Jafar Ali Sher Ali Sayyad vs The State Of Mah. Thr. Pso Ps, ...
2021 Latest Caselaw 12674 Bom

                                              1                               30-apl-1346-19j.odt



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

               CRIMINAL APPLICATION (APL) NO. 1346 OF 2019

  Jafar Ali Sher Ali Sayyad,
  Aged about 58 years, Occ. Service,
  R/o. Ashok Nagar, Ward No. 3,
  Kanhan, Kanhan-Pimpari,
  Tah. Parseoni, Dist. Nagpur.                                              . . . APPLICANT

                         ...V E R S U S..

  1. State of Maharashtra through
     Police Station Officer,
     Police Station, Kanhan,
     Tah. Parseoni, Dist. Nagpur.

  2. Manish Ranjeet Singh,
     Age Major, Occ.
     R/o. Tekadi Colony, Kanhan,
     Tah. Parseoni, Dist. Nagpur.                                   . . NON-APPLICANTS

 ------------------------------------------------------------------------------------------------
 Shri Sandip D. Tatke, Advocate for applicant.
 Shri S. M. Ghodeswar, A.P.P. for non-applicants/State.
 -----------------------------------------------------------------------------------------------

                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 06.09.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule is made returnable forthwith. Heard finally by

consent of the parties.

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3. By this application under Section 482 of the Code of

Criminal Procedure, the applicant is challenging registration of the

First Information Report (FIR) No. 624/2019, dated 09.10.2019

registered with the non-applicant no. 1- Police Station for the offence

punishable under Sections 295A and 153A of the Indian Penal Code.

4. The FIR came to be registered against the applicant with

accusations that the applicant is a Member of WhatsApp group

consisting of the complainent and other colony members created for

the purpose of Durga Pooja and other programmes of Durga Festival.

The said Durga Festival was arranged by the local members of the area

of the society. It is alleged that on night of 09.10.2019 at around 7.00

p.m., the applicant posted abusive and dis-respectful message about

God Durga with intention to create disturbance in the locality and with

intention to hurt public sentiments in the locality. Therefore, the non-

applicant no. 2 lodged report with the investigation agency.

5. The applicant has therefore challenged registration of the

FIR by filing the present application. This Court on 22.12.2019 issued

notice to the non-applicants. The non-applicant no. 1 has filed reply

stating that the Investigating Authority found during the investigation

that the message posted by the applicant is seriously abusive message,

which was sent to the members of the group by the applicant. It is also

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stated that after registration of the the FIR, initially the applicant was

absconding and did not co-operate with the investigation but, after

getting protection in the form of anticipatory bail, the applicant

appeared before the Investigating Agency. It is further stated that

during the investigation, it was found that the applicant deleted the

offending message from his Cell Phone with intention to destroy

evidence. It is stated that during the investigation, statements of

various witnesses have been recorded, which show that the message

posted by the applicant is highly objectionable.

6. We have carefully considered the allegations in the FIR

and reply filed by the Investigating Agency. On careful scrutiny of the

FIR, we are of the prima facie opinion that the message posted by the

applicant, as stated in the FIR, is objectionable. Whether there was

malicious intention on the part of the applicant is a matter to be

considered by the Investigating Agency during the investigation. We

are of the opinion that at this stage, the right of the Investigating

Agency to investigate into the offence cannot be throttled. It is well

settled that discretion conferred by Section 482 of the Code of

Criminal Procedure is to be exercised judiciously and in consonance

with well established principles set out by the Hon'ble Supreme Court.

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7. The power to quash the FIR cannot be invoked to scuffle

the legitimate prosecution. This being settled position in law and it

could not have proper to express conclusive opinion as to the nature of

the offence or nature of the investigation to be carried out by the

Investigating Agency and it would be advisable to leave it for the

Investigating Agency to consider as to whether there is sufficient

material available against the applicant, in relation to the offence

alleged against the applicant are fulfilled or not. Whether the contents

of the message is malicious or intended to outrage religious sentiments

of the community cannot be considered at this stage and it is in the

interest of justice to be left to the Investigating Agency to be

determined.

8. Taking into consideration the overall view of the matter,

we are of the view that the applicant has not made out case for

interference under Section 482 of the Code of Criminal Procedure.

9. The application is therefore dismissed. Rule discharged.

                               JUDGE                                  JUDGE




RR Jaiswal