# Kailash Yadav and others Revisionists v. State of U.P. & another

- **Citation:** (2009) 1 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-17
- **Case number:** Criminal Revision No. 131 of 2005
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-yadav-and-others-revisionists-v-state-of-u-p-another-41309
- **Pages:** 6

## Headnote

U.P. Prevention of Cow Slaughter Act
1995-Section 3,5, 5A-ceasure of bullock
by police during transformation-release
application also rejected by Magistrate
on investigation they were carried out
for slaughter purpose in Bihar Statefrom the version of F.I.R. no offence
made out under the Act-ownership of
these Bullock can be decided by the
Court below-court expressed it great
concern considering the lack of judicial
knowledge of these judicial officer or
under deep devotion towards cow-heldimpugned
order
rejecting
release
application
wholly
illegal-direction
issued for fresh consideration of release
application.

Held: Para 14
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Certain guidelines were issued by the
Hon'ble Apex Court in the case of
Sunderbhai Ambalal Desai Vs. State of
Gujarat AIR 2003 Supreme Court 638
regarding disposal of the property. While
passing the impugned order, the learned
Court below did not care to see those
guidelines. When no offence under the
Cow Slaughter Act is made out in the
present
case,
then
there
was
no
justification for the court below to
decline to release the seized bullocks
merely on the assumption that the said
cattle were being carried to Bihar for
slaughtering.
Case law discussed:
1991 (supal) ACC 110, AIR 2003 Supreme
Court 638

## Text

1 All] Maharishi Shiksha Sansthan and another V. State of U.P. and another
31
establishments' as used in the said section
would necessary take it's colour from the
preceding words industrial, commercial,
agricultural or otherwise, being read as
ejusdem
generic.
The
educational
institutions do not perform any industrial
or commercial activity and therefore it
cannot be included within the purview of
ESI Act, 1948.

4. The Hon'ble Single Judge by
means of the impugned judgment and
order dated 22nd October, 2008 held that
the contentions so raised on behalf of the
petitioner is misconceived, the word
'otherwise' as used in the said is wide
enough to cover educational institutions.
Reliance has been placed upon the
judgment of the Supreme Court in the
case of Hindu Jea Band, M/s Jaipur vs.
Regional Director, Employees' State
Insurance Corporation, Jaipur reported
in AIR 1987 SC 1166.

5. We have heard learned counsel
for the parties and have gone through the
record.

6. We are of the considered opinion
that the Hon'ble Single Judge has rightly
held that educational institution would be
covered
under
the
definition
of
establishment specifically in view of the
use of the word 'otherwise'. It has rightly
been held that the word 'otherwise' is of
wide
amplitude
covering
all
other
establishments
including
educational
institutions.

7. Reference may also be had to the
following judgments of the Apex Court
wherein a University as well as a School
has been held to be an industry (a) A.I.R.
1963; University of Delhi vs. Ram Nath
and (b) AIR 1988 SC 1700; Miss. A.
Sundarambal vs. Government of Goa,
Daman & Diu and others, on the same
logic education institutions would also
answer the description of establishment as
per Section 1 (5) of the ESI Act.

8. In view of the aforesaid, the
special
appeal
lacks
merit
and
is
dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Revision No. 131 of 2005

Kailash Yadav and others ...Revisionists
Versus
State of U.P. & another ...Opposite parties

Counsel for the Revisionists:
Sri Praveen Kumar Singh

Counsel for the Opposite Parties:
A.G.A.

U.P. Prevention of Cow Slaughter Act
1995-Section 3,5, 5A-ceasure of bullock
by police during transformation-release
application also rejected by Magistrate
on investigation they were carried out
for slaughter purpose in Bihar Statefrom the version of F.I.R. no offence
made out under the Act-ownership of
these Bullock can be decided by the
Court below-court expressed it great
concern considering the lack of judicial
knowledge of these judicial officer or
under deep devotion towards cow-heldimpugned
order
rejecting
release
application
wholly
illegal-direction
issued for fresh consideration of release
application.

Held: Para 14
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Certain guidelines were issued by the
Hon'ble Apex Court in the case of
Sunderbhai Ambalal Desai Vs. State of
Gujarat AIR 2003 Supreme Court 638
regarding disposal of the property. While
passing the impugned order, the learned
Court below did not care to see those
guidelines. When no offence under the
Cow Slaughter Act is made out in the
present
case,
then
there
was
no
justification for the court below to
decline to release the seized bullocks
merely on the assumption that the said
cattle were being carried to Bihar for
slaughtering.
Case law discussed:
1991 (supal) ACC 110, AIR 2003 Supreme
Court 638

(Delivered by Hon'ble Vijay Kumar Verma, J.)

