Mahadeo Sitaram Gadge vs The State Of Maharashtra And ...
2022 Latest Caselaw 12485 Bom

                                      1                Cr. Appln. 1751 / 2021


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO. 1751 OF 2021

Mahadeo S/o Sitaram Gadge,
Age : 57 years, Occ: Service as a
I/c Deputy Superintendent of Land Record,
Sakri, Tq. Sakri, Dist. Dhule,
R/o : Flat No. 5, Sadguru Apartment,
Adkenagar, Anand Road, Deolali Camp,
Nashik                                                    .. Applicant

         Versus

1) The State of Maharashtra
   Through Police Station Sakri,
   Tq. Sakri, Dist. Dhule

2) Vinod S/o Vasant Patil,
   Age : 43 years, Occu : Business,
   R/o : Behind the Sundar Mall,
   Sakri, Tq. Sakri Dist. Dhule                           .. Respondents

                                    ...
              Advocate for the applicant : Mr. Sunil S. Magre
            APP for the respondent - State : Mr. S.J. Salgare
   Advocate for the respondent no. 2 : Mr. G.D. Jain h/f. Mr. A.S. Sawant
                                    ...

                                CORAM     : MANGESH S. PATIL &
                                            ABHAY S. WAGHWASE, JJ.

                                RESERVED ON   : 15 NOVEMBER 2022
                                PRONOUNCED ON : 02 DECEMBER 2022

JUDGMENT (MANGESH S. PATIL, J.) :

The applicant is invoking the powers of this Court under

section 482 of the Code of Criminal Procedure and seeking

quashment of crime no. 183 of 2021 registered with Sakri Police

Station, Tq. Sakri, District Dhule for the offence punishable under

2 Cr. Appln. 1751 / 2021

section 295, 295-A and 506 of the Indian Penal Code, registered on an

FIR filed by the respondent no. 2.

2. We have heard both the sides.

3. The sum and substance of the allegations in the FIR filed

on 14th June 2021 are to the effect that the respondent no. 2 is a small

time vendor selling snacks from place to place. He alleged that he

also goes to the premises of Panchayat Samiti office and knows the

employees therein. He alleged that in the premises of Panchayat

Samiti, there is Office of the Land Records. There is an idol of

Mahadeo adjacent to that office of the Land Records installed on a

platform with necessary articles for performing pooja. He alleged that

on 9th June 2021 in the afternoon hours when he had gone to the office

of Panchayat Samiti, he saw that the present applicant was asking

couple of his Peons, namely, Ambarsingh Vanjari and Mahendra

Bhalchandra Pawar to remove and throw away the idol and other

articles from the platform and even threatened to demolish the

platform. When the Peons were reluctant, he threatened them and

then caused them to remove the utensils for performing pooja, a small

idol of Ganpati and photo frame of Saibaba. They obliged him by

throwing those outside the compound wall. He, therefore, alleged that

by such conduct, the applicant offended the religious feelings.

3 Cr. Appln. 1751 / 2021

4. The learned advocate for the applicant would submit that

there is enormous delay in lodging the FIR. Ingredients for constituting

the offence cannot be made out. Though it is a public office

frequented by number of Government servants, there was no intention

much less malice to offend any religion or to injure someone's religious

beliefs. He was working as a Deputy Superintendent of Land Records

at Dhule and was holding additional charge of the office of Taluka

Inspector of Land Records, Sakri wherein the incident had taken place.

Concocted and false allegations have been levelled against him and

he is being falsely implicated at the instance of someone who is

behind the curtains. The FIR has been lodged with due deliberations.

It would be sheer abuse of the process of law if the applicant is

allowed to be prosecuted with such concocted and delayed allegations

and the case is squarely covered by the principles laid down by the

Supreme Court in the matter of State of Haryana and others Vs.

Bhajan Lal; 1992 SCC Supp. (1) 335.

5. Learned APP and the learned advocate for the respondent

no. 2 strongly opposed the application. They submitted that the

incident had taken place as narrated in the FIR. Statements of both

those peons have been recorded. They have corroborated those

allegations. Considering the nature of the crime, an opportunity

4 Cr. Appln. 1751 / 2021

deserves to be extended to the prosecution to substantiate the

allegations.

