriously impaired. It is precisely for this reason that the petitioners have been required to move this Court for purposes of quashing of the present prosecution. The grievance projected by Mr. Shaikh is justified and it would, therefore, be necessary for the authorities concerned with the implementation and execution of the provisions of the Act to be both cautious and selective before launching prosecutions. Undoubtedly, it is an important duty of the police and other authorities to ensure that the provisions of the Act are strictly complied with, but that will not justify any misuse of the powers under the provisions of the Act.
8. Mr. Patil, learned Public Prosecutor has submitted that a perusal of the statements of the witnesses indicates some stray reference to the effect that the bullocks in question were to be taken for slaughter. A perusal of these statements, however, will indicate that these indirect references would not in any way carry the prosecution case any further. In a decision of the Allahabad High Court, Broom, J. had observed that there exists a distinction between mere preparation and attempt. In that case, the learned Judge had taken the view that even though a cow was tied down and even though the accused were found with a knife, that it could only argued that they had only prepared and that they had not committed any attempt at slaughter. A vital distinction was sought to be made between the actual commission of an offence which begins by the infliction of an injury and a mere preparation. With utmost respect, I am unable to agree with this distinction because in a situation where all necessary steps have been taken for the process of slaughter, the mere fact that the accused were stopped short of the actual commission would not, in my judgment, be sufficient to draw any such distinction. However, as far as the present case is concerned, we would have to be guided by the observations of the Supreme Court as where the Supreme Court has
rightly observed that there are instances where the High Court would be justified in taking into account special facts and circumstances on the basis of which the Court concludes that a prosecution is liable to be quashed for the reason that the material placed before the trial Court is of such a nature that it would not result in a conviction and consequently, the continuance with the prosecution would be unjustified. The present case is one which squarely falls in that category and consequently, the continuance of the prosecution is unjustified and the same is liable to be quashed.
9. In the result, the petition succeeds. The criminal proceedings, being Criminal Case No. 1980 of 1988, pending before the Judicial Magistrate, First Class, 3rd Court, Nasik are quashed. Rule is made absolute accordingly in terms of prayer (a).
10. Order accordingly.
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