Chattisgarh High Court
Vishwadini Pandey vs State Of Chhattisgarh on 18 August, 2021
Page 1 of 17
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 228 of 2020
Order Reserved on : 12.07.2021
Order Delivered on : 18.08.2021
Vishwadini Pandey, W/o Kirti Pandey, Aged About 43 Years, R/o
Anand Vihar Colony, Mowa Raipur, District- Raipur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through Secretary, Department of
Home, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya
Raipur, District- Raipur (C.G.)
2. Superintendent of Police, Raipur, District- Raipur (C.G.)
3. Station House Officer, Civil Lines, Raipur, District- Raipur
(C.G.)
4. Shahid Siddqui, S/o Vali Mohammad Siddqui, Aged About 40
Years, R/o Hirapur, Raipur, District- Raipur (C.G.)
---- Respondents
For Petitioner : Mr. Sumit Singh, Advocate.
For State/Res. 1 to 3 : Mr. Devendra Pratap Singh, Dy. A.G.
For Respondent No. 4 : Mr. Ashutosh Mishra, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
CAV Order
1. The petitioner has filed this writ petition under Article 226 of
the Constitution of India challenging registration of FIR No.
0171 dated 15.04.2020 (Annexure P/3) registered against her
at Police Station - Civil Lines, Raipur (C.G.) for committing
offence punishable under Sections 153-A, 295-A, 505 (2) &
188 of I.P.C.
2. The brief facts as projected by the petitioner are that the
petitioner is a practicing lawyer at Raipur. Respondent No. 4
lodged an FIR against the petitioner on 15.04.2020 alleging
that the petitioner in her Facebook ID, posted objectionable
material on 4th, 5th & 7th April, 2020 because of which, religious
sentiments of complainant/ respondent No. 4 have been hurt.
Therefore, respondent No. 4 has got registered FIR No.
171/2020 against the petitioner for committing offence
punishable under Sections 153-A, 295-A, 505 (2) & 188 of
I.P.C.
3. Learned counsel for the petitioner would submit that the
petitioner had filed a written complaint on 11.05.2019 at Police
Station- Pandri, District- Raipur (C.G.) against one Nand
Kumar Baghel, who is father of present Hon'ble the Chief
Minister of the State alleging that Nand Kumar Baghel has
used derogatory remark against Lord Shri Ram and also
abused Lord Ganesha, therefore, FIR has been lodged by
respondent No. 4 against the petitioner with ulterior motive
adopting pressure tactics as counter blast to take vengeance
by the respondent. He would further submit that the petitioner
has not written the original post, she had simply shared the
post written by one Rudra Anish. He would further submit that
no abusive language has been used by the petitioner, which
hurts sentiments of any of the religious, hence, it is prayed
that the FIR registered against the petitioner may kindly be
quashed.
4. Learned State counsel has filed their return, in which, they
have contended that since the complaint discloses the prima
facie commission of cognizable offence by the petitioner, the
authorities are duty bound to register FIR against the
petitioner. During investigation, the police recorded statement
of complainant/ respondent No. 4 as well as the witnesses
namely Saiyyad Sidique Ali, Shahid Iqbal, Mohd. Sajid Khan &
Ashraf Khan. He would submit that the Police has written a
letter to Cyber Cell for providing information regarding
authenticity of the Facebook profile of the petitioner. The
Cyber Cell has contacted the Facebook company, who
informed that as per law of United States of America, the
document of Mutual Legal Assistance Treaty Request or letter
rogatory is necessary for providing the information, but the
same has not been provided to them by Facebook Company.
5. Learned State counsel would further submit that the petitioner
has not provided certificate under Section 65 (B) of the Indian
Evidence Act. The petitioner is not assisting in the
investigation, which is under progress and it is in primary
stage. Looking to the allegation made against the petitioner,
present is not a fit case, where extraordinary jurisdiction may
be exercised by this Court under Article 226 of the
Constitution of India. Hence, it is prayed that this writ petition
may kindly be dismissed.
6. Learned counsel for respondent No. 4 has also filed return, in
which, it has been stated that the petitioner has not only
deliberately made objectionable post, which hurts sentiments
of the communities at large. The petitioner has not only used
such material on her status, but she has tagged it with several
other persons as well, which amounts to promotion of such
illegal activity and it is constituting an offence under the
aforesaid Sections. Therefore, the offence alleged in the FIR
is made out against the petitioner. The FIR registered against
the petitioner is made out on the basis of complaint made by
respondent No. 4 and the investigation is under progress and
it is in primary stage, which cannot be quashed at this
juncture. Hence, it is prayed that this writ petition filed by the
petitioner may kindly be dismissed. The learned counsel for
respondent No. 4, in support of his arguments, relied upon the
judgment of Hon'ble the Supreme Court in Amish Devgan
Vs. Union of India & others1.
