Meredith, J.:— The petitioners, three Muhammadans, have been convicted under sections 298 and 290 of the Indian Penal Code. Under the former section they have been sentenced each to undergo nine months' rigorous imprisonment. No separate sentence has been imposed under section 290. An appeal against their convictions and sentences has been dismissed by the learned Sessions Judge of Bhagalpur.

The charge under section 290 ran as follows:

“That you on or about the 11th day of January, 1941, at Nayachak, police-station Mufassil Kotwali, district Bhagalpur, committed a public nuisance, viz., slaughtering a cow and exposing its carcass in a locality where such is not permitted, to the annoyance of the Hindu public and danger to the locality and the passers-by.”

The charge under section 298 was:

“That you on or about the same day and at the same place uttered the words, ‘See, what have you done? You tried to prevent us from slaughtering the cow, but we have done it now’ in the hearing of the complainant Baiju Gope and prosecution witnesses Babulal, Chhedi Tanti and Jageshwar Tanti and made gestures to wit—skinning and cutting the limbs of the carcass to pieces and placing it in the sight of the said persons with the deliberate intention of wounding the religious feelings of the Hindus in general and the aforesaid persons in particular.”

The first day of the Bakrid in 1941 fell on the 9th of January. The previous day, the village chaukidar had lodged information at the police-station to say that the Muhammadans of Nayachak contemplated cow sacrifice during the Bakrid, and the atmosphere was tense. As a result the police and the Sub-divisional Officer visited the locality, and a compromise was arrived at whereby there was to be no qurbani at Nayachak.

The first two days of Bakrid passed off quietly, but; on the morning of the third day the sacrifice, which has given rise to the present proceedings, took place. At midday one Baiju Gope, appeared at the police-station and lodged information, saying that morning when he, Bishun Gope, Bengali Gope, Jageshwar Tanti, Chhedi Tanti and Babulal Tanti of the basti were going along a foot-track in front of the house of Samid Mian they saw the three petitioners, Amjad, Leyakat and Samid, sacrificing a white cow; They saw that with their own eyes, as Samid was performing qurbani in front of his house. By doing so, their Hindu religion was disgraced, as a result of which there was much feeling among the Hindus.

On the 21st of January the police submitted a charge sheet against the petitioners under section 295 of the Indian Penal Code. The Sub-divisional Officer pointed out that cognizance could not be taken of an offence under that section, without the sanction of the local Government, and he directed the police to obtain the necessary sanction.

On the 25th of January, Baiju Gope filed a petition of complaint before the Magistrate regarding the same occurrence. This contained the addition that when the Muhammadans saw the Hindus, they began to make signs because of which the Hindus felt annoyed.

Sanction of the local Government was not obtained. On the contrary, on the 15th of March, the Crown filed an application to withdraw the case. This was allowed, and the Magistrate passed an order discharging the accused under section 494 of the Code of Criminal Procedure. But, about six weeks later, on the 23rd of April, Baiju Gope filed a petition, asking that his complaint case might proceed under sections 290 and 298 of the Indian Penal Code which did not require Government sanction. The case then proceeded as a complaint case, and resulted in conviction as I have stated.

It is contended by Mr. Yasin Yunus for the petitioners that neither the conviction under section 298 nor under section 290 should be allowed to stand. With regard to the conviction under section 298, he points out that in the original information of Baiju Gope there was not a word to suggest that any insulting words as specified in the charge were uttered, or even that any insulting gestures were made. Even in Baiju Gope's subsequent complaint, though there was a reference to making signs which annoyed the Hindus, there was no suggestion that any words were used, and there was nothing to indicate what signs were made. In the circumstances, the Courts below should not have found that the words specified in the charge

“See, what have you done? You tried to prevent us from, slaughtering the cow but we have dope it now”

were ever used. Moreover, it appeared from the evidence at the trial that there were no insulting signs or gestures other than the actual performance of the sacrifice and cutting up of the meat. Apart from that, he points out that a deliberate intention of wounding the religious feelings of some person is a necessary constituent of the offence under section 298. There cannot be a conviction under that section for uttering insulting words, or making insulting gestures, without a definite finding that such was done with the deliberate intention of wounding religious feelings. He points out that even if the finding of the Courts below could be supported, there was no clear finding and nothing in the circumstances of the case to support a finding that the acts were done with the deliberate intention of wounding the religious feelings of the Hindus. On the contrary, the circumstances in which the sacrifice was made would seem to indicate that the intention of the Muhammadans was merely to commit the sacrifice as quietly as they could, and it was only by chance that some Hindus passing by happened to see what was occurring.

