Bombay High Court
Vineet Kacker vs The State Of Maharashtra on 21 September, 2017
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2713 OF 2009
Mr. Vineet Kacker )
An adult Indian Inhabitant, )
Age 44 years, Residing at F 60, )
Green Park Main, )
New Delhi - 110 016 ) ......Petitioner
versus
1) The State of Maharashtra )
Colaba Police Station, )
Mumbai - 400 001. )
2) Mr. Arvind Gawde, )
18, Modi Street, 3rd Floor, )
Fort, Mumbai - 400 001. ) ......Respondents
Dr. Abhinav Chandrachud along with Ms. Netaji Gawade and Mr. Akshay
Udeshi i/b. Sanjay Udeshi and Co., advocates for the petitioner.
Mr. A. R. Kapadnis, APP for the State.
CORAM : RANJIT MORE &
SMT.SADHANA JADHAV, JJ.
DATE : 21st SEPTEMBER, 2017.
Oral Judgment : (Per Ranjit More, J.)
The petition was placed before the learned Single Judge of this
Court on 20th April, 2010 when this Court admitted the petition and
granted interim relief in terms of prayer clause (ii) thereby staying the
investigation of the subject FIR. In due course, the petition is now placed
for final hearing before this Bench.
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2. Heard Dr.Chandrachud, learned counsel for the petitioner and
Mr. Kapadnis, learned APP for the State. None appeared on behalf of the
respondent No.2/complainant despite service. Learned counsel for the
petitioner tendered affidavit of service dated 21st September, 2017. The
same is taken on record.
3. The petitioner by invoking jurisdiction of this Court under
Article 226 of the Constitution of India read with Section 482 of the Code
of the Criminal Procedure, 1973, approached this Court for seeking
quashment of FIR bearing CR No.185 of 2008 registered with Colaba
Police Station, at the instance of respondent No.2 against the petitioner
and one Jeetu Hinduja for the offences punishable under Sections 295-A
and 34 of the Indian Penal Code, 1860 (for short "the IPC").
4. In the said FIR, the respondent No.2/complainant alleged that
the petitioner in collusion with the said Jeetu Hinduja, organiser of the
exhibition, organised the Exhibition at Museum Art Gallery conducted by
Chhatrapati Shivaji Maharaj Museum and exhibited the "Kharaus"
(slippers) made from ceramic stone whereupon the images of Hindu
Gods and Goddesses were sketched and have thereby hurt the religious
feelings.
5. Dr. Chandrachud, learned counsel for the petitioner, took us
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through the copy of the FIR and submitted that the same does not
disclose deliberate and malicious intention on the part of the petitioner
to outrage the religious feelings of any class of Citizens and, therefore,
the offence under Section 295-A of the IPC is not made out. He relied
upon a decision of the Constitutional Bench of the Apex Court in Ramji
Lal Modi versus State of U.P., 1957 SCR 860, a decision of three Bench
Judge in Mahendra Singh Dhoni versus Yerraguntla Shyamsunder
and anr. (2017) 7 SCC and a decision of Division Bench of this Court in
Bhau Shankarrao Suradkar and anr. versus State of Maharashtra
and ors. 1999 (2) Mh.L.J..
6. Mr. Kapadnis, learned APP, per contra opposed the petition.
He submitted that the FIR does disclose commission of cognizable
offence under Section 295-A of the IPC. He also stated that from the
reading of the FIR, it is clear that the petitioner deliberately and
maliciously with the intention of outraging the religious feelings of the
public at large depicted the images of the Hindu Gods and Goddesses on
"Kharaus" (slippers).
7. Having considered the rival submissions and having perused
the allegations made in the FIR, we find merit in the petition. Before
adverting to the facts of the present case, we must deal with the
decisions cited across the Bar by the learned counsel for the petitioner.
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In Ramji Lal Modi (supra), the constitutional validity of the
provisions of Section 295-A of the IPC was challenged on the ground
that it is ultra -vires and unconstitutional. The Apex Court upheld the
validity of the said Section. For our purpose, the observations made in
paragraph 9 are relevant. In the said paragraph, the Constitutional
Bench of the Supreme Court held that Section 295-A does not penalise
any and every act of insult to or attempt to insult the religion or the
religious beliefs of a class of citizens but it penalises only those acts of
insults to or those varieties of attempts to insult the religion or the
religious beliefs of a class of citizens, which are perpetrated with the
deliberate and malicious intention of outraging the religious feelings of
that class. It was further observed that insults to religion offered
unwittingly or carelessly or without any deliberate or malicious intention
to outrage the religious feelings of that class do not come within the
purview of the said section.
Recently, the scope and purview of Section 295-A fell for
consideration before the three Judge Bench of the Apex Court in
Mahendra Singh Dhoni versus Yerraguntla Shyamsundar and anr.
