AZIZ AHMAD v. STATE OF UTTAR PRADESH — 1992 DIGILAW 1583 (ALL)

( 1 ) THESE two writ petitions arise out of interesting facts. Dr. Aziz Ahmad has filed writ petition No. 23588 of 1992 saying that since the First Information Report dated 11. 7. 1992 filed by Devendra Prasad Nayak giving rise to Case Crime No. 885 of 1992 under sections 295,429 and 153a I. P. C. , P. S. Cantt. Gorakhpur does not disclose any prima facie offence the said F. I. R. and the proceedings therein should be quashed. ( 2 ) DEVENDRA Prasad Nayak, the informant, however, has filed Writ Petition No. 30706 of 1992 saying that the aforesaid case crime No. 885 of 1992 should be investigated by the C. B. C. I. D. and that the post mortem report of the animal in question (elephant) should be got done and that the order of the City Magistrate dated 14. 8. 1992 authorising the delivery of trunk of the said animal should be quashed and such other orders as are found necessary should be passed in favour of the informant-petitioner. ( 3 ) THE short facts are that on 9. 7. 1992 in a particular locality, Moharram procession was proceeding. Several elephants were accompanying it. The last of the elephants lost balance and started damaging the properties belonging to various citizens. Consequently, the Police informed the Authorities as a result of which the Magistrate and the local Police reached the site and directed the Mahavat (Feel wan) to take the elephant somehow out of the procession towards a secluded place. The Mahavat somehow managed to do it, but the elephant in the process went on damaging the property including cars, scatters etc. It was with great difficulty that the children who rode the elephant could get down by jumping from over it. ( 4 ) ULTIMATELY, it was found that the elephant was not controllable and the Police informed the Authorities including the Magistrate that the type of ammunition required for liquidating the elephant was not available with them. Consequently some other person may be authorised to come with the said ammunition from the Arms Dealers and take necessary action to liquidate the elephant. Consequent upon this, the Magistrate passed an order under section 133 Cr. P. C. directing the petitioner Dr. Aziz Ahmad to arrange for arms and ammunitions at once and take steps to liquidate the elephant. Consequently some other person may be authorised to come with the said ammunition from the Arms Dealers and take necessary action to liquidate the elephant. Consequent upon this, the Magistrate passed an order under section 133 Cr. P. C. directing the petitioner Dr. Aziz Ahmad to arrange for arms and ammunitions at once and take steps to liquidate the elephant. It is said that in pursuance of the said order the petitioner Dr. Aziz Ahmad shot at the elephant as a result of which it became immobile and subsequently died: In the First Information Report lodged by Devendra Nayak on the next day i. e. 10. 7. 1992 he admits that he was not an eye-witness of the incident and further that the report about whatever had happened was conveyed to him by his Mahavat. He has stated in the said First Information Report that some unruly elements instigated the elephant by touching a burning cigarette towards its back portion with the result that it got infuriated and then all efforts to control the said elephant went in vain. After some time the elephant was escorted with difficulty to a secluded place where Dr. Aziz Ahmad accompanied by two persons fired at the elephant. The Police personnel as well as the District Officials also fired at the elephant as a result of which it fell down and was about to die. As stated above, this First Information Report has been registered as a crime under the sections mentioned above. ( 5 ) SRI N. I. Jafri, learned counsel for the petitioner, Dr. Aziz Ahmad and Sri Han Narain Singh, learned counsel for the petitioner Devendra Prasad Nayak and Sri P. K. Bisaria on behalf of the State and the District Officials have been heard at length and the entire record has been perused thoroughly. ( 6 ) BEFORE coming to the arguments raised by Sri S. I. Jafri, it will be better to deal with the writ petition of Devendra Prasad Nayak and deal with the arguments of Sri Ran Narain Singh because primarily this is the F. I. R. which is the bone of contention between the parties. ( 6 ) BEFORE coming to the arguments raised by Sri S. I. Jafri, it will be better to deal with the writ petition of Devendra Prasad Nayak and deal with the arguments of Sri Ran Narain Singh because primarily this is the F. I. R. which is the bone of contention between the parties. ( 7 ) IT was vehemently argued by Sri Singh that in his F. I. R. the petitioner Devendra Prasad, Nayak has given the necessary facts which should be leading to the conclusion that the offence stands disclosed therefrom and since the offence stands disclosed, this Court should not