In my opinion, the arguments of Mr. Yasin Yunus are correct. I do not think the Courts below were justified in holding that insulting words were uttered, or insulting gestures were made, upon the evidence in the case; and I think further that there were no materials at all before the Courts upon which they could base a finding that anything was done with the deliberate intention of wounding the feelings of the Hindus. In the circumstances, the conviction under section 298 was not correct, and cannot be supported.

Turning now to the conviction under section 290, for committing a public nuisance, it is to be observed that no question of intention here comes into the matter. It has simply to be decided whether the acts of the accused come within the definition of “public nuisance” in section 268 of the Indian Penal Code. That section is as follows:

“A person is guilty of a public nuisance who does any act, or is guilty of an illegal omission, which causes any common injury, danger, or annoyance to the public, or to the people in general, who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.”

The application of this definition to cases of slaughter of kine by Muhammadans has been considered as far back as 1887 by Brodhurst, J. in Queen-Empress v. Zakiuddin and, though that is a decision of a Judge sitting singly, the observations made are, if I may say so with respect, so pertinent, and deal with the matter so clearly and sensibly that I should like to quote them. The learned Judge said: “I am by no means prepared to hold that a slaughterer of cattle could under no circumstances be convicted of a public nuisance as defined in section 268 of the Indian Penal Code; for, if a person wilfully slaughtered cattle in a public street, so that the groans and blood of the poor beasts were heard and seen by the passers by, he would commit acts that would necessarily cause nuisance to every one of them, Hindu, European, Muhammadan or other, who was not utterly devoid not merely of refinement, but also of all proper feeling: and he undoubtedly would, in my opinion, be punishable under section 290 of the Indian Penal Code.”

In the case before that learned Judge certain Muhammadans for religious purposes had killed and cut up two cows before sunrise in a private compound partly visible from the public road, and the killing of one of the cows only was witnessed by one Hindu who happened to pass by. His Lordship held that the circumstances proved did not amount to the commission of a public nuisance, though, he said, a person wilfully slaughtering cattle in a public street, so that the slaughter could be heard and seen by the passers-by, would commit an offence punishable under section 290.

The principles which have to be applied in determining a question of this kind are, to my mind, here very clearly and correctly set out. It is Obvious that in each case it will be a question of fact whether the killing was done in such circumstances as to constitute a public nuisance, and in determining that question of fact, in order to obtain a clear and unbiased view, it is advantageous to put out of one's mind all questions of the particular feelings and religious convictions of particular sects, to forget whether the parties are Hindus or Muhammadans, to ask oneself whether, had the killing been done, for example, by a butcher in the course of his profession, it would in fact constitute a common nuisance.

Let us look at the present case from that point of view. The findings are that the killing was done at dawn, before sunrise. It was done at a place not near any public road, but there was a village pathway running along the top of an embankment 2½ feet high, 50 feet distant from the scene of the sacrifice. The sacrifice was actually made within a new room which, it appears, was being constructed at the side of the house of the petitioner, Samid. The plinth was 1½ feet high, and the wall had reached a height of two feet. There was thus a total height of 3½ feet of wall on the embankment side of the enclosure, but, as is obvious, persons walking along the embankment, as Baiju Gope and his companions were, could see within, and could see at least a portion of the floor. The other three sides of the room were bounded by the walls of houses.

In these circumstances, can it be said that a nuisance was committed? In my view, though I concede that the case is a marginal one, it cannot be so held. There is nothing in the case to suggest that it was not a case of ordinary qurbani carried out, as I have said, not with any special view to annoy the Hindus, but in pursuance of religious convictions of the Muhammadans. The place could not be said to be in any sense a public one. It was on the property of the petitioners, partly at least enclosed. A time was chosen when it might have been anticipated that there would be no one to overlook. Some Hindus did happen to see, just as in the Allahabad case to which I have referred one Hindu going along the road also saw into the compound, but it is impossible to take the view that the sacrifice was committed with the intention of annoying those Hindus. A semi-private place was chosen, and it was a pure chance that the sacrifice was seen.

In these circumstances I consider, upon the whole, that it was not open to the Courts below to hold that an offence under section 290 had been committed. In this view, the conviction under section 290 must also be set aside.

In the result, therefore, I would allow the application, make the rule absolute, set aside the convictions and sentences, and direct that the petitioners be acquitted.

Shearer, J.:— I agree.

K.D

Rule made absolute.