Mukand Ram Vs. State - Court Judgment

Excerpt:
criminal - nature of property - section 427 of indian penal code, 1860 - bull dedicated to lord shiva - deity not in shape of idol - bull sent to cattle pound for trespassing private property - sold by auction by cattle pound keeper the purchaser acquires proprietary title to it - can use the bull for ploughing his field or any other purpose - held, no offence committed by purchaser. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 3. in an agricultural country like india good cattle is a necessity and for good cattle stud bulls are required. to ensure a supply of good bulls the practice was encouraged on certain ceremonial occasions to brand a young bull of certain specifications and let it loose so that no one may be able to misappropriate it. this practice was enjoined as a part of religious duty and ensured the country of a free supply of good stud bulls and these bulls being deemed to be the property of lord shiva, no hindu could think of either ill-treating it or of appropriating it as his own property. it is a sad result but there appears to be no help for it.orderagarwala, j.1. this is a reference by the sessions judge of dehra dun. bal krishna complainant alleged that his father had dedicated a bull to lord shiva after religious ceremonies on 13-4-1948 and that the bull became public property according to ancient usage. the bull was sent to the cattle pound on 16-8-1949 and as no one got it released within 15 days it was sold at auction on 30-8-1949 and purchased by mukand ram applicant for rs. 76. after the purchase mukand ram used the bull for ploughing his fields. bal krishna, therefore, filed the complaint, which has given rise to this reference, charging the applicant with having committed an offence under section 295 (injuring or defining place of worship with intent to insult the religion of any class), section 295a (deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs) and section 403 (dishonest misappropriation of property) of the indian penal code. at the trial a charge under section 427, penal code, was framed. the terms of the charge were :'that you on or about 10-12-1949 in v. panditwari, p.s. rajpur committed mischief by intentionally keeping and detaining with you shivanadia, produced in court, knowing that you were thereby likely to cause wrongful loss to the sanatan brahmin public and detaining it thus diminished its value and utility and thereby committed an offence punishable under section 427, penal code.'the purchase of the ball was admitted by the applicant but he denied that it was shivanadia or that he knew of this fact. he also denied that he had put it under the plough. the learned magistrate found that the bull had a mark of delation before the auction and that the applicant had kept the bull in confinement knowing it to be shivanadia and had punctured its nose. relying on a case of the punjab chief court bahadur singh v. empress, 34 pun. re. 1888, the learned magistrate held that the bull could be the subject of mischief and holding that by keeping it in confinement and puncturing its nose the applicant had diminished its value and potentialities as a bull. he convicted the applicant under section 427, penal code, and sentenced him to pay a fine of rs. 50. against this order the applicant went up in revision to the learned sessions judge who has made this reference recommending that the conviction of applicant be set aside.2. the reference is not opposed on behalf of the complainant. in empress v. jamura, 1884 all. w. n. 87; queen empress v. bandhu, 8 all. 51 and queen empress v. nihal, 9 all. 348, dedicated bull was held to be nullius propritas, property of nobody, and as such not capable of being made a subject of theft or similar offence. in abdul qayum v. emperor a.i.r. (32) 1945 all. 430, it was held that when an animal was dedicated to a particular deity, it belonged to that deity and was not res nullius. it appears to me that a dedicated bull is neither nullius propritas or res nullius nor property of a particular deity.3. in an agricultural country like india good cattle is a necessity and for good cattle stud bulls are required. to ensure a supply of good bulls the practice was encouraged on certain ceremonial occasions to brand a young bull of certain specifications and let it loose so that no one may be able to misappropriate it. it was dedicated to lord shiva and there were directions that nobody should tie it up or ill-treat it. this practice was enjoined as a part of religious duty and ensured the country of a free supply of good stud bulls and these bulls being deemed to be the property of lord shiva, no hindu could think of either ill-treating it or of appropriating it as his own property. there being a religious sanctity attached to such a bull, people following other faiths could not hurt it for fear of hurting religious susceptibility of the hindu community. dedication to lord shiva, however, merely meant dedication for the benefit of the public at large and not to any particular deity installed in any temple or place. unless the deity, in the shape of an idol, is either in existence as a consecrated idol or is in contemplation of being so consecrated, the deity cannot be said to be a juristic person capable of holding property. the bull, in the present case, therefore, must be presumed to be public property. even so, the question still remains whether any offence was committed by the applicant. a public bull has no licence to trespass upon private property. if it does so trespass it can be rightly sent to the cattle pound. when it has been sent to the cattle-pound and no one appears to claim it on payment of charges cattle-pound authorities can sell it by auction. if the bull is so sold under the cattle trespass act the purchaser acquires proprietary title to it and the public lose their title to it. it is a sad result but there appears to be no help for it. after having purchased the bull in an auction sale the applicant could not be said be be guilty of mischief under section 427, penal code, or of having committed any other offence. the conviction of the applicant was, therefore, not justified and must be quashed.4. i, therefore, accept this reference, set aside the conviction of the applicant and acquit him. the fine, if paid, shall be refunded to him.

