Reserved
Court No. - 53
Case :- APPLICATION U/S 482 No. - 23362 of 2018 Applicant :- Smt. Maimoona Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Parvez Alam Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
1. Heard Sri Parvez Alam, learned counsel for the applicant and Sri J.B. Singh, learned A.G.A. along with Sri Mayank Awasthi, learned Advocate appearing on behalf of the State.
2. A short counter affidavit has been filed on behalf of the State, to which the applicant has filed a rejoinder affidavit.
3. It is agreed between parties that no further detailed affidavits are required and the matter can be disposed of finally on the basis of material available on record.
4. This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the proceedings of Criminal Case no.2079 of 2018, State vs. Wasim and others (arising out of Case Crime no.866 of 2017), under Section 3/5/8 of the U.P. Prevention of Cow Slaughter Act, Section 11 of the Prevention of Cruelty to Animals Act and Section 441, 414, 420 IPC, Police Station Shahganj, District Agra, pending before the Special Chief Judicial Magistrate, Agra.
5. The case of the prosecution as set out in the First Information Report-cum-Recovery Memo (registered vide G.D. Entry no.074 at 22:45 hours), of which one Pushpendra Kumar, a Sub-Inspector of Police is the first informant, is to the effect that the informant who is a Sub-Inspector posted at Police Station Shahganj, District Agra, left Station vide GD Entry no.51 at 15:44 hours in order to oversee maintenance of law and order, checking of movement of suspicious persons, and, vehicles and arrest of nominated and wanted accused. He had proceeded on his beat for the purpose aforesaid to a certain Shankargarh culvert when he got information from an informer that the accused wanted in connection with Case Crime no.732 of 2017, under Sections 147, 148, 149, 323, 354, 504 IPC are present at his new house at Kesar Vihar, and that, some other companions of his were also present inside house; that acting on the said information the Sub-Inspector sent message over his wireless set to the Station calling for requisite force, in response to which the mobile squad from the Police Station along with Constables whose names are detailed in First Information Report arrived; and, that the police team chalked out a plan to apprehend the wanted accused.
6. The police party along with informer proceeded to the place where the accused were said to be congregated, and, on the informer's pointing, the police party reached a house located behind the Sun Flower School at Kesar Vihar in a lane 50 steps down left, to which the police informer pointed as the newly acquired house of Wasim that is located adjoining the house of Afjal; that the informer said that Wasim along with his associates/ companions was present inside and left the police to their job; that the police team raided the house where Wasim was supposed to be, surrounding it on all sides; that the police party detected water outlet laced with blood flowing out of the house to a drain located outside; that on gaining entry to the house the police party found in the courtyard that a man was chopping animal meat that was being stuffed by Afjal son of Sabudeen into a box of thermocoal placed over a black coloured Scooty; that on seeing the police enter, the four persons who were there went up the staircase leading to the roof and despite a chase being given managed to make good their escape via the roof top exiting the house at the second floor; and that the accused could not be apprehended.
7. The man who was chopping the meat was identified by the local Constables posted on the Chitaah Dharmveer Nagar and Navin Kumar as Wasim son of Rashid; that the police party on their return from the roof top to the courtyard found a cow with her limbs – all four and her mouth – trussed up with a plastic rope lying in the courtyard; that the cow was relieved of bondage; that beneath the wall and on the floor there was fresh blood and in the courtyard there was no feed and water for the cow; that made it more than evident that the cow was lying trussed up to be slaughtered; that the pieces of meat recovered was found to have telltale skin and hair indicating it to be that of the bovine specie; that knives and chopper, all dripping with blood were placed into a plastic bag together with an electronic weighing scale; that finding all these more than obvious evidence of cow slaughter, the police party attempted to secure witnesses from the public around the place of occurrence, where the gathered multitude of persons from the locality affirmed the fact that the said house was often used to slaughter cows, wherefrom meat was supplied using the Scooty parked; that the locals also indicated that the Scooty and another motorcycle there appeared to be a stolen vehicles as their colour had been redone from white to black; and, that, however, on being asked to stand witness to the recovery the gathered locals refused to divulge their names revealing that the person concerned was a butcher and a dangerous man of whom citing apprehension to their lives, the gathered locals withdrew to the safety of their homes, closing doors behind them.
