Bombay High Court
Ravindra Vitthalrao Tahakik vs The State Of Maharashtra And Anr on 22 December, 2017
Bench: Prakash Deu Naik
(1) CriWP 887.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 887 of 2017
Ravindra Vitthalrao Tahakik,
Age - 46 years, Occupation - Service,
R/o Jai Bhavai Nagar, Gut No.1,
Aurangabad. ... PETITIONER
(Orig. Accused)
VERSUS
1. The State of Maharashtra,
Through Police Inspector,
CIDCO Police Station,
Aurangabad.
2. Vishal Kaduba Pakhare,
Age : 34 years, Occu.:
Social Work, R/o : C-57,
Old Police Colony, N-7,
CIDCO, Aurangabad. ...RESPONDENTS
----
Mr.V.S.Kadam, Advocate for the petitioner.
Mr.A.A.Jagatkar, APP for respondent No.1/State.
Mr.S.P.Dhobale, Advocate for respondent No.2.
---
CORAM : PRAKASH D. NAIK, J.
DATE OF RESERVING THE JUDGMENT : 04th DECEMBER, 2017.
DATE OF PRONOUNCING THE JUDGMENT : 22nd DECEMBER, 2017.
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(2) CriWP 887.17
JUDGMENT :
By order dated 20.11.2017, the parties were put
to notice that the petition will be heard finally at the
stage of admission. In view of that the parties were
heard for final disposal of this petition.
2] The petitioner has taken exception to the order
passed by the Additional Sessions Judge-6, Aurangabad on
6th April, 2017 below Exhibit-7 in Sessions Case No. 115
of 2016.
3] The petitioner is the original accused in
Sessions Case No. 115 of 2016 pending before the Court of
Additional Sessions Judge-6, Aurangabad. The First
Information Report (F.I.R.No.I-374 of 2015) was
registered with CIDCO Police Station, Aurangabad, under
Section 295A of Indian Penal Code ( for short " the IPC),
Section 7(c) of the Protection of Civil Rights Act, 1955
and Sections 3(1)(x) and 3(r)(u),(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities)
(3) CriWP 887.17
Act, 1989. The F.I.R.was registered on 23-07-2015. The
investigation was completed and the charge-sheet was
filed before the Court of Special Judge, Aurangabad.
4] The prosecution case is that on 4 th July 2015
news appeared in the daily Newspaper 'Dainik Lokpatra' in
which it was stated that there was dispute between two
families. The contents of the article was affecting
sentiments of Ambedkar Samaj. The contents of the said
news item was affecting and intended to outrage religious
feelings by insulting their beliefs. It is alleged that
the editor exaggerated the behaviour of husband of
victim. The article indicated as to who will teach
follower of Dr.Babasaheb. The victim had grievance
against the women who is allegedly in relationship with
her husband, who comes from family of respected person.
The F.I.R. was lodged on 23-07-2015 and the offence, as
aforesaid, was registered. The police completed
investigation and filed a report under Section 173 of
Cr.P.C.
(4) CriWP 887.17
5] The petitioner's contention is that he is a
journalist and working as an Executive Editor of daily
newspaper 'Lokpatra' published at Nanded. The said
newspaper has been published since 1991, whereas news
articles are published in the column "Thet Bola". The
grievances of the persons, who are victims in society,
are being reflected in the articles written in the said
column. Persons who are aggrieved in life and who are
not getting support of their family, are submitting their
grievances in writing and the newspaper was printing the
same in the said column. In June-2015, Smt. Ashwini
Kadam, who is married to Dr. Prakash Kadam lodged her
grievance with the petitioner. She had stated that she
is married to Dr. Prakash Kadam in 2003. He is
practising at Aurangabad. They were residing at
Aurangabad and out of the said wedlock, a daughter was
born. She had further stated that there are matrimonial
disputes between Smt. Ashwini Kadam and her husband and
she has filed complaint in that regard. She also stated
(5) CriWP 887.17
that Dr. Kadam is in relationship with another lady. She
was assaulted by her husband and driven her out of house
alongwith her daughter. She had filed a complaint with
the Commissioner of Police, Aurangabad. In respect to
her complaint, the F.I.R. was registered as C.R. No. I-87
of 2015 on 30th June, 2015 with Begumpura Police Station,
Aurangabad under Sections 498-A, 323 and 504 of the IPC.
Smt. Ashwini Kadam narrated and addressed a letter in her
own hand writing to the petitioner who is an Executive
Editor of daily newspaper "Lokpatra", mentioning the
above facts and requested him to publish the said
grievance in the column "Thet Bola". The copy of the
letter has been annexed to the petition. The petitioner
accordingly published the grievance of Smt. Ashwini Kadam
as per interview given by her without expressing any
personal opinion in the newspaper " Dainik Lokpatra".
There was mixed response from various parts of the
society. In view of the grievances expressed by some
people, the petitioner published an apology on 6th July,
2015 at prominent place on the front page of the
(6) CriWP 887.17
newspaper, in relation to article dated 4th July, 2015.