7. I have heard learned counsel for the parties, perused the
documents placed on record with utmost satisfaction.
8. Learned counsel for the petitioner would submit that from bare
perusal of the FIR, no offence under Sections 153-A, 295-A,
505 (2) & 188 of I.P.C. is made out against the petitioner. He
would further submit that during Covid-19 pandemic in the
month of March, 2020, there was rumor that spread of Covid
is due to conduct of Jamaat Tabligh. They are assembling and
1 (2021) 1 SCC 1
spreading infection and other harmful things. Hon'ble the
Supreme Court took cognizance of the same and gave
specific direction to Police with regard to take action on
account of assembling of Jamaat Tabligh, as such, Police
conducted raid in various locations like Maharashtra,
Chhattisgarh etc. It was published in various news channels,
media, newspapers and on the basis of publication of news,
the petitioner has shared the post of Rudra Anish and it was
not the original written post of the petitioner. The petitioner has
no intention to hurt any religious sentiment and she has just
shared the post which was already in the public domain. It
was not to hurt sentiment of any particular community. In
support of his contention, learned counsel for the petitioner
would rely upon the judgment of Hon'ble the Supreme Court
reported in (2019) 12 SCC 432, (2017) 7 SCC 760 & AIR
1957 SC 620. He also referred to the judgment rendered by
Hon'ble the Supreme Court in Kedar Nath Singh Vs. State of
Bihar2, Fiona Shrikhande Vs. State of Maharashtra &
another3, Ashok Chaturvedi & others Vs. Shitul H.
Chanchani & another4 & State of Haryana & others Vs.
Bhajan Lal Others5. He also placed reliance on the judgment
passed by Coordinate Bench of this Court in Dr. Apurva
Ghiya Vs. State of Chhattisgarh6 & Dr. Sambit Patra Vs.
State of Chhattisgarh & others7.
9. Before adverting to the facts of the case it is necessary to
extract contents of the FIR, which is as under:-
"मम हहीररापपुर ररायपपुर करा रहनने वरालरा हह हूँ । ररायपपुर ककोरर मम वकरालत करतरा
हह हूँ । सपुशही ववश्वदहीनही पराण्डने कने दराररा अपनने फनेसबपुक आई.डही.
Facebook IDhttps//www.Facebook.com/viswadini.
pandey कने मराध्यम सने फनेसबपुक पर वदनराहूँक -04 अपप्रैल, 05 अपप्रैल
एवव 07 अपप्रैल 2020 कको आपतत्तिजनक पकोस्र पकरावशित वकयरा गयरा
2 AIR 1962 SC 955
3 (2013) 14 SCC 44
4 (1998) 7 SCC 698
5 1992 Supp. (1) SCC 35
6 WP (Cr.) No. 310 of 2020 (decided on 07.10.2020)
7 WP (Cr.) No. 251 of 2020 (decided on 12.04.2021)
हप्रै। तजसकने दराररा दको धरावमर क वगर व कने बहीच एवव समराज कने वववभिन
समपुदराययों कने बहीच आपसही वप्रैमनस्य, दनेष, घघृणरा फप्रैलरानरा हप्रै । उनकने इन
पकोस्रयों सने मनेरही धरावमर क भिरावनराएहूँ आहत हह ई हप्रै एवव मम व्यतथित तथिरा कपुब्ध
हह आ हह हूँ । शिरासन दराररा जरारही ककोववड-19 कने आदनेशियों करा अवहनेलनरा
करतने हह यने उनकने दराररा झझूठने तथ्य एवव अफवराहयों कको पसराररत वकयरा गयरा
हप्रै । इस सवबवध मम मम तलतखित आवनेदन पनेशि कर रहरा हह हूँ । करायर वराहही कक
जरायने । आवनेदन पत्र एवव उसकने सराथि सवलग्न सपत्रयों कने अवलकोकन सने
सपुशही ववश्वदहीनही पराण्डने कने दराररा अपनने फनेसबपुक एकराउव र सने वकयने गयने
पकोस्रयों कने आधरार पर पथिम दृष्टयरा धराररा 153(क), 295(क),
502(2), 188 भिरादवव करा अपरराध घवरत करनरा परायने जरानने सने
अपरराध पवजहीबद्घ कर वववनेचनरा मम तलयरा गयरा । नकल आवनेदन जप्रैल हप्रै।
पवत शहीमरान थिरानरा पभिरारही महकोदय, तसववल लराईन ररायपपुर, छ.ग. ववषय