"Whether carrying the cow, bull or
bullock from one place to another place
within the State of Uttar Pradesh for the
purpose of slaughtering constitutes any
offence
under
the
Uttar
Pradesh
Prevention of Cow Slaughter Act 1955 (in
short, 'the Cow Slaughter Act')?" is the
main question that falls for consideration
in this revision, which has been preferred
against the order dated 04.01.2005 passed
by
the
Chief
Judicial
Magistrate
Ghazipur.

2. By the impugned order, the Court
below has declined to release the bullocks
seized in case crime no. 1062 of 2004
under section 3, 5-A, 8 of Cow
Slaughtering Act and Section 11 of the
Prevention of Cruelty to Animals Act (in
short, 'the Animals' Cruelty Act'), P.S.
Nonahra, District Ghazipur.

3. The facts emerging from the
record leading to the filing of this revision
are that an FIR was lodged by S.I.
S.Tiwari on 20.12.2004 at 10.00 a.m. at
P.S. Nanahra (Ghazipur), where a case
under section 3, 5-A and 8 of Cow
Slaughter Act and Section 11 of Animals'
Cruelty Act was registered at crime no.
1062 of 2004 against (1) Radhey Shyam
Yadav, (2) Subhash Navik, (3) Baladin
Pasi, (4) Ramesh Yadav; and (5) Chottey
Lal Yadav. Shorn of unnecessary details,
the allegations made in the FIR, in brief,
are that on getting information from an
informer, S.I. S. Tiwari with the help of
other police personnels arrested the
accused named above on 20.12.2004 at
6.15 a.m. near village Shankerpur within
the limits of P.S. Nanahra, District
Ghazipur. The accused persons were
carrying fifteen bullocks, which were
seized by the police. It is alleged that the
bullocks were being carried by the
accused to Bihar for the purpose of
slaughtering. The Revisionists moved an
application on 24.12.2004 in the Court of
Chief Judicial Magistrate, Ghazipur for
release of the bullocks with the averments
that they are the owners of seized
bullocks, which they had purchased for
agriculture purpose from District Jaunpur
and they had engaged Radhey Shyam
Yadav, Subhash Navik, Baladin Pasi,
Ramesh Yadav and Chottey Lal on labour
for carrying the bullocks, which were
seized by the police when its demand of
illegal money was not fulfilled and the
accused persons were also arrested. The
learned
Chief
Judicial
Magistrate
Ghazipur vide impugned order has
declined to release the bullocks in favour
of the Revisionists assuming that the
bullocks were being carried to Bihar for
the purpose of slaughtering. Hence, this
revision.

4. When the case was taken up in the
revised
list,
the
counsel
for
the
Revisionists did not come. Hence, I have
heard arguments of learned AGA for the
1 All] Kailash Yadav and others V. State of U.P. and another
33
State. The revision is being decided on
merit after going through the record.

5. It was contended by the learned
AGA that the seized bullocks were being
carried to Bihar for the purpose of
slaughtering by the accused persons
named in the FIR and hence the learned
Court below did not commit any illegality
in declining to release the said cattle in
favour of the Revisionists.

6. Having given my best of
consideration to the submission made by
the learned AGA, I find no force in the
said contention. The Uttar Pradesh
Prevention of Cow Slaughter Act was
enacted to prohibit and prevent the
slaughter of cow and its progeny in Uttar
Pradesh. Slaughter has been defined in
section 2 (d) which reads thus:-

"Slaughter' means killing by any
method whatsoever and includes maiming
and inflicting of physical injury which in
the ordinary course will cause death."

7. Section 3 of Cow slaughter Act
lays down that "no person shall slaughter
or cause to be slaughtered, or offer or
cause to be offered for slaughter, a cow,
bull or bullock in any place in Uttar
Pradesh, anything contained in any other
law for the time being in force or any
usage
or
custom,
to
the
contrary
notwithstanding."

8. Section 5-A of Cow Slaughter Act
although is not relevant for the present
case, but it will be useful to have a look
on this section also, which read thus:-

5-A Regulation on transport of
Cow etc-(1)
"No person shall transport or offer
for transport or cause to be transported
any cow, or bull or bullock, the slaughter
whereof in any place in Uttar Pradesh is
punishable under this Act, from any
place within the State to any place
outside the State, except under a permit
issued by an officer authorised by the
State Government in this behalf by
notified order and except in accordance
with the terms and conditions of such
permit."

9. The contravention of Section 3, 5
& 5-A of Cow Slaughter Act is
punishable under section 8 which reads
thus:-

"(1) Whoever contravenes or abets the
contravention of the provisions of
Section 3, Section 5 or Section 5-A shall
be punished with imprisonment for a
term which may extend to seven years
and with fine which may extend to ten
thousand rupees.
(2) Whoever attempts to commit an
offence punishable under sub section (1)
shall be punished with imprisonment for
a term which may extend to one-half of
the
longest
term
of
imprisonment
provided for that offence and with such
fine as is provided for the offence."