Respondent No. 2 further filed a complaint on 23-07-2015
with CIDCO Police Station alleging that the news item was
published with a view to humiliate the persons belonging
to Scheduled Castes and Dr. Babasaheb Ambedkar, who is
the author of Constitution. It was further alleged that
there was private dispute between two families and still
with a view to defame the person belonging to the
backward classes, the news item was published. Initially
the police did not take cognizance about the complaint
filed by respondent No.2. Hence, he filed a petition
before this Court. On the basis of the statement of
learned Assistant Public Prosecutor that the F.I.R. has
been registered, The Writ Petition No. 900 of 2015 was
disposed of vide order dated 28th July, 2015.
6] Smt. Ashwini Kadam forwarded an application to
the Commisioner of Police on 25-07-2015 stating that the
news published in "Dainik Lokpatra" under the Column
"Thet bola" on 4th July, 2015, contains her own thoughts
(7) CriWP 887.17
and feelings which are printed as per her interview.
7] The petitioner preferred an application before
the Sessions Court, Aurangabad for anticipatory bail
which was allowed on 28-07-2015. The petitioner states
that the Chief Editor of the said newspaper filed
Criminal Writ Petition No. 1503 of 2015 before the
Division Bench of this Court for quashing F.I.R. bearing
C.R. No. I-374 of 2015. The High Court allowed the said
petition and the F.I.R. was quashed. The Division Bench
of this Court has observed that at the time of incident,
Section 3 of the Act was not amended and the Ordinance of
2014 had lapsed and Section 3 (r),(v) was not part of the
statute on the date of incident. The copy of the order
dated 25th February, 2016, has been annexed to the
petition. However, the petitioner's application for
discharge preferred before the Sessions Court in Sessions
Case No. 115 of 2016 was rejected by the Sessions Judge
on 6th April, 2017.
(8) CriWP 887.17
8] The learned counsel for the petitioner advanced
the following submissions :-
(a) The petitioner is journalist and working as an
Executive Editor of daily newspaper. The disputed
article was published under the column "Thet bola"on the
basis of the application tendered by the aggrieved
person. The article was relating to the sufferings of
Smt. Ashwini Kadam at the hands of her husband who was
allegedly in relationship with another woman ;
(b) The petitioner has not expressed his personal
opinion and it was re-production of the grievance of the
aggrieved person. The article was not intended to harm
the sentiments of people belonging to Scheduled Castes.
Section 7(a) of the Provision of the Civil Rights as well
as provisions of the Atrocities Act are not applicable.
The evidence under Section 295A of the IPC is also not
made out ;
(c) There was no attempt on the part of the
petitioner to insult or intimidate with intention to
humiliate the complainant or any other person. The
(9) CriWP 887.17
column in the said newspaper was run to ventilate the
grievances or sufferings of persons in society ;
(d) The High Court had quashed the proceedings
against co-accused on the ground that the provisions of
the Atrocities Act, which were invoked in the complaint,
cannot be applied on account of lapse of Ordinance. The
said Judgment is applicable to the case of the petitioner
;
(e) The Scheduled Castes and Scheduled Tribes
( Prevention of Atrocities ) Amendment Ordinance 2014
came to be published on 4th March, 2014 and it was in
existence upto six months i.e. till 3rd September, 2014.
The said Ordinance has not become part of statute and,
therefore, in view of Article 123 of Constitution Act, it
has lapsed. Although Ordinance had lapsed, the charge-
sheet was filed in the case.
(f) The Trial Court did not consider Article 123 of
the Constitution and without making out any case under
Section 295A of the IPC, rejected the discharge
application. Respondent No. 2 has no locus standi to file
( 10 ) CriWP 887.17
such complaint. The Trial Court has erroneously rejected
the application for discharge without assigning proper
reasons ;
(g) The Trial Court ought not to have taken
cognizance of the complaint for an offence under Section
295A of the IPC, without previous sanction of the Central
Government or State Government ;
(h) The Trial Court has rejected the application on
the basis of the observation that the High Court, while
quashing the proceedings against co-accused, had observed
that the offence may be made out under Section 153A of
the IPC. The case may continue against the accused under
Section 153A of the IPC. The Court, therefore, rejected
the application.
9] Learned APP and the learned counsel for
respondent No. 2 controverted the submissions of the
petitioner. It is submitted that the charge-sheet makes
out a prima-facie case against the petitioner. The
contents of the news item published in the newspaper
( 11 ) CriWP 887.17
makes out an offence against the petitioner. No case for
discharge was made out. The grounds raised by the
petitioner can be considered at the time of the trial.
The Assistant Commissioner of Police filed an affidavit
opposing the prayers in the petition. After the
publication of article, various reactions came from
various parts of society as the complaint was lodged.