6. It would be apposite to reproduce section 295 and 295-A

of the Indian Penal Code. They read as under:-

"295. Injuring or defiling place of worship with intent to insult the religion of any class. -- Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

295-A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. -- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

7. Since the applicant is seeking quashment of a crime, we

need to proceed by assuming that the incident had taken place as

alleged in the FIR and as can be made out from the statements of the

witnesses including the statements of the peons who have not been

similarly implicated along with the applicant.

5 Cr. Appln. 1751 / 2021

8. The FIR alleges about the applicant having exhorted these

two peons to throw away the idol and the other articles and they did

so. Their statements recorded by the Investigating Officer under

section 161 of the Code of Criminal Procedure these peons Vanjari

and Pawar have stated that the applicant had asked them to throw the

idol and the other articles away, and also threatened to demolish the

platform but both of them had merely removed those idols and articles

and placed them securely beyond the compound wall. If the version of

these peons is to be believed, it is eminent that the idol and the other

articles meant for performing pooja were not thrown away as alleged in

the FIR but were securedly placed elsewhere beyond the compound

wall.

9. True it is that there is one more statement recorded under

section 161 of the CrPC of one Yogesh Gajanan Bhamre narrating the

incident and also alleging about the idol and the articles having been

caused to be thrown away but then, when the peons who have not

been arrayed as accused, have specifically stated about having placed

those things securely beyond the compound wall, one will have to

proceed on the premise that that was the true state-of-affairs and it

was not an incident wherein these things were just thrown away.

10. We are referring to the afore-mentioned aspects in view of

the peculiar wordings of the offences punishable under section 295

6 Cr. Appln. 1751 / 2021

and 295-A of the Indian Penal Code, which require like any other crime

an intention or knowledge and destruction of or defiling of the place of

worship. In-fact, in view of the decision of the Supreme Court in the

matter of Ramji Lal Modi Vs. State of Utter Pradesh; AIR 1957 SC

620, section 295-A requires the malicious intention to insult the religion

or religious beliefs. If the incident has taken place as indicated herein-

above, it is quite apparent that the idols and the other articles meant

for performing pooja were lying in the premises of a public office and

the applicant merely caused them to be removed from that place and

pursuant to his insistence, two peons had securedly placed all these

articles beyond the compound wall. All these happenings do not

demonstrate that the place of worship or any other object held sacred

by any class of people were either damaged or defiled much less with

any intention or malicious intention of insulting any religion, which are

the necessary concomitants for constituting those offences.

11. Assuming for the sake of arguments that the applicant had

orally asked his subordinates / peons to throw away the idol and the

other articles, that would, in our considered view not sufficient to

indicate that he was intending to insult the religion. He merely wanted

the idols to be removed from the place and in all probability, because

the peons were reluctant to follow his instructions that he could have

used the word "फेका" (throw away).

7 Cr. Appln. 1751 / 2021

12. There is one more aspect. If as has been mentioned in

the FIR and as is stated by witness Yogesh Gajanan Bhamre, the

incident had taken place on 9th June 2021 and their religious feelings

were hurt, its reflection would have been in prompt action to set the

criminal law in motion. There is absolutely no explanation in the FIR

or even in the statement of that witness as to why they kept mum for a

period of 5-6 days. The cause for the delay apart, it would certainly

indicate that they may not have harboured any feeling of any insult to

their religion then and there when the incident was witnessed by them

and must have developed such a feeling subsequently which is

nothing but an afterthought.

13. Again, if such was the incident that had taken place in the

manner in which it has been made to be believed, we wonder as to

how, except the respondent no. 2 and that witness Yogesh Gajanan

Bhamre no person has come forward to express the effect of the

alleged incident on his religious feelings.

14. In view of the afore-mentioned facts and circumstances,

we are of the firm view that the material collected by the Investigating

Officer does not reveal all the necessary ingredients for constituting

the offence mentioned herein-above. It would be a sheer abuse of the

process of law, if the applicant who is a public servant and has merely

caused the office premises to be used for setting up of an idol, can be

8 Cr. Appln. 1751 / 2021

allowed to face the charge. The case is clearly covered by the

principles laid down in Bhajan Lal (supra).

15. The Application is allowed.

16. The crime no. 183 of 2021 registered with Sakri Police

Station, Tq. Sakri, District Dhule for the offence punishable under

section 295, 295-A and 506 of the Indian Penal Code is quashed and

set aside.

  [ ABHAY S. WAGHWASE ]                       [ MANGESH S. PATIL ]
         JUDGE                                      JUDGE

arp/