Allahabad High Court
Shiv Kumar And Another vs State Of U.P. on 11 April, 2023
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 29
Case :- CRIMINAL REVISION No. - 528 of 2011
Revisionist :- Shiv Kumar And Another
Opposite Party :- State of U.P.
Counsel for Revisionist :- Sumit K. Srivastava
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Renu Agarwal,J.
Heard learned counsel for the revisionist and learned A.G.A for the State.
The present revision is moved under Sections 397/401 Cr.P.C against the judgment and order dated 21.10.2011 passed by the Judicial Magistrate, Pratapgarh in Criminal Case No. 52 of 2011 Shiv Kumar and another Vs. State of U.P. arising out of Case Crime No. 560 of 2011 under Section 279 IPC and Sections 3/5-A/8 of the U.P. Prevention of Cow Slaughter Act and Section 11 of Prevention of Cruelty to Animal Act whereby the application for release of oxen filed by the revisionist was rejected.
It is submitted by the learned counsel for the revisionist that in the months of August and September, 2011 revisionist purchased 65 oxen from the animal market district Kanpur for the purpose of selling them in the animal market in the district Azamgarh. Photo stat copies of the receipt of purchase of 65 oxen are collectively annexed as Annexure no.2. After purchasing the same, the revisionist was transporting these oxen by truck No. U.P. 78 CN 0997, U.P. 78 BT 6087 and U.P. 78 BT 7907 respectively on 04.09.2011. On way the police at Kotwali Nagar District Pratapgarh demanded illegal gratification from the truck drivers and some altercation took place between the truck drivers and police. The police seized the truck along with oxen purchased by the revisionist on false and fabricated ground and lodged case crime No. 560 of 2011 alleging therein that the said oxen were being transported to Kolkatta for slaughtering. Nothing incriminating has been recovered from the possession of the accused and they are intercepted only on the basis of suspicion. Learned Magistrate without applying his judicial mind rejected the application of the revisionist in arbitrary manner without considering the receipt regarding purchase of oxen and hire of trucks for transportation of oxen. The accused persons have been granted bail by learned trial court.
On the other hand learned A.G.A for the State submitted that the impugned order passed by the learned trial court is on the basis of evidence on record and address of purchaser is mentioned as Fatehabad and it is mentioned on the carriage of truck that the oxen are being transported for agricultural work. The thumb impression affixed on the receipt were not verified and therefore, such oxen were seized and taken into custody by the police. Therefore, the order of learned trial court is liable to be upheld and the revision is liable to be rejected.
From the perusal of record it transpires that release application was moved before the Judicial Magistrate, Pratapgrah which was dismissed on 21.102.2011. On the basis of First Information Report it appears that oxen were being transported for slaughtering. Learned counsel for the revisionist draw my attention towards photostat copies of the receipt adduced as annexure No. 2. A perusal of the receipt reveals that oxen were purchased from animal market, police station Billore, district Kanpur Nagar from 10.08.2011 to 4.09.2011. Learned counsel for the revisionist also draw my attention to annexure No.3 which are three receipt of Rs. 13, 000/- each for hiring of truck bearing U.P. 78 CN 0997, U.P. 78 BT 6087 and U.P. 78 BT 7907 dated 04.09.2011. It is also mentioned in the receipt that the truck is hired for transportation of oxen for agricultural purpose.
I have perused the recovery memo. According to the recovery memo chowki in charge received an information on phone that the trucks transporting illegal oxen are being carried for the purposes of slaughtering in Koltatta. The police personnel formed a team and raided the truck and all the three drivers were arrested and oxen were found being transported. It is mentioned in the recovery memo that the oxen were loaded cruelly and they were fasten with rope tightly. No other cruelty is shown from the recovery memo. No knife, axe or any incriminating weapons is found in the truck or from the possession of driver.
Learned trial court held that it appears that oxen were being taken for the purpose of slaughtering. Learned trial court did not give any finding regarding the receipt of purchase produced by the applicant in the trial court to show that these oxen were purchased by him from the animal market Kanpur with the purpose to sell them in the animal market at Azamgarh. There is no material on record for assuming that the animals were being transported for slaughtering as no incriminating weapons is found from the truck or from the possession of drivers. There is nothing on record which may lead to the conclusion that such oxen were being transported for the purposes of slaughtering. The finding of learned trial court is based on assumption and is against the facts on record.
In view of the above discussion, the impugned order dated 21.10.2011 is not sustainable and is set aside.
The revision is allowed and consequence to follow.
(Renu Agarwal,J.)
Order Date :- 11.4.2023
Karan/Nadeem