The dispute between Smt. Ashwini Kadam and her husband
was a private dispute, and in spite of that to humiliate
the person belonging to the backward class/community, the
news item was published. The police conducted
investigation, recorded statements of various witnesses,
collected documents and filed charge-sheet on 13-10-2015.
At the stage of framing of charge, the Trial Court is not
expected to carry out any inquiry in detail. Prima-facie
case is made out against the petitioner and the trial can
be proceeded. The petitioner had written a letter to
Assistant Commissioner of Police accepting the
responsibility of the news item. It is, therefore,
submitted that the petition may be dismissed.
( 12 ) CriWP 887.17
10] The petitioner is a journalist and Executive
Editor of daily newspaper 'Lokpatra' published at Nanded.
The article had appeared in the column 'Thet bola'. The
said column re-produces the versions received as
articles, in respect to the persons who are undergoing
sufferings in society. There was matrimonial dispute
between Smt. Ashwini Kadam and her husband and a child
was born out of the wedlock. Smt. Ashwini Kadam had a
grievance that her husband is having illicit relationship
with another lady. The complaint is filed by respondent
No. 2 alleging that the article hurts the sentiments and
feelings of the Scheduled Castes, which constitute the
offence, as alleged in the F.I.R.lodged by him.
11) On perusal of the order passed by the Division
Bench of this Court, it appears that the co-accused had
filed said petition challenging the charge-sheet in the
present proceedings. The petitioner therein was the
owner of the newspaper in which the offending news item
( 13 ) CriWP 887.17
was published. The Court observed that at the time of
incident Section 3 of the said Act did not contain
clauses (r), (u) and (v) of Section 3. The said clauses
were included as a part of Section 3 by Ordinance of
2014. The Ordinance has lapsed on 4-7-2015. On the day
of incident, the quoted clauses (r), (u) and (v) of
Section 3 were not part of the said Section. The Court
has, however, noted that now the Ordinance has become law
vide amendment on 2016, the amendment would not apply
retrospectively. Thus, none of the clauses could have
been utilised against the accused. It was also observed
that the contents of the article would not amount to
offence punishable under Section 3(1) of the Act or under
Section 7(1)(d) or (c) of the Protection of Civil Rights
Act, 1955. The Court, therefore, allowed the petition
and charge-sheet against the said accused was set aside.
However, the Court made a passing reference to the fact
that news item might amount to offence punishable under
section 153A of the IPC and case may continue against
other accused for said offence.
( 14 ) CriWP 887.17
12] The learned counsel for the petitioner submits
that no charge-sheet is filed for the offence punishable
under Section 153A of the IPC. The Trial Court has
rejected the application on the basis of the observations
made by the High Court in the aforesaid order. The Trial
Court has not stated as to how Section 153A of the IPC is
applicable. The learned counsel for the petitioner
submitted that even for taking cognizance under Section
153A of the IPC, the previous sanction is required from
the Central Government or State Government in accordance
with Section 196 of Cr.P.C. There is no such sanction to
prosecute the petitioner either for the offence
punishable under Section 295A or 153A of the IPC.
13] Clause (r) of Section 3 of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities Act), 1989
provides "whoever intentionally insults or intimidates
with intent to humiliate a member of a Scheduled Caste or
a Scheduled Tribe in any place within public view".
( 15 ) CriWP 887.17
Clause (u) states that " whoever, by words
either written or spoken or by signs or by visible
representation or otherwise promotes or attempts to
promote feelings of enmity, hatred or ill - will against
members of the Scheduled Castes or the Scheduled Tribes"
and,
Clause (v) refers to the offence "by words
either written or spoken or by any other means
disrespects any late person held in high esteem by
members of the Scheduled Castes or the Scheduled Tribes".
As reflected in the order passed by the Division
Bench, on the day of the incident, said provision was not
in existence and ought not to have been applied. The
said order has not been challenged by the prosecution.
The observations made in the said order, are not disputed
in any manner in the affidavit in reply filed by the
respondents. Section 196 of the Cr.P.C. categorically
states that no Court shall take cognizance of any offence
punishable under Sections 153A of the IPC and 295A of the
( 16 ) CriWP 887.17
IPC or a criminal conspiracy to commit such offence or
abatement to commit such offence, without previous
sanction of the Central Government or the State
Government. In the present case, it is not pointed out
by the prosecution that a sanction as contemplated under
Section 196 of the Cr.P.C. is sought. In any case the
charge-sheet was not filed under Section 153A of the IPC.
In the circumstances, the proceedings against the
petitioner are required to be quashed and set aside.
Hence, I pass the following order :
O R D E R
1. Criminal Writ Petition No. 887 of 2017
is allowed.
2. The impugned order dated 6th April,
2017 passed by Additional Sessions Judge-6,
Aurangabad in Sessions Case No. 115 of 2016
is quashed and set aside.
3. The petitioner is discharged from the
proceedings in Sessions Case No. 115 of
2016 pending before the Court of Additional
Sessions Judge-6, Aurangabad.
4. The petition is disposed of.
( Prakash D. Naik, J.)
shp