10. As mentioned herein-above, the
allegations made in the First Information
Report lodged at P.S. Nanahra on
20.12.2004, in brief, are that the accused
Radhey Shyam Yadav, Subhash Navik,
Baladin Pasi, Ramesh Yadav and Chottey
Lal Yadav were arrested by the police
carrying fifteen bullocks for the purpose
of slaughtering. Having regard to the term
'Slaughter' as defined in section 2(d) of
Cow Slaughter Act and provisions of
Section 3, even if the entire version of
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
FIR is accepted to be true, no offence
under Cow Slaughter Act would be made
out in this case. Although merely due to
carrying the bullocks by the accused
persons named in the FIR, it can not be
presumed that they were carrying the said
cattle for slaughtering, but even if it is
assumed for the sake of argument that the
accused
persons
were
carrying
the
bullocks for the purpose of slaughtering,
then also no offence under Cow Slaughter
Act would be made out in present case,
because all the bullocks were healthy and
neither they were being offered to any
other person for slaughtering nor any
attempt for slaughtering was being made
by the accused persons carrying them. No
bullock was found maimed and no injury
sufficient in the ordinary course of nature
to cause death was caused to any bullock.
If the entire version of the FIR is taken to
be true on its face value, the case would
not travel beyond the stage of preparation,
which is not punishable under Cow
Slaughter Act or any other law for the
time being in force. There was no
contravention of section 3 or any other
section of Cow Slaughter Act and hence,
no offence punishable under section 8 of
the said Act would be made out in this
case. Attempt to commit the offences
described in section 3, section 5 and
section 5-A of Cow Slaughter Act is
punishable under section 8(2) of the Act.
If neither any attempt of slaughtering the
cow, bull or bullock is made nor these
cattle are offered to any person for
slaughtering and if all the cattle during
transportation or carrying them on foot
remained healthy and no cattle is killed or
maimed and no injury sufficient in the
ordinary course to cause death is caused
to them, then no offence under the Cow
Slaughter Act would be made out, even if
these cattle are carried with the intention
of Slaughtering, because intention of the
offence of slaughtering is not punishable
under any law for the time being in force.

11. Mere transportation of cow, bull
or bullock from one place to another place
within the State of Uttar Pradesh or
carrying them on foot can not amount to
'attempt' of slaughtering and this act at
the most can be said to the 'preparation'
of slaughtering, which is not punishable
under Cow Slaughter Act or any other law
for the time being in force. Reference in
this regard may be made to the case of
Babu vs. State of U.P. 1991 (supal)
ACC 110. In that case bullocks were
being transported in trucks which were
seized at Bihar border. FIR was lodged
under section 5 & 8 of Cow Slaughter Act
and Section 11 of Animals' Cruelty Act. It
is held by the Allahabad High Court that
Uttar
Pradesh
Prevention
of
Cow
Slaughter Act prohibits slaughter of cow
or bullocks and possession of beef, but
there is nothing in the act prohibiting
preparation for cow slaughtering. It is also
held that there can not be reasonable
presumption or inference that the bullocks
were being transported for slaughtering.
In present case also, barring the so called
confession of the accused persons before
the police, there is no other material on
record to show that the seized bullocks
were being carried to Bihar for the
purpose of slaughtering as alleged in the
FIR. An affidavit has been filed in this
Revision by the Revisionist Kailash
Yadav,
who
has
stated
that
the
Revisionists had purchased the bullocks
from different agriculturists by means of
sale letters after making payment of
reasonable and considerable amount.
Annexure-II to the said affidavit is the
copy of release application, which was
moved by the Revisionists on 24.12.2004
1 All] Kailash Yadav and others V. State of U.P. and another
35
in the Court of Chief Judicial Magistrate,
Ghazipur. In that application also, it was
averred that the applicants had purchased
the bullocks from District Jaunpur for
agriculture purpose and they had engaged
Radhey Shyam Yadav, Subhash Navik,
Baladin Pasi, Ramesh Yadav and Chottey
Lal on labour for carrying the said
bullocks to District Ghazipur. Therefore,
keeping all these facts in view, it can not
be presumed in the present case that the
accused persons were carrying the seized
bullocks for slaughtering.

12. The offence of 'abatement' of
slaughtering would also not be made out
in present case, as the accused persons at
the time of their arrest were neither
offering the bullocks to any other person
for slaughtering, nor they were providing
any other kind of aid to any person for the
offence of slaughtering. Mere transporting
the cow, bull or bullock or carrying them
on foot from one place to another place
within the State of Uttar Pradesh can not
be said to the 'abatement' of any offence
under Cow Slaughter Act, unless these
cattle are either offered to any other
person for slaughtering or any other kind
of aid is provided to any person for the
offence of slaughtering.

