Bombay High Court

Prabhu Chawla vs The State Of Maharashtra And Anr on 10 January, 2025

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  2025:BHC-AS:1494
CHANDERSEN
SHIV

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CHANDERSEN SHIV H.C. SHIV                                                                905.wp2337.18.doc
Date: 2025.01.14
15:04:30 +0300
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION

                                        WRIT PETITION NO.2337 OF 2018

                 Prabhu Chawla
                 Age 72 years, Occupation Journalist
                 resident of E-16, Ansal Villas, Mehrauli,
                 New Delhi - 110 012                                          ... Petitioner
                        vs.
                 1. State of Maharashtra
                 Through Senior Inspector of Police,
                 N.M. Joshi Marg Police Station,
                 Mumbai                                                       ...
                 2. Atish Babaji Kadam
                 Age 38, resident of BDD Chawl No.20,
                 Room No.55, N. M. Joshi Marg,
                 Mumbai                                                       ... Respondents


                 Mr. Aabad Ponda, Senior Counsel with Ameet Naik, Abhishek Kale,
                 Shalvika Nachankar, Antara Kulkarni i/b Naik Naik and Co. for the
                 Petitioner.
                 Mr. Y. M. Nakhwa A.P.P. for the Respondent No.1-State.


                                                     CORAM : SHYAM C. CHANDAK, J.

                                  RESERVED ON : 10th DECEMBER, 2024
                               PRONOUNCED ON : 10th JANUARY, 2025
                 JUDGMENT :

. Present Petition under Article 227 of the Constitution of

India seeks recalling of the impugned Orders dated 1st February 2008,

passed by the 13th Court of learned Metropolitan Magistrate at Dadar,

H.C. SHIV 905.wp2337.18.doc

Mumbai in C.C.No.2900153/PW/2007, thereby summons has been

issued against the Petitioner for the alleged offence punishable under

Section 295A read with Section 109 of the Indian Penal Code (" I.P.C."

for short) and the Order dated 11th March 2018 passed by the same

Court thereby directing to issue a non-bailable warrant against the

Petitioner.

2) Heard Mr.Ponda, the learned Senior Counsel for the

Petitioner and Mr.Nakhwa, the learned A.P.P. for the Respondent

No.1-State.

3) The Record indicates that vide Order dated 3rd March

2021, the Petition was admitted and interim relief in terms of prayer

clause (c) was granted. Further, the learned A.P.P. waived notice for

and on behalf of Respondent No.1-State. Thereafter, Rule notice was

served upon Respondent No.2. However, none appeared for

Respondent No.2 when the Petition was taken up for hearing.

4) Brief facts giving rise to this Petition are that, on 15 th

October 2004, at about 10 a.m., near Bavla Masjid, N. M. Joshi Marg,

when the informant - Mr.Atish Babaji Kadam was reading a Marathi

daily newspaper 'Samrat', the informant found that an image of Lord

Buddha was printed on front page of the newspaper. There was

jewellery in the neck, ears and arms of Lord Buddha in the said

H.C. SHIV 905.wp2337.18.doc

image. Two women were standing in the image to the side of Lord

Buddha, one of whom had placed her right hand on the left shoulder

of Lord Buddha in the said image. Thereafter, the informant read the

column printed to the side of the said image and purchased a copy of

'India Today' weekly magazine in Hindi, which was referred to in the

said column. Further, the informant showed his friends the said

image of Lord Buddha in the newspaper and the magazine. On seeing

the ornaments on the person of Lord Buddha in the said image, they

all felt very sad. Thus, the aforesaid image outraged their religious

feelings. As a result, the informant filed a report with N.M. Joshi

Marg police station against the Petitioner, who had been editor of

'India Today' magazine, its distributor, and two women i.e.

