Bombay High Court
Mukesh S/O Dattatray Mudgal vs State Of Mah. Thr. Pso Umred Dist.Nagpur ... on 12 August, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:9188-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] No. 1378 OF 2022.
Mr. Mukesh s/o Dattatraya Mudgal,
Age - 57 years, Occupation - Doctor,
resident of Kawarapeth, Umred,
Tahsil Umred, District Nagpur. ... APPLICANT.
VERSUS
1.State of Maharashtra,
through PSO Umred,
District Nagpur.
2.Kadir s/o Maqbul Sheikh,
Aged 39 years, Occupation - Nil,
resident of Kawarapeth, Near
Durgapur School, Umred,
Tahsil Umred, District Nagpur. ... NON-APPLICANT.
---------------------------------
Mr. A.M. Jaltare, Advocate for the Applicant.
Mrs. K.H. Bhondge, A.P.P. for Non-applicant No.1.
Mr. R.S. Akbani, Advocate for Non-applicant No.2.
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CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : AUGUST 12, 2024.
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ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard. Admit.
By consent of the learned Counsel present for the parties,
the matter is taken up for final disposal.
2. This is an application in terms of Section 482 of the Code
of Criminal Procedure, requiring this Court to invoke inherent powers
to quash the criminal prosecution namely R.C.C.No.1049/2022
pending on the file of Judicial Magistrate First Class, Umred, arising
out of first information report bearing Crime No.548/2022 registered
with Umred Police Station, District Nagpur for the offence punishable
under Sections 153-A and 295-A of the Indian Penal Code.
3. The unusual facts of the case are that on 07.09.2022, the
informant Kadir Sheikh casually went to a pan shop, where a near by
resident Aayan Sheikh had forwarded audio call recording of 17.26
minutes on the mobile of the informant through Whatsapp message.
The informant heard the said audio recording, wherein one man and a
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woman were talking with each other on mobile phone. The said man
[accused], was talking about some objectionable things against a
particular community. The said conversation was approximately of
the month of April, 2022. The informant has identified that the
woman participating in the conversation was resident of his locality
namely Sultana Sheikh, whilst the man saying objectionable things
was a local Ex-corporator i.e. the present applicant.
4. After hearing the entire audio clip, the informant went to
the police station and lodged a report on 08.09.2022, on the basis of
which the aforesaid crime came to be registered. The police have
carried out investigation and on completion, filed charge sheet.
5. The learned Counsel appearing for the applicant would
submit that the contents of first information report even if taken to be
true on its face value, does not make out the charged offences. The
essential ingredients to constitute the offence of promoting enmity
between religious group and the offence of intentional outraging
religions feelings has not been made out and thus, it is a fit case for
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quashing the prosecution. It is the contention of the applicant that
even if the facts are presumed to be true, however, it is a private
conversation between two persons. As per the prosecution case, the
applicant did not made the audio clip viral, nor he uttered those things
in public or before a particular class of people. The audio clip was
about private conversation between two persons prior to 4 months.
The investigation paper never specifies as to who has made the audio
clip viral. It is not the case that the applicant has posted the audio clip
on whatsapp group with an intention to circulate the same amongst
the people. The essential ingredient to constitute an offence namely
- intentional act is totally missing. Moreover, the woman to whom
the applicant allegedly spoke the objectionable things did not made
any grievance and therefore, no offence is made out.
6. In resistance, we have heard the learned A.P.P. for State
and the learned Counsel appearing for non-applicant No.2. It is
their contention that if one goes through the script of the
conversation, it clearly suggests to prompt disharmony or feeling of
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enmity between a particular community. It is submitted that with a
deliberate and malicious intention of outraging the religious feelings
of a particular class, the applicant spoken the things to one lady, who
belongs to the said community. It is submitted that at this
preliminary stage, the material cannot be evaluated and thus, the
application for quashing is liable to be dismissed.
7. The law in this regard is well settled that at this
preliminary stage it is to be seen whether the first information report
and the material collected during the course of investigation is capable
enough to make out a the prima facie case to put the accused on trial.
Needless to say that at this juncture meticulous scanning of the
material or evaluation is not warranted. It reveals from the police
paper that most of the things are not in dispute. The applicant had a
telephonic talk with a lady namely Sultana prior to 4 months and
during said conversation he made some derogatory and outraging
remarks against a community to which the lady belongs. It is not the
prosecution case that the applicant himself has put the said audio clip
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on any whatsapp group/chat, or made it viral so as to communicate to
others.
8. The police have recorded the statement of the said lady
Sultana, who on the other hand denied that the applicant during
conversation made communal remarks which would spread
disharmony and feeling of enmity between the religious group. It is
her contention that she had a talk with the applicant, which she never
made viral. However, her daughter in law clandestinely got
transferred said audio clip to her own mobile, and in order to
pressurize, threatened to make it viral. The statement of daughter-in-
law namely Saba was also recorded. She stated that she was
suspecting that her mother-in-law [Sultana] was planning something
against her, therefore, she got transferred various mobile
conversations from the mobile of Sultana. She has transferred those
audio clips to her husband and sister-in-law. She has stated that she
was not aware whether those audio clips were inclusive of the
conversation between Sultana and the applicant, and thus, showed
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ignorance about making the objectionable audio clip viral.
9. The police have recorded the statements of Aayan
Sheikh, who has forwarded the audio clip on whatsapp to the
informant. He stated that he has received the said audio clip from one
Shabir Sheikh, which he merely forwarded to the applicant on his
demand. The police did not record statement of said Shabir Sheikh.