फनेसबपुक यझूजर ववश्वदनही पराण्डने (फनेसबपुक आई.डही. Facebook ID
https//www.Facebook.com/ viswadini.pandey) कने दराररा
फनेसबपुक पर आपतत्तिजनक पकोस्र पकरावशित वकयने जरानने कने आधरार पर
उनकने ववरूद्घ पथिम सझूचनरा पत्र दजर कर वप्रैधरावनक करायर वराहही करनने
बराबतत् । महकोदय, आवनेदक/वशिकरायतकतरार दराररा वनम्नरानपुसरार वशिकरायत
पस्तपुत हप्रैह- 1. यह वक ववश्वदनही पराण्डने कने दराररा फनेसबपुक मम
वनम्नरानपुसरार आपतत्तिजनक पकोस्र पकरावशित कक गई हप्रै वदनराहूँक -
04/04/2020 कको सकोवचयने जररा यने नसर व कने आगने नवगने घझूम रहने हम, वने
इस्लराम कने पचरारक धमर गपुरू हप्रै । जहराहूँ रहनपुमरा ऐसने हप्रै तको आवराम कप्रैसही
हकोगही । वदनराहूँक-05/04/2020 कको तब्लहीगहीययों कको अपनही बनेरही
ब्यराहनने और उनकने थिझूक, गपु सराफ करनने कको आतपुर करावगही वदनराहूँक-
07/04/2020 कको हराल हही मम दनेखिही गई जमरातही थिझूकने, हगने यरा
सवक्रमण फप्रैलराए इनकको गलने लगराईयने , इनकने तखिलराफ बकोलनने पर हको रहही
हप्रै वगरफ्तरारही । ऐसने पकोस्र समराज धमर ववशिनेष कने ववरूद्घ ऐसही आपरात
सस्थिवत दनेशि एवव पदनेशि मम सवपदरावयक अफवराह एवव ककोववड-19 कने
सवबवध मम झझूठने अफवराहयों कको पसराररत/पकोस्र वकयरा गयरा हप्रै । तजसकक
पवत इस वशिकरायत पत्र कने सराथि सवलग्न हप्रै । 2. यह वक, उक्त पकोस्र सने
स्पष्ट हप्रै वक उसने करनने वरालने करा मकसद समराज कने वववभिन समपुदराययों कने
बहीच आपसही वप्रैमनस्य, दनेष, घघृणरा फप्रैलरानरा हप्रै सराथि हही उक्त कथिन कको
व्यवस्थिरा पर पवतकपुल पभिराव डरालनने वरालरा तथिरा लकोक पशिरावतही मम ववघ्न
डरालनने वरालरा हप्रै जको दवडनहीय अपररातधकघृत्य हप्रै । 3. यह वक, ववश्वदनही
पराण्डने नने अपनने Facebook IDhttps//www.Facebook.com/
viswadini.pandey पर समराज धमर ववशिनेष कने ववरूद्घ ऐसही आपरात
सस्थिवत दनेशि एवव पदनेशि मम सवपदरावयक अफवराह एवव ककोववड-19 कने
सवबवध मम झझूठ अफवराहयों कको पसराररत /पकोस्र वकयरा गयरा हप्रै । जको वक
अपररातधक कघृत्य हप्रै । 4. यह वक, उक्त व्यवक्त दराररा वकसही धमर ववशिनेष व
उसकने मराननने वरालने लकोगयों कको ववशिनेषकर ररागरर कर उसकने तखिलराफ
अपशिब्द और गलत बरातने अपनने फनेसबपुक एकराउव र सने पसराररत कक जरा
रहही हप्रै तजससने समराज मम दको धमर व कने बहीच वप्रै म नस्तरा उत्पन हकोन
करा खितररा बन गयरा हप्रै और आपदरा कने इस ददौर मम करानझून
व्यवस्थिरा कको भिही आघरात करा खितररा उत्पन हको गयरा हप्रै । 5. यह
वक, उक्त व्यवक्त दराररा जको पकोस्र कक गई हप्रै उससने मनेरही धरावमर क भिरावनराएहूँ
आहत हह ई हप्रै तजससने मम व्यतथित एवव कपुब्ध हह हूँ । उक्त व्यवक्त दराररा उक्त
पकोस्र जरानबझूझकर मनेरने धरावमर क ववश्वरासयों कने पवत अपमरान कराररत करनने
कने उदनेश्य सने कक गई हप्रै । अतह महकोदय सने न्यरायवहत मम वनवनेदन हप्रै वक,
उपरकोक्त अतरातराई दराररा कक गई आपतत्तिजनक पकोस्र सने मनेरही धरावमर क
भिरावनराएहूँ आहत वकयने जरानने सने उक्त फनेसबपुक यझूजर कने ववरूद्घ ररपकोरर
दजर कर वप्रैधरावनक करायर वराहही वकयने जरानने करा कष्ट करम ।"
10. The FIR has been registered against the petitioner for
committing offence punishable under Sections 153-A, 295-A,
505 (2) & 188 of I.P.C. The aforesaid Sections are extracted
below:-
"[153A. Promoting enmity between different
groups on grounds 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, racial,
language or regional groups or castes or
communities, or
(b) commits any act which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquillity, 2[or] 2[(c)
organizes any exercise, movement, drill or other
similar activity intending that the participants in
such activity shall use or be trained to use
criminal force or violence or knowing it to be likely
that the participants in such activity will use or be