interfere under Article 226 of the Constitution for quashing the F. I. R. as also the investigation therein. In order to lend support to his arguments he has placed reliance on a decision of the Supreme Court reported in State of Bihar v. P. P. Sharma and another. Let this be said at the outset that if the offence has been disclosed from the allegations made in the First Information Report powers under Article 226 of the Constitution of India should not be exercised for quashing of the said F. I. R. or the investigation therein but the simple question in the instant case is whether any offence stands disclosed? ( 8 ) AS noted above, the petitioner Devendra Prasad Nayak was not an eye-witness and even if whatever he has included in the, F. I. R. of 107, 1992 no offence whatsoever of any nature is disclosed. For this purpose a closer scrutiny of the F. I. R.- allegations have to be made. Translated into English the relevant portion of the F. I. R. would read like this: On 9. 7. 1992 the elephant was going towards the rear of the Moharram procession when someone put a burning cigarette on the rectum of the elephant as a result of which it got infuriated a little. At this the processionists and the Police people raised hue and cry as a result of which again the elephant got perturbed (Baukhla Gai ). The informing Mahavat said that you people may not raise hue and cry. I will control the elephant and try to take it away from the procession out of the city. At this the processionists and the Police people raised hue and cry as a result of which again the elephant got perturbed (Baukhla Gai ). The informing Mahavat said that you people may not raise hue and cry. I will control the elephant and try to take it away from the procession out of the city. The people went on creating noise and some also pelted stone chips as a result of which the Mahavat as also the elephant got some injuries. The elephant then got further infuriated and started running towards the Collectorate Crossing. The Mahavat fell down from the elephant and received serious injuries. He had been got admitted in the hospital. In the meanwhile many of the District Officials and Police Officials along with the Fire-Brigade vehicle reached the site. The other Mahavat Munishi attempted to take the elephant out of the city. The crowed increased. The elephant was somehow escorted upto Tamkohi Kothi. The elephant and the Mahavat were recognised by Singh and Gulab. Mahavat Munshi was directed to take the elephant towards Ram Gath. At this the Mahavat tried to take the elephant towards that side. A large crowed followed. The District Officials were also present although. The Mahavat said that since the elephant was proceeding peacefully you may retreat as he would manage the elephant. But as soon as the elephant reached near Painulgarh Dr. Aziz Ahmad of Jafra Bazar Onchwa along with two other persons came along with gun and rifle and-in the presence of the officials made filings injuring the elephant. After this the Police also fired as a result of which the elephant fell down and reached its dying moments. It was lying there. The informants elephant had been killed without any reason causing loss of Rs. 2,50,000/ -. This incident had been seen by Raghunath Singh, Shabsi and Anand Singh etc. Munshi has told me all this at my residence. Then I went to Gorakhpur to contact the earlier Mahavat and now I am getting this report lodged which may be investigated independently. Dr. Aziz Ahmad has killed the elephant accentuated by religious ill-feelings. My religious feelings have been affected and I have also suffered pecuniary loss. ( 9 ) THE General Diary report which was registered soon after the incident on 9. 7. 1992 has been filed as Annexure S. A. 1 to the supplementary affidavit. Dr. Aziz Ahmad has killed the elephant accentuated by religious ill-feelings. My religious feelings have been affected and I have also suffered pecuniary loss. ( 9 ) THE General Diary report which was registered soon after the incident on 9. 7. 1992 has been filed as Annexure S. A. 1 to the supplementary affidavit. This has narrated in detail as to how the elephant, while accompanying the Moharrum procession got enraged, went berserk and started causing extensive damage to the property necessitating an order from the Magistrate under section 133 Cr. P. C. which was duly passed authorising Dr. Aziz Ahmad to come and liquidate the said animal (elephant) in order to protect the property and lives of the people in the surroundings. ( 10 ) THIS General Diary entry is the immediate detail of the entire incident. At no place of the First Information Report lodged by Devendra Prasad Nayak, any of the allegations in the said general diary report is denied or stated to be wrong. He has only painted the incident in his own language. To say the least, there is no dispute as to the incident and the manner of