10. It emerges from the said material that the objectionable
talk was totally a private conversation in between two individuals i.e.
applicant and Sultana. Admittedly Sultana has no grievance about
the said conversation. It is not the case that the applicant has made
the conversation viral, nor Sultana did. Rather it reveals that for some
other purpose Saba has procured various audio clips of her mother-in-
law, which she transferred to her husband and some relatives. The
objectionable audio clip unknowingly got transferred by Saba without
knowledge to the contents. In above background, the matter is to be
looked - whether the applicant can be booked for the offence
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punishable under Section 153-A and 295-A of the Indian Penal Code.
11. In order to constitute an offence punishable under
Section 153-A of the Indian Penal Code, the accused must by means
of words or by sign or by visible representation promotes or attempts
to promote, disharmony or feeling of enmity in a particular
community. The relevant provisions reads as below.
"Section 153A. Promoting enmity between
different groups on ground of religion, race, place
of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.--
(1) Whoever--
(a) by words, either spoken or written, or by signs
or by visible representations or otherwise, promotes
or attempts to promote, on grounds of religion,
race, place of birth, residence, language, caste or
community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will
between different religious, racials, language or
regional groups or castes or communities, or
(b) .......
(c) .......
shall be punished with imprisonment which may
extend to three years, or with fine, or with both."
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12. Perusal of the police paper does not disclose that the
applicant intended to promote or even attempted to promote
disharmony or the feeling of enmity between religions. Apparently it
was a private talk between two individuals from which it can hardly be
gathered that the intention was to promote feeling of enmity in
between two groups.
13. Similarly to constitute an offence punishable under
Section 295-A of the Code, the essence is intention of the accused to
outrage the religious feelings of a particular class. The learned
Counsel appearing for the applicant would submit that to constitute
an offence under Section 295-A of the Code, deliberate and malicious
intent is an essential ingredient. In this regard he has relied on the
decision of Supreme Court in case of Mahendra Singh Dhoni .vrs.
Yerraguntla Shyamsundar and another - [2017] 7 SCC 760, wherein
it is observed that, insult to religion unwittingly or careless or without
any deliberate or malicious intention to outrage the religious feelings
of that class do not come within the purview of Section 295-A of the
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Code. Similarly, he relied on the decision of this Court in case of
Pramod Udebhan Shendre .vrs. The State of Maharashtra and another
- Criminal Application No.1077/2023 and one decided on
24.07.2024, wherein this Court has dealt in extenso the requirement
to constitute an offence punishable under Section 295-A of the Code.
In said case some whatsapp messages having objectionable material
were circulated on whatsapp group. In said context, this Court after
analyzing the facts observed that the whatsapp chat/messages of the
group are end to end encrypted, that means within the group. A third
person has no access to such messages. In absence of deliberate and
malicious intention of outraging the religious feeling, the offence
would not be complete.
14. Moreover, way back in the decision of Ramji Lal
Modi .vrs. State of U.P. - AIR 1957 SC 620, the Constitutional Bench
of the Supreme Court has observed that, Section 295-A does not
penalize any and every act of insult to or attempt to insult the religion
or the religious beliefs of a class of citizens but, it penalizes only those
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acts of insults to or those varieties of attempts to insult the religion or
the religious beliefs of a class of citizen, which are perpetrated with
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.
15. Notably the informant has not stated that either the
applicant intended to circulate the objectionable material or it has
been heard by the members of a particular class. Accidentally
informant met with one Ayan who has transmitted the audio clip to
informant, that too on his demand. Pertinent to note that the
informant did not come across the audio clip on any whatsapp group,
but, he himself requested Ayan to forward, on which he received the
audio clip. The statement of witnesses indicates that it was totally a
private conversation which was never meant to be made known to
others. Daughter-in-law of Sultana secretly obtained the audio clip
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and forwarded it to her relatives, in which the applicant has absolutely
no role. Taking over all view of the matter, it is evident that the
essential ingredients are missing i.e. the applicant has either promoted
or attempted to promote disharmony or intentionally/deliberately
uttered the words to hurt the religious feeling of a particular class. It is
also required to be noted that the conversation was never intended,
nor meant to make it public. Private talk between two individuals on
mobile may be of an objectionable nature, but, would not attract any
penal consequence unless it was intended to make it public or viral.
The person who deliberately made the private objectionable
conversation viral may attract the liability, but, in that regard there is
no investigation. The material does not disclose as to who has made
the conversation viral, nor the informant claims that it was made viral
by anyone.
16. Taking into consideration all these aspects, it is difficult
to hold that a prima facie case is made out against the applicant. The
parameters governing exercise of inherent powers of this Court under
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Section 482 of the Criminal Procedure Code are well defined in the
decision of Supreme Court in case of State of Haryana .vrs. Ch.
Bhajan Lal and others - AIR 1992 SC 604. The case in hand
squarely falls in category nos. 1 and 3 as laid down in the decision,
therefore, we find it appropriate to exercise our inherent powers to
prevent the abuse of process of Court. In view of this following order
is passed.
ORDER
(i) Criminal Application is allowed and disposed of.
(ii) The criminal case bearing R.C.C.No.1049/2022 pending
on the file of Judicial Magistrate First Class, Umred,
arising out of first information report bearing Crime
No.548/2022 registered with Umred Police Station,
District Nagpur for the offence punishable under
Sections 153-A and 295-A of the Indian Penal Code, is
hereby quashed and set aside.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 20/08/2024 14:48:07