trained to use criminal force or violence, or
participates in such activity intending to use or be
trained to use criminal force or violence or
knowing it to be likely that the participants in such
activity will use or be trained to use criminal force
or violence, against any religious, racial, language
or regional group or caste or community and such
activity for any reason whatsoever causes or is
likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious,
racial, language or regional group or caste or
community,] shall be punished with imprisonment
which may extend to three years, or with fine, or
with both.
Offence committed in place of worship, etc.--
(2) Whoever commits an offence specified in sub-
section (1) in any place of worship or in any
assembly engaged in the performance of religious
worship or religious ceremonies, shall be
punished with imprisonment which may extend to
five years and shall also be liable to fine.]
[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
4[three years], or with fine, or with both.]
188. Disobedience to order duly promulgated
by public servant.--Whoever, knowing that, by
an order promulgated by a public servant lawfully
empowered to promulgate such order, he is
directed to abstain from a certain act, or to take
certain order with certain property in his
possession or under his management, disobeys
such direction,
shall, if such disobedience causes or tends to
cause obstruction, annoyance or injury, or risk of
obstruction, annoyance or injury, to any person
lawfully employed, be punished with simple
imprisonment for a term which may extend to one
month or with fine which may extend to two
hundred rupees, or with both;
and if such disobedience causes or trends to
cause danger to human life, health or safety, or
causes or tends to cause a riot or affray, shall be
punished with imprisonment of either description
for a term which may extend to six months, or
with fine which may extend to one thousand
rupees, or with both.
Explanation.--It is not necessary that the offender
should intend to produce harm, or contemplate
his disobedience as likely to produce harm. It is
sufficient that he knows of the order which he
disobeys, and that his disobedience produces, or
is likely to produce, harm."
11. To establish the offence under Sections 153-A of I.P.C. the
contents of the FIR should, prima facie, reflect that the
offender should intent to promote feelings of enmity or hatred
between different class of people and the intention to cause
this order or incite the people to commit violence, is the
necessary ingredients of offence under Section 153-A of I.P.C.
and the contents of the FIR should, prima facie, prove the
existence of mensrea on the part of the accused Similarly for
prima facie establishing the offence, the promotion of feelings
of enmity, hatred or ill-will "between different" religious, racial
linguistic or regional groups or castes or communities should
be done. It is necessary that atleast two such groups or
communities should be involved. From the perusal of the
provisions of Sections 153-A & 505 (2) of I.P.C., both the
Sections have common features and merely inciting the
feeling of one community or group without any reference to
any other community or group cannot attract either of two
Sections. The contents of the FIR is silent on this count.
