Bombay High Court
Abdul Karim vs The State Of Maharashtra on 2 December, 2013
Bench: A.B. Chaudhari, Z.A. Haq
1 apl315.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.315/2013
Abdul Karim S/o Samruddin,
aged about 61 Yrs., Occu. Private Work,
R/o Muzafar Nagar, Akola,
Tq. & Distt. Akola. ..Applicant.
..V/s..
1. The State of Maharashtra,
through Police Station Officer,
P.S. Ramdaspeth, Akola,
Tq. & Distt. Akola.
2. Ayub Khan Shaikh Rehman,
aged about 35, Occu. Cleric,
Nayegaon, Akotfail,
Akola. ..Respondents.
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Mr. A.B. Mirza, Adv. for applicant.
Mrs. K.S. Joshi, APP for respondent no.1.
Mr. S.O. Ahmed, Adv. for respondent no.2.
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CORAM : A.B. CHAUDHARI AND
Z.A. HAQ, JJ.
DATE : 02.12.2013
JUDGMENT (Per Z.A. Haq, J.)
1. Heard Shri A.B. Mirza, the learned counsel for the applicant, Smt.
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K.S. Joshi, the learned Additional Public Prosecutor, for the non-applicant no.1
and Shri S.O. Ahmed, the learned counsel for the non-applicant no.2.
2. The applicant has approached this Court invoking the jurisdiction
under Section 482 of the Criminal Procedure Code and praying for quashing of
the Summary Criminal Case No.3271/2012 pending before the 5th J.M.F.C. Court,
Akola for the offence punishable under Section 294 (b) of the Indian Penal Code
which has arisen out of the Final Report No.96/2012 dated 21 st December, 2012
and the F.I.R. No.3076/2012 dated 8th August, 2012 filed by the Police Station
Ramdaspeth, Akola against the applicant.
3. The complainant/non-applicant no.2 has filed the complaint with the
non-applicant no.1 on 7th August, 2012 alleging that when the complainant and
his friends were sitting on bullock-cart, they heard that the applicant has made
derogatory statements against Mohammad Saheb. According to the
complainant/non-applicant no.2, the statements are made by the applicant on
the loudspeaker and because of it there is every possibility that the religious
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feelings of the Muslims are insulted and it may result in disputes.
4. Shri Mirza, the learned counsel for the applicant, has submitted that
the prosecution of the applicant for the offence punishable under Section 294(b)
of the Indian Penal Code is an abuse of the process of law inasmuch as the
complaint made by the non-applicant no.2 does not make out any offence
punishable under Section 294(b) of the Indian Penal Code. According to the
applicant, the filing of the complaint by the non-applicant no.2 against the
applicant is out of grudge of the persons belonging to different sects of the
Muslim Community, against the applicant. Mr. Mirza, the learned counsel for the
applicant, submitted that the statements in the complaint show that the complaint
is made upon hearsay evidence and even the complainant does not disclose any
eye witness to the incident. Mr. Mirza further submitted that the non-applicant
no.1 has also not discharged its statutory obligation of conducting proper
investigation before filing the case in the Court of learned Magistrate.
5. Mrs. Joshi, the learned Additional Public Prosecutor, has opposed
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the application filed by the applicant and submitted that the contents of the
complaint prima facie disclose an offence punishable under Section 294(b) of the
Indian Penal Code and therefore, this Court should not exercise jurisdiction
under Section 482 of the Criminal Procedure Code for quashing of the
proceedings.
6. Mr. Ahmed, the learned counsel for the non-applicant no.2, has
submitted that the words used by the applicant, as stated in the complaint and
the facts that the applicant has used such derogatory words against Mohammad
Saheb in the loudspeaker, shows that the applicant has intentionally committed
an act to annoy the feelings of the Muslims.
7. We have heard the learned counsel for the applicant, the learned
Additional Public Prosecutor for the non-applicant no.1 and the learned counsel
for the non-applicant no.2 and have examined the record and more specifically
the final report.
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8. Section 294(b) of the Indian Penal Code reads as follows :-
"294. Obscene acts and songs - Whoever, to the
annoyance of others -
(a) .....
(b) sings, recites or utters any obscene song, ballad or
words, in or near any public place,
shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with both."
9.
The basic requirement for prosecuting a person under Section
294(b) of the Indian Penal Code is that the person should have sung, recited or
uttered any obscene song, ballad or words to the annoyance of others. The
complaint made by the non-applicant no.2 to the non-applicant no.1 does not
show that the applicant has recited or uttered obscene words. Moreover, the
complainant has not pointed out as to how the alleged words are recited or
uttered by the applicant with the intention of causing annoyance to others. The
ingredients required for making out an offence punishable under Section 294(b)
of the Indian Penal Code are not made out. There is no prima facie material or
evidence to show that the applicant has uttered or recited words which can be
said to be obscene. The complaint does not prima facie shows that the alleged
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words are recited by the applicant for causing annoyance to the others.
10. In our view, the complaint, as made by the non-applicant no.2,
against the applicant does not make out any case for prosecution of the applicant
under Section 294(b) of the Indian Penal Code and the prosecution of the
applicant for the above mentioned offence is an abuse of the process of law.
Therefore, we are of the view that this is a fit case where jurisdiction under
Section 482 of the Criminal Procedure Code has to be invoked and the
prosecution of the applicant needs to be quashed.
11. The application is allowed.
Rule is made absolute in terms of prayer clause (a) and (b).
In the circumstances, the parties to bear their own costs.
JUDGE JUDGE
Tambaskar.