Ms.Mumtaz and Ms.Pallavi, seen in the said image. In turn, police

registered the said report at F.I.R. bearing C.R.No.219 of 2004, under

Section 295 read with 34 of the I.P.C. During the investigation, the

police seized the newspaper and the magazine and recorded the

statements of witnesses. On completion of the investigation, the

police submitted a charge sheet before the 13th Court of learned

Metropolitan Magistrate, at Dadar, Mumbai against the Petitioner

and said two women, Ms.Mumtaz and Ms.Pallavi for the offence

punishable under Section 295A read with 109 of the I.P.C. However,

H.C. SHIV 905.wp2337.18.doc

according to the Petitioner he is innocent and there is no material to

constitute the alleged offence leveled against him. Hence, this

Petition.

5) Mr.Ponda, the learned Senior Counsel submitted that,

admittedly, the Petitioner has been charge-sheeted for the

commission of the alleged offence under Section 295A read with 109

of the I.P.C. As provided in Section 196 (1) (a) of the Code of Criminal

Procedure "No court shall take cognizance of offence under Section

295A of the I.P.C. except with previous sanction of the Central

Government or State Government". He submits that, in the present

case, no such prior sanction from either of the Governments was

obtained before filing the charge-sheet against the Petitioner.

Therefore, he submits that the impugned Order of issuance of

summons and non-bailable warrant are illegal and liable to be

quashed and set aside. Mr. Ponda urged that even otherwise, the

allegations made in the report and the material relied upon by the

prosecution are absolutely vague, scattered and general in nature.

Therefore, even if they are taken on face value and accepted in their

entirety, they would not prima facie constitute any offence or make

out a case against the Petitioner.


6)              In contrast, Mr. Nakhwa, the learned A.P.P. submits that





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admittedly Petitioner is Editor of the 'India Today' magazine. He

submits that, the subject image clearly shows that certain jewellery

items were put on the statue of Lord Buddha in the said image. Said

fact is sufficient to constitute the alleged offence punishable under

Section 295A read with Section 109 of the I.P.C., for which the

Petitioner and others have been challenged and prosecuted. As such,

according to the learned APP there is a prima facie case against the

Petitioner. He therefore urged to dismiss the Petition.

7) Considering the facts of the case and rival submissions, it

is necessary to have a look at Section 295A of I.P.C., which reads thus:

"Section 295A. 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."

8) On a plain reading of said Section 295A it is clear that, to

attract the penal liability under said Section 295A, the act complained

against must have been done by the accused with the deliberate and

malicious intention of outraging the religious feelings of any class of

H.C. SHIV 905.wp2337.18.doc

citizens of India, which either insults or attempts to insult the religion

or the religious beliefs. In the case in hand, the F.I.R. is silent about

the presence of said deliberate and malicious intention on the part of

the Petitioner.

9) Be that as it may, there is an Index at page no.12-I of the

Petition. Said Index pertains to the police report and the documents

submitted before the trial Court, on completion of the investigation in

this crime. The Index does not refer to any correspondence or letters

thereby requesting the Government to grant the sanction to file a

charge-sheet and prosecute the Petitioner for the alleged offence of

Section 295A read with 109 of the I.P.C. This fact sufficiently

indicates that, the Petitioner has been charged and prosecuted

without previous sanction of the Government. Mr.Nakhwa, the

learned APP, conceded this fact. However, the said shortcoming on

record was not considered by the learned Magistrate of the trial Court

before summoning the Petitioner for the said offence and proceeding

against the Petitioner. In the case of Manoj Rai and Others vs. State of

M.P.1, it is held that in the absence of sanction under Section 196 (1)

of Cr.P.C., proceedings for an offence of Section 295A of I.P.C. must

be quashed.

1. (1999) 1 SCC 728.

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10)             In view thereof, the impugned Order to issuing summons

and non-bailable warrant passed against the Petitioner in the

aforesaid case are not sustainable in law and same are liable to be

quashed and set aside. The Petition succeeds, thus. Hence, the

following Order :-

ORDER

(a) The impugned Order dated 1st February 2008, passed by

the 13th Court of learned Metropolitan Magistrate at

Dadar, Mumbai in C.C.No.2900153/PW/2007, thereby

issuing summons for the alleged offence punishable under

Section 295A read with Section 109 of the Indian Penal

Code ("I.P.C." for short) and the Order dated 11th March

2018 passed by the same Court thereby directing to issue a

non-bailable warrant against the Petitioner, are quashed

and set aside.