8. Under the said circumstances the police party treating each other as witnesses drew up a recovery memo of two choppers, an iron tool used in impaling, seven knives used for the purposes of slaughter, four jute ropes, five iron chains used in confining cattle, a bell, iron scales and the thermocoal box filled with meat, the electronic scales, one cow aged 3 years with blackish brown coat, and white forehead, all taken into custody and recorded in the recovery memo; that the meat was weighed was found to be 34 kg. and was sent to the Government Veterinary Doctor; that all that was recovered was photographed on the spot duly sealed with model seals being retained; and that the vehicles also with each of their registration numbers and other numbers, Make and Models were taken into police custody and sealed away as case property with the memorandum of recovery being signed by the police personnel present.
9. The entire memorandum of recovery was registered as such as a first information on the basis of which FIR giving rise to the impugned charge sheet was registered as already detailed hereinbefore. In support of the prosecution case, statement of a neighbour of the main accused Afasar Ali was recorded besides the confessional statement of co-accused Bhola @ Nijam, the statement of the informant, Sub-Inspector Pushpendra Kumar was recorded, all of which support the prosecution case.
10. Learned counsel for the applicant, Sri Parvez Alam has argued that the applicant is not named in the First Information Report and her name has appeared through the confession of a co- accused. It has been argued with much emphasis by learned counsel for the applicant that the allegation in the First Information Report is with regard to cow slaughter whereas no cow meat has been found in the medico-legal report where the Doctor has certified the recovered meat to be that of a buffalo. It is argued further that the allegation of recovery of a cow from the courtyard with her limbs and mouth tied up about to be slaughtered will not travel beyond the stage of preparation and into the realm of attempt. Since preparation to slaughter is not punishable under the U.P. Prevention of Cow Slaughter Act, no offence is made out. He has argued that for the most, the offence under Section 11 of the Prevention of Cruelty to Animals Act, 1960 may be said to be disclosed. The submission regarding the legal proposition that preparation to slaughter is not punishable under the U.P. Prevention of Cow Slaughter Act is sought to be buttressed by the learned counsel for the applicant by placing reliance on a decision of this Court in Kailash Yadav and others vs. State of U.P. and another, (2009) ILR 1 All 31.
11. Sri J.B. Singh, the learned A.G.A. has repelled the submissions of the learned counsel for the applicant. He submits that the accused had gone way ahead the stage of preparation and definitely were in the realm of attempt. He submits that the act of the accused in trussing up the cow in all her limbs and also the mouth was an act of disablement of the cow where slaughter was imminent and moment away. But for the arrival of the police the accused would have accomplished the crime that was thwarted due to the police raid in the nick of time. Thus, according to Sri J.B. Singh, attempt is clearly made out.
12. No doubt in Kailash Yadav (supra) the said case it has been laid down that preparation to slaughter would not be an offence under the U.P. Prevention of Cow Slaughter Act, but the said principle has been laid in the context where allegations were that apprehension of the accused took place while they were transporting bullocks and at that stage it was inferred by the prosecution that the transportation was for the purpose of slaughter. In the present case, the nominated accused had trussed up the cow, tying up her limbs and mouth where it is difficult to say, at least, in exercise of the powers to quash the charge sheet under Section 482 Cr.P.C., where the stage of preparation had ended and the accused traversed to the stage of attempt. The circumstances in which prima facie the cow was rescued cannot lead the court to a conclusion in the present proceedings that there were chances of the accused exercising a locus poenitentiea. They would as the prosecution say have proceeded to slaughter, may be within a few minutes, in case the police party had not raided. The submission, therefore, that the stage of attempt had not begun is a matter now that is to be appreciated at the trial and not in these summary proceedings to quash the charge sheet. The other submission of the learned counsel for the applicant that the applicant is a woman and not named in the FIR also would not entitle her to have the charge sheet quashed. There is material in the case diary appearing against her that may withstand scrutiny at the trial or may fail. It would not be for this Court to pronounce upon the worth of evidence collected against her by scuttling proceedings at this stage.
13. Looking to the aforesaid facts and circumstances, this Court is of considered opinion that it is not a case where the impugned charge sheet can be quashed.
14. Accordingly, the prayer for quashing the impugned charge sheet is refused.
15. However, looking to the fact that the applicant is a woman and not nominated in the FIR, it is provided that if she appears and surrenders before the court below within 45 days from today and applies for bail, her prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
16. For a period of 45 days from today or till the applicant surrenders whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against her.
17. With the aforesaid directions, the application is finally disposed of.
Order Date :- 23.8.2018 Anoop