13. It is often seen now-a-days that
whenever the cow, bull or bullocks are
transported by any goods carriage or
carried on foot, they are generally seized
either by the police or some anti-social
elements. The Uttar Pradesh Police also is
helpless before such anti-social elements,
who are violating the Fundamental right
of citizens to carry the trade of purchasing
and selling the cattle. Cow Slaughter Act
prohibits slaughter of cow and its progeny
and possession of beef, but neither this
Act, nor any other law for the time being
in force prohibits the trade of cow or its
progeny within the State of Uttar Pradesh.
Unfortunately the police of Uttar Pradesh
is also helping such anti-social elements
by seizing the cattle and vehicles carrying
them, even no offence under Cow
Slaughter Act or Animals' Cruelty Act is
made out. Even more unfortunate state of
affairs in Uttar Pradesh is that the
Magistrates and Judges in subordinate
courts are also not looking to this matter
and either due to excessive devotion to
cow or lack of legal knowledge, they are
not only declining to release the seized
cattle or vehicles carrying them, but
without applying their mind, they are
rejecting the bail applications also in such
cases, although no offence under Cow
Slaughter Act is made out and all the
offences under Animals' Cruelty Act are
bailable. While making Inspection of
Rampur judgship as Administrative
Judge, I found that a large number of bail
applications in such cases were rejected
not
only
by
the
magistrates,
but
unfortunately the then Sessions Judge and
some Additional Sessions Judges also did
not care to see whether any offence under
Cow Slaughter Act is made out or not and
without applying the mind, the bail
applications even in those cases were
rejected where two or three bullocks were
being carried on foot by the accused. This
unfortunate practice of rejecting the bail
applications without applying mind by
merely seeing section 3, 5, 5-A and 8 of
Cow Slaughter Act in FIR is prevalent
almost in the whole Uttar Pradesh, which
is unnecessarily increasing the work-load
of High Court. By declining bail to the
accused persons under Cow Slaughter
Act, although no offence under this act is
made out and the offences punishable
under Animals' Cruelty Act are bailable,
the personal liberty of the accused
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
protected under Article 21 of the
Constitution of India is also unnecessarily
curtailed till their release on granting bail
by the High Court.

14. Certain guidelines were issued
by the Hon'ble Apex Court in the case of
Sunderbhai Ambalal Desai Vs. State of
Gujarat AIR 2003 Supreme Court 638
regarding disposal of the property. While
passing the impugned order, the learned
Court below did not care to see those
guidelines. When no offence under the
Cow Slaughter Act is made out in the
present
case,
then
there
was
no
justification for the court below to decline
to release the seized bullocks merely on
the assumption that the said cattle were
being carried to Bihar for slaughtering.

15. The bullocks in question were
seized from the possession of the accused
persons named in the FIR, which was
lodged at P.S. Nanahra, whereas the
application for their release was moved by
the Revisionists claiming themselves to
be the owners of the said bullocks. The
Court below while passing the impugned
order has not decided the matter of
ownership of bullocks. The accused
persons named in the FIR do not appear to
have been heard at the time of passing the
impugned order. Therefore, the bullocks
can not be released by this Court in favour
of the Revisionists, as the matter of their
ownership has to be decided by the Court
below after giving opportunity to the
accused persons named in the FIR. The
Court below vide its impugned order
appears to have declined to release the
bullocks assuming that the said bullocks
were
being
carried
to
Bihar
for
slaughtering. As I have stated above, mere
carrying or transporting the cow, bull or
bullock from one place to another place
within the State of Uttar Pradesh does not
constitute
any
offence
under
Cow
Slaughter
Act
unless
there
is
contravention of section 3 and 5-A of the
Act. As stated herein-above, there was no
contravention of section 3 or any other
section of Cow Slaughter Act in the
present case. Therefore, the impugned
order being wholly illegal can not be
sustained.

16. Consequently, the Revision is
allowed. The impugned order is set-aside
and the court below is directed to dispose
of
the
release
application
of
the
Revisionists for release of the bullocks
seized by the police of P.S. Nanahra,
District Ghazipur in crime no. 1062 of
2004 keeping in view the observations
made in this judgement. The claim of
ownership of seized bullocks will be
decided by the Court below after
informing the accused Radhey Shyam
Yadav, Subhash Navik, Baladin Pasi,
Ramesh Yadav and Chottey Lal Yadav by
sending notices to them by registered
post.

The office is directed to send a copy
of this Judgment within a week to the
lower court concerned for necessary
action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1252 of 2008

Bhagwati Prasad & another...Appellants
Versus
State of U.P. and others ...Respondents