Judgment:
ORDER

Agarwala, J.

1. This is a reference by the Sessions Judge of Dehra Dun. Bal Krishna complainant alleged that his father had dedicated a bull to Lord Shiva after religious ceremonies on 13-4-1948 and that the bull became public property according to ancient usage. The bull was sent to the cattle pound on 16-8-1949 and as no one got it released within 15 days it was sold at auction on 30-8-1949 and purchased by Mukand Ram applicant for Rs. 76. After the purchase Mukand Ram used the bull for ploughing his fields. Bal Krishna, therefore, filed the complaint, which has given rise to this reference, charging the applicant with having committed an offence under Section 295 (injuring or defining place of worship with intent to insult the religion of any class), Section 295A (deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs) and Section 403 (dishonest misappropriation of property) of the Indian Penal Code. At the trial a charge under Section 427, Penal Code, was framed. The terms of the charge were :

'That you on or about 10-12-1949 in V. Panditwari, P.S. Rajpur committed mischief by intentionally keeping and detaining with you Shivanadia, produced in Court, knowing that you were thereby likely to cause wrongful loss to the Sanatan Brahmin public and detaining it thus diminished its value and utility and thereby committed an offence punishable under Section 427, Penal Code.'

The purchase of the ball was admitted by the applicant but he denied that it was Shivanadia or that he knew of this fact. He also denied that he had put it under the plough. The learned Magistrate found that the bull had a mark of delation before the auction and that the applicant had kept the bull in confinement knowing it to be Shivanadia and had punctured its nose. Relying on a case of the Punjab Chief Court Bahadur Singh v. Empress, 34 Pun. Re. 1888, the learned Magistrate held that the bull could be the subject of mischief and holding that by keeping it in confinement and puncturing its nose the applicant had diminished its value and potentialities as a bull. He convicted the applicant under Section 427, Penal Code, and sentenced him to pay a fine of Rs. 50. Against this order the applicant went up in revision to the learned Sessions Judge who has made this reference recommending that the conviction of applicant be set aside.

2. The reference is not opposed on behalf of the complainant. In Empress v. Jamura, 1884 ALL. W. N. 87; Queen Empress v. Bandhu, 8 ALL. 51 and Queen Empress v. Nihal, 9 ALL. 348, dedicated bull was held to be nullius propritas, property of nobody, and as such not capable of being made a subject of theft or similar offence. In Abdul Qayum v. Emperor A.I.R. (32) 1945 ALL. 430, it was held that when an animal was dedicated to a particular deity, it belonged to that deity and was not res nullius. It appears to me that a dedicated bull is neither nullius propritas or res nullius nor property of a particular deity.

3. In an agricultural country like India good cattle is a necessity and for good cattle stud bulls are required. To ensure a supply of good bulls the practice was encouraged on certain ceremonial occasions to brand a young bull of certain specifications and let it loose so that no one may be able to misappropriate it. It was dedicated to Lord Shiva and there were directions that nobody should tie it up or ill-treat it. This practice was enjoined as a part of religious duty and ensured the country of a free supply of good stud bulls and these bulls being deemed to be the property of Lord Shiva, no Hindu could think of either ill-treating it or of appropriating it as his own property. There being a religious sanctity attached to such a bull, people following other faiths could not hurt it for fear of hurting religious susceptibility of the Hindu community. Dedication to Lord Shiva, however, merely meant dedication for the benefit of the public at large and not to any particular deity installed in any temple or place. Unless the deity, in the shape of an idol, is either in existence as a consecrated idol or is in contemplation of being so consecrated, the deity cannot be said to be a juristic person capable of holding property. The bull, in the present case, therefore, must be presumed to be public property. Even so, the question still remains whether any offence was committed by the applicant. A public bull has no licence to trespass upon private property. If it does so trespass it can be rightly sent to the cattle pound. When it has been sent to the cattle-pound and no one appears to claim it on payment of charges cattle-pound authorities can sell it by auction. If the bull is so sold under the Cattle Trespass Act the purchaser acquires proprietary title to it and the public lose their title to it. It is a sad result but there appears to be no help for it. After having purchased the bull in an auction sale the applicant could not be said be be guilty of mischief under Section 427, Penal Code, or of having committed any other offence. The conviction of the applicant was, therefore, not justified and must be quashed.

4. I, therefore, accept this reference, set aside the conviction of the applicant and acquit him. The fine, if paid, shall be refunded to him.