12. Hon'ble the Supreme Court in Manzar Sayeed Khan Vs.
State of Maharashtra & another8, examined the provisions of
offence alleged to have been committed under Sections 153-A
& 505 (2) of I.P.C. with regard to writing of books by the
petitioner. Hon'ble the Supreme Court after elaborate
discussion with regard to the provision of Sections 153-A &
505 (2) of I.P.C. has held as under:-
"15. We have given our thoughtful consideration
to the respective contentions of the learned
counsel for the parties. The question to be
decided now is whether the paragraph
complained of would attract the penal
consequences envisaged in Section 153A of IPC.
Section 153A of IPC was amended by the
8 (2007) 5 SCC 1
Criminal Law (Amendment) Act, 1969 (Act 35 of
1969). It consists of three clauses of which
clauses (a) and (b) alone are material for the case
on hand, which read as under:
"153A. Promoting enmity between different
groups on grounds 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, racial,
language or regional groups or castes or
communities, or
(b) commits any act which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquility, or
(c) * * *
shall be punished with imprisonment which may
extend to three years, or with fine, or with both."
16. Section 153-A of IPC, as extracted
hereinabove, covers a case where a person by
words, either spoken or written, or by signs or by
visible representations or otherwise, promotes or
attempts to promote, disharmony or feelings of
enmity, hatred or ill-will between different
religious, racial, language or regional groups or
castes or communities or acts prejudicial to the
maintenance of harmony or is likely to disturb the
public tranquility. The gist of the offence is the
intention to promote feelings of enmity or hatred
between different classes of people. The intention
to cause disorder or incite the people to violence
is the sine qua non of the offence under Section
153A of IPC and the prosecution has to prove
prima facie the existence of mens rea on the part
of the accused. The intention has to be judged
primarily by the language of the book and the
circumstances in which the book was written and
published. The matter complained of within the
ambit of Section 153A must be read as a whole.
One cannot rely on strongly worded and isolated
passages for proving the charge nor indeed can
one take a sentence here and a sentence there
and connect them by a meticulous process of
inferential reasoning.
17. In Ramesh Chotalal Dalal v. Union of India &
Others [AIR 1988 SC 775], this Court held that TV
serial "Tamas" did not depict communal tension
and violence and the provisions of Section 153A
of IPC would not apply to it. It was also not
prejudicial to the national integration falling under
Section 153B of IPC. Approving the observations
of Vivian Bose, J. in Bhagvati Charan Shukla v.
Provincial Government [AIR 1947 Nagpur 1], the
Court observed that
"the effect of the words must be judged from the
standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and
vacillating minds, nor of those who scent danger
in every hostile point of view. It is the standard of
ordinary reasonable man or as they say in
English Law, "the man on the top of a clapham
omnibus".
18. Again in Bilal Ahmed Kaloo v. State of A.P.
[(1997) 7 SCC 431], it is held that the common
feature in both the Sections, viz., Sections 153A
and 505 (2), being promotion of feeling of enmity,
hatred or ill-will "between different" religious or
racial or linguistic or regional groups or castes
and communities, it is necessary that at least two
such groups or communities should be involved.
Further, it was observed that merely inciting the
feeling of one community or group without any
reference to any other community or group
cannot attract either of the two Sections.
19. Prof. James W. Laine, the author of the book,
has exercised his reason and his own analytical
skills before choosing any literature which he
intends to include in his book. Even if the
appellant-Manzer Sayeed Khan, a constituted
Attorney of the Oxford University Press, India and
the appellant-Vinod Hansraj Goyal, Proprietor of
the Rashtriya Printing Press, Shahdara, Delhi, or
the persons whose names are mentioned in the
acknowledgement by the author, have provided
information for the purpose, including the said
paragraph in the book, it is important and worth
observing that the author has mentioned that
BORI, Pune has been his scholarly home in India
and many people therein helped him for collecting
the material. The author has given the names of
many persons, who had helped him in one way or
the other and enlightened him about the history of
the historical hero 'Shivaji'. The author has also
mentioned in the book about the International
Conference on Maharashtra, etc., which has
given him a lot of material for inclusion in his
book. As it appears from the records, BORI, Pune
was established almost 90 years back and it has
a great tradition of scholarly work. It is very
improbable to imagine that any serious and
intense scholar will attempt to malign the image of
this glorious Institute. The author thought his work
to be worth of dedication to his mother Marie
Whitwell Laine, which was purely a scholarly
pursuit and without any intention or motive to
involve himself in trouble. It is the sole
responsibility of the State to make positive efforts
to resolve every possible conflict between any of
the communities, castes or religions within the
State and try every possible way to establish
peace and harmony within the State under every
and all circumstances. "
13. Section 295-A of I.P.C. does not provide everything to be
penalized. It penalized 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 unwillingly or
carelessly or without any deliberate of malicious intention to
outrage the religious feelings of that class do not come within
this Section. Hon'ble the Supreme Court in Mahendra Singh
Dhoni Vs. Yerraguntla Shyamsundar & another 9, held as
under:-
"6. On a perusal of the aforesaid passages, it is
clear as crystal that Section 295-A 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 a class
of citizens. It penalises 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
9 (2017) 7 SCC 760
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."