(2017) 7 SCC 760. The Apex Court relied upon the decision of the
Constitutional Bench in Ramji Lal Modi (supra) and made following
observations in paragraph (6) which reads as under :
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"6. On a perusal of the aforesaid passages, it is clear as crystal
that Section 295A does not stipulate everything to be
penalised and any and every act would tantamount to insult or
attempt to insult the religion or the religious beliefs of class of
citizens. It penalise only those acts of insults to or those
varieties of attempts to insult the religion or religious belief of
a class of citizens which are perpetrated with the deliberate
and malicious intention of outraging the religious feelings of
that class of citizens. Insults to religion offered unwittingly or
carelessly or without any deliberate or malicious intention to
outrage the religious feelings of that class do not come within
the Section. The Constitution Bench has further clarified that
the said provision only punishes the aggravated form of insult
to religion when it is perpetrated with the deliberate and
malicious intention of outraging the religious feelings of that
class. Emphasis has been laid on the calculated tendency of
the said aggravated form of insult and also to disrupt the
public order to invite the penalty."
Reading of the ratio of the above two decisions, makes it
abundantly clear that Section 295-A does not penalise any or every act
of insult but it penalises only those acts of insults which are perpetrated
with the deliberate and malicious intention of outraging the religious
feeling of that class.
8. In the light of the ratio laid down by the Apex Court in the
above two decisions, let us consider the allegations made in the FIR. On
the date of the incident, the respondent No.2 along with his friend
Avinash Avati had gone to see the open exhibition at Museum Art Gallery
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conducted by Chhatrapati Shivaji Maharaj Museum at Colaba. At the said
place, the exhibition of (R)evolution, a solo exhibition of New Ceramic by
the petitioner on behalf of the Fine Art Company had been organised.
Another accused viz.Jeetu Hinduja appears to be an organiser of the said
exhibition. The respondent No.2 and his friend while watching the said
artworks found replicas of three pairs of "Kharaus" (slippers) made from
ceramic stones kept on the table in one corner of the Museum Art
Gallery and next to the table, four more replicas of "Kharaus" (slippers)
were kept on the floor. On close observation, he found that images of
various Hindu Gods and Goddesses were sketched on the said replicas.
He further alleged in the FIR that his and his friend's religious feelings
were hurt and, therefore, he lodged the subject FIR.
The reading of the FIR makes two things clear. Firstly, the
"Kharaus" (slippers) made from the ceramic stones were kept on the
table in one corner and secondly, only on minute observation, the
petitioner found the images of various Hindu gods and goddesses
sketched on them. The FIR also shows that the religious feelings of the
respondent No.2 and his friend were hurt.
From the above, it is clear to our mind that the said ceramic
"Kharaus" (slippers), on which, the images of Hindu Gods and
Goddesses were sketched were not displayed prominently. It is also
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clear that the respondent No.2 came to know about the said images only
after observing the said "Kharaus" (slippers) minutely. These two things
makes it clear that it was not the petitioner or the organiser's intention
to outrage the religious feeling of any class of citizens. At the most, it
can be said that the religious feeling of the respondent No.2 and his
friend who had visited the said exhibition were hurt. However, that
cannot come within the purview of Section 295-A of the IPC. At this
stage, it must also be taken into consideration that the "Kharaus"
(slippers), on which, the images of Hindu Gods and Goddesses were
sketched were not meant to be worn by anyone and, therefore,
there is no question of outraging or hurting the religious feelings of any
class of citizens. It appears that the alleged offending work of art is an
artistic expression of the petitioner and, a piece of skill, which
demonstrates his vision and view point. It does not contain any
deliberate malice and neither is it an attempt to insult the religion or
the religious beliefs of people belonging to any class of society. If the
ratio of the above Apex Court decisions is applied to the facts and
circumstances of the present case, then, we are of the considered view
that no cognizable offence punishable under Section 295-A of the IPC is
made out or disclosed.
9. Before parting with this order, a reference must also be made to
the decision of this Court in Bhau Shankarro Suradkar and anr.
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(supra). The petitioner, in this petition, by invoking the jurisdiction of
the Court under Article 226 of the Constitution of India sought directions
from the High Court that the manufacturers of the fire crackers need not
affix photographs of Gods and Goddesses of Hindu religion on the fire
crackers. The Division Bench observed that there was no intention of
hurting anyone's feelings by selling such fire crackers or by bursting such
fire crackers and, ultimately dismissed the petition. This decision is also
applicable to the facts and circumstances of the present case as there
was no malicious intention on the part of the petitioner.
10. In the light of the above, in our considered view, the
continuation of the criminal proceedings against the petitioner is an
abuse of process of law. The subject FIR deserves to be quashed and
set-aside as against the petitioner and co-accused viz. Jeetu Hinduja.
Rule is, accordingly, made absolute in terms of prayer clause (i) and the
petition is disposed off as such.
11. The petitioner is at liberty to apply for return of the articles
viz. "Kharaus" (slippers) which were ceased by the police during
investigation of the subject FIR, if not already returned to the petitioner.
[SMT. SADHANA JADHAV, J.] [RANJIT MORE, J.]
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