BUNDOO Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by four Muslim residents of village Pilkhua in the district of Meerut praying that certain criminal proceedings started against them should be quashed as being without any legal justification. The facts put of which this application arises may briefly be stated as follows : The principal applicant Bundoo sacrificed a cow oh the occasion of the Bakr-Id festival in the year 1941 and in that proceeding he was admittedly assisted by the other three applicants, Mohammad Asad Ullah, Sheikh Mohammad Yamin and Master Mohammad Sulaiman. It appears, however, that in the year 1940, Bundoo filed a representative suit in the civil Court for a declaration that the Muslim residents of Pilkhua were entitled to perform cow sacrifice on the occasion of the Bakr-Id festival. The cause of action for that suit apparently was that the local authorities used to prohibit cow sacrifice in village Pilkhua even on the Bakr-Id occasion presumably because they feared that such a sacrifice was likely to cause a breach of peace between the Hindu and Muslim residents of village. It was therefore in order to assert the right of the Muslims to perform cow sacrifice, on the occasion of the Bakr-Id festival that the representative suit referred to above was filed in the civil Court. It is admitted that the suit was decreed on 13 May 1940. Having thus obtained a declaration from the civil Court, it appears that the applicant Bundoo asserted the right given to him by the civil Court decree and sacrificed a cow on the occasion of the Bakr-Id festival in the year 1941. It is also admitted that no prohibition of any kind was issued by the local authorities that year. On behalf of Bundoo it is alleged that he performed the sacrifice quietly within his house so that no Hindu resident of the village could see it and there was consequently no fear of the feelings of the Hindu residents being injured by the act. The sacrifice was performed in the early hours of the morning. In order to be on the safe side Bundoo proceeded to the thana and made a report there telling the police that he had performed the sacrifice. He was immediately put under arrest under Section 107, Clause (3), Criminal P. C. It is not alleged that the Hindu residents were aware of the sacrifice performed by Bundoo at the time when the act was committed but it is said that the next day the Hindu residents declared a hartal in the village and the local authorities had to pacify them. In these circumstances the District Magistrate of Meerut passed the following order : It has been reported to me that during Id one Bundoo urf Buniad Ali of Pilkhua slaughtered a cow against the custom of Pilkhua. In this he was instigated by the following persons. Dr. Asad Ullah, Master Mohammad Suleman, Mohammad Yamin. The Magistrate on duty and the police officer had to pacify the Hindus who subsequently, I understand, had a short hartal. It is quite clear that the above mentioned action has stirred up communal feeling in the vicinity. The stirring up of such feelings promotes enmity between Hindus and Muslims, causes fear and alarm to the public and at a time like this can have a very direct bearing on the prosecution of the war, since such actions create panic. I, therefore, order the immediate arrest and trial of the persons named below under the sections of the law specified against each.

(2.) In accordance with this order passed by the District Magistrate the four applicants were prosecuted and put on their trial before a Magistrate of the first class who on 7 March 1942 framed the following charge against the applicant Bundoo: That you on or about the 31 day of December 1911 before sunrise killed a cow in your house in village Pilkhua knowing it was likely to promote feelings of hatred and enmity between Muslims and Hindus and cause fear and alarm to the public and thereby committed a prejudicial act as defined in Rule 34(6)(f) and (g) and punishable under Rule 38, Defence of India Rules....

(3.) The other three applicants were charged with having abetted that offence. Against this proceeding, the applicants went up in revision to the learned Sessions Judge of Meerut who summarily rejected their application. They have now come up in revision to this Court. Two points have been urged on behalf of the applicants, firstly, that the Defence of India Rules apply only to such acts as fall directly or indirectly within the purview of the preamble to the Defence of India Act, or in other words acts which have any consequential bearing upon the prosecution of the war, secondly, that even upon the facts as they stand the applicants cannot possibly be convicted of an offence under Rule 38, Defence of India Rules, which runs as follows: "No person shall without lawful authority or excuse(a)do any prejudicial act."