14. From bare perusal of contents of the post, which according to
the petitioner, is shared by her written by one of Rudra Anish,
hence it was not the original written post by the petitioner. The
post is as under:-
"lksfp;s tjk ;s ulksZa ds vkxs uaxs ?kqe jgs gS] os bLyke ds
izpkjd /keZ xq: gSA tgak jguwek ,sls gS rks vkoke dSls gksxh"
The post of the petitioner dated 05.04.2020 is extracted
below:-
"rcfyfx;ksa dks viuh csVh C;kgus vkSj muds Fkwd] xq lkQ djus
dks vkrqj dakxh"
Further, post dated 07.04.2020 off the petitioner is extracted
below:-
"gky gh esa ns[kh xbZ tekrh Fkwdsa] gxs ;k laØe.k QSyk;s] buds
f[kykQ cksyus ij gks jgh gS fxj¶rkjh"
15. From perusal of the posts and contents of the Sections 153-A,
505(2), it is quite clear that no comparison between two
communities or groups, has been done by the petitioner with
intent to promotion of feelings of enmity, hatred or ill will
between different religious has been committed by the
petitioner, therefore, offence, prima facie, under Section 153-
A, 505 (2) of I.P.C. has not been made out against the
petitioner.
16. The Coordinate Bench of this Court after considering the law
laid down by Hon'ble the Supreme Court in Ramji Lal Modi
Vs. State of U.P.10, Mahendra Singh Dhoni Vs. Yerraguntla
Shyamsundar & another11 and Priya Prakash Varrier &
others Vs. State of Telangana & another 12, decided the
issues with regard to registration of FIR for committing an
offence under Section 295-A of I.P.C.
10 AIR 1957 SC 620
11 (2017) 7 SCC 760
12 (2019) 12 SCC 432
17. From perusal for the FIR, it is crystal clear that the said post is
already in public domain and lot of news channels were also
broadcasting the same. The petitioner has filed rejoinder to
the petition wherein she has specifically contended that as
soon as she received notice from Police Station Incharge-
Civil Lines Raipur, she had submitted reply on 08.05.2020
wherein she clearly mentioned that the said post has been
written on the basis of information available in various news
channels and she has no criminal intention to hurt the
religious sentiment of any community. Therefore, it cannot be
held that the petitioner had intention to commit an offence
under Section 295-A of the I.P.C.
18. Learned counsel for the petitioner would submit that the
offence under Section 188 of I.P.C. registered against the
petitioner is contrary to the procedure as defined under
Section 195 of the Cr.P.C., therefore, the offence under
Section 188 is, prima facie, illegal. He would further refer to
the judgment passed by Coordinate Bench of this Court in
case of Dr. Apurva Ghiya Vs. State of Chhattisgarh &
others13, which has held as under:-
"14. A careful perusal of Section 195 (1) of the
Cr.P.C. would show that the general rule is that
any person having knowledge may set the law in
motion by making a complaint, even though he is
not the person interested in or assisted by the
offence to the general rule. Section 195 of the
Code provides an exception and forbids
cognizance having been taken of the offence
referred to therein except on the complaint in
writing by the court or by some other court to
which such court is subordinate. [See Lalji
Haridas Vs. The State of Maharashtra & others
(AIR 1964 SC 1154)]"
19. On the other hand, learned counsel for respondent No. 4
would submit that the FIR has rightly been registered against
the petitioner and he would rely upon the judgment of Hon'ble
the Supreme Court in Amish Devgan (Supra), in which, it has
been held as under:-
13 WP (Cr.) No. 310 of 2020 decided on 07.10.2020
"99. Section 295-A and clause (2) of Section 505
of the Penal Code reads as under:
"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.