its occurring except that the right step taken by the District Officials perhaps prevented the lives of so many people who may have got injured if liquidation of the animal (elephant) going berserk was not directed. This Court is further of the view that if immediate action was not taken perhaps the entire incident may have got some communal texture and in the prevalent surrounding then, some adverse situation would have arisen if the elephant would have really gone berserk and killed many people. There was thus no other alternative except to liquidate the elephant otherwise lives and property of the citizens would have been in danger. At this stage it may be stated that section 133 Cr. P. C. lays down that whenever an executive Magistrate on receiving report of Police Officer or other information, considers that any dangerous animal should be destroyed, he may make an order to that effect. At this stage it may be stated that section 133 Cr. P. C. lays down that whenever an executive Magistrate on receiving report of Police Officer or other information, considers that any dangerous animal should be destroyed, he may make an order to that effect. As noted above, the exigency of the situation and the manner in which the incident suddenly occurred left no other alternative but to direct the liquidation of the elephant and, therefore, if such an action is permitted to be proceeded against through the First Information Report lodged by Devendra Prasad Nayak it would not only be unjust and improper but would also amount to abuse of the process of law. ( 11 ) SINCE the entire allegations in the First Information Report has been noted above, it is not understandable as to which part of it would go to make out the ingredients of the sections under which this F. I. R. has been lodged. Since the Police report about going of the elephant berserk in the procession suddenly is not denied, the arrival of the District Officials and Police at the site and the panic in the procession due to elephants madness is not denied, and then the shooting down of the elephant by Dr. Aziz Ahmad in the presence of the Police and District Officials is not denied in the F. I. R. of Devendra Prasad Nayak, it must be held that none of the ingredients of sections 429, 295 and 15-A, I. P. C. stand disclosed from the said First Information Report. There was thus no reason at all for any religious feelings of anyone being attempted to be hurt intentionally by anyone. The inference of the informant are wholly belied by the admitted facts and the informant has to thank himself for any illogical and opinionated conclusions therefrom. Therefore, it is a fit case where the power under Article 226 of the Constitution must be exercised to safeguard the rights of the citizens. ( 12 ) HOWEVER, this is not the end of the matter. Sri Han Narain Singh has rightly argued that the carcass of the elephant does belong to him an he should be handed over the teeth, trunk and the bone parts. ( 12 ) HOWEVER, this is not the end of the matter. Sri Han Narain Singh has rightly argued that the carcass of the elephant does belong to him an he should be handed over the teeth, trunk and the bone parts. Sri P. K. Bisaria, learned Standing Counsel, drew the attention of the Court to the last part of averments made in paragraph 10 of the counter affidavit filed by Sri Umesh Chandra, the Station House Officer, P. S. Cantt. In the said counter affidavit he has said that the external portion of the teeth of the dead body of the elephant were taken out which have been received by Sri Devendra Prasad Nayak on 12. 8. 1992. Sri Singh, however, contended that still the internal portion of the teeth and bones may be immense value in the market and he being the owner, should get the remainder of the teeth and the bones. The District Administration will take suitable action when the petitioner approaches them along with a certified copy of this order for getting those things delivered to the petitioner Devendra Prasad Nayak. ( 13 ) BECAUSE of this discussion of the entire matter while dealing with the writ petition of Devendra Prasad Nayak, the arguments raised by Sri NJ. Jafri in the writ petitioner of Dr. Aziz Ahmad need not be gone into except that the prayer contained in the said writ petition has to be accepted. ( 14 ) THE result, therefore, is that writ petition No. 23588 of 1992 filed by Dr. Aziz Ahmad is allowed. The First Information Report dated 10. 7. 1992 under sections 295, 429 and 153-A I. P. C. , P. S. Cantt. Gorakhpur and all further proceedings relating thereto are quashed. ( 15 ) THE Writ Petition No. 30706 of 1992 filed by Devendra Prasad Nayak stands disposed of finally in terms aforesaid. Interim order dated 15. 7. 1992 is vacated. A copy of this order shall be furnished to the learned counsel for the parties on payment of usual charges within 7 days. Writ Petition allowed. .