* * *
505. Statements conducing to public
mischief.-- * * * (2) Statements creating or
promoting enmity, hatred or ill-will between
classes.-- Whoever makes, publishes or
circulates any statement or report containing
rumour or alarming news with intent to create or
promote, or which is likely to create or promote,
on grounds of religion, race, place of birth,
residence, language, caste or community or any
other ground whatsoever, feelings of enmity,
hatred or ill-will between different religious, racial,
language or regional groups or castes or
communities, shall be punished with
imprisonment which may extend to three years,
or with fine, or with both."
100. The two provisions have been interpreted
earlier in a number of cases including Ramji Lal
Modi AIR 1957 SC 620, Kedar Nath AIR 1962
SC 955, Bilal Ahmed Kaloo (1997) 7 SCC 431. It
could be correct to say that Section 295A of the
Penal Code encapsulates of all three elements,
namely, it refers to the content-based element
when it refers to words either spoken or written,
or by signs or visible representation or otherwise.
However, it does not on the basis of content
alone makes a person guilty of the offence. The
first portion refers to deliberate and malicious
intent on the part of the maker to outrage
religious feeling of any class of citizens of India.
The last portion of Section 295A refers to the
harm-based element, that is, insult or attempt to
insult religions or religious belief of that class.
Similarly, sub- section (2) to Section 505 refers to
a person making publishing or circulating any
statement or report containing rumour or
alarming news. Thereafter, it refers to the intent
of the person which should be to create or
promote and then refers to the harm-based
element, that is, likely to create or promote on the
ground of religion, race, place of birth, residence,
language, cast, etc., feeling of enmity, hatred or
ill-will between different religions, racial language,
religious groups or castes or communities, etc.
101. In Bilal Ahmad Kaloo, this Court had drawn
a distinction between sub-section (2) to Section
505 and clause (a) to Section 153A of the Penal
Code observing that publication is not necessary
in the latter while it is sine qua non under clause
(2) of Section 505. Clause (2) of Section 505 of
the Penal Code cannot be interpreted
disjunctively and the words 'whosoever makes,
publishes or circulates' are supplemented to each
other. The intention of the legislature in providing
two different sections of the same subject vide
single amending act would show that they cover
two different fields of same colour.
102. Clauses (a) and (b) to sub-section (1) to
Section 153A of the Penal Code use the words
'promotes' and 'likely' respectively. Similarly,
Section 295-A uses the word 'attempts' and sub-
section (2) to Section 505 uses the words 'create
or promote'. Word 'likely' as explained above, in
our opinion, convey the meaning, that the chance
of the event occurring should be real and not
fanciful or remote (Tillmanns Butcheries Pty Ltd.
v. Australasian Meat Industry Employees'
Union115). The standard of 'not improbable' is
too weak and cannot be applied as it would
infringe upon and fall foul of reasonable
restriction and the test of proportionality. This is
the mandate flowing from the catena of
judgments of the Constitutional Benches which
we have referred to earlier and also the decision
in Shreya Singhal drawing distinction between
advocacy, discussion and incitement and that
only the latter, i.e. the incitement, is punishable
whereas the former two would fall within the
domain of freedom to express and convey one's
thoughts and ideas."
20. The judgment cited by respondent No. 4 would also indicate
that for falling any words within the purview of offence under
Section 153-A, 295-A & 505(2) of I.P.C., the words spoken or
written, if incite other community than only it is punishable and
if the speaker of the words does not actively incite the descent
into public disorder and is merely pointed out insulting person
or group is behaving in a particular manner, which may not
amount to promotion and does not fall within the ambit of
offence. From the above discussion, considering the law on
this subject and considering the facts of the case that the
petitioner has shared the post of other person, even, contents
of the FIR does not, prima facie, establish the alleged
offences mentioned in the FIR, therefore, the FIR is liable to
be quashed.
21. Hon'ble the Supreme in State of Haryana & others Vs.
Bhajan Lal & others14, has held as under:-
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under
section 482 of the code which we have extracted
and reproduced above, we give the following
categories of cases by way of illustration wherein
such power could be exercised either to prevent
abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected
in support of the same do not disclose the
commission of any offence and make out a case
against the accused.
14 1992 Supp. (1) SCC 335
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
22. From the above discussion and the aforesaid law laid down by
Hon'ble the Supreme Court in Bhajan Lal (Supra), contents
of the FIR fall within ambit of Clause (3) where the
uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose
the commission of any offence and make out a case against
the accused.
23. In view of the above, the FIR registered against the petitioner
is liable to be and is hereby quashed.
24. Accordingly, the instant writ petition is allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
