Karnataka High Court
Precilla D'Souza vs State Of Karnataka on 24 May, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
WRIT PETITION NO.852/2021 (GM-RES)
BETWEEN:
1. PRECILLA D'SOUZA,
AGED ABOUT 55 YEARS,
D.NO.13/174, KATAPUNI HOUSE,
KODANGE, B.C.ROAD, B.MOODA,
BANTWAL, JODUMARGA,
MANGALURU - 574219,
DAKSHINA KARNATAKA.
2. SAMSON JOHN,
AGED ABOUT 50 YEARS,
D.NO.2-229/5,
KADESH HOUSE, SONALIKE,
NEAR NAGABANA JALLIGUDDE BAJAL,
MANGALURU-575 007.
DAKSHINA KARNATAKA. ... PETITIONERS
(BY SRI MOHAN RAJ DORAISWAMY A., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
THROUGH BANTWAL TOWN PS,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560001.
2. MADHURA A,
AGED ABOUT 35 YEARS,
MATRUCHAYA HOUSE,
2
BEYOND B.C. ROAD BUS STAND,
B. MOODA GREAMA, JODUMARGA POST,
MANGALURU-574219,
DAKSHINA KARNATAKA. ... RESPONDENTS
(BY SRI H.R. SHWORI, HCGP FOR R-1;
R-2 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF
CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED
08.06.2020 TAKING COGNIZANCE VIDE ANNEXURE-A PASSED
BY THE LD.ACJ AND JMFC, BANTWAL, DK, IN CC No.813/2020
AND SET ASIDE THE ENTIRE PROCEEDINGS IN
C.C.NO.813/2020 AGAINST THE PETITIONERS WHO ARE
ACCUSED No.1 AND ACCUSED No.2 IN FIR No.209/2016 FOR
THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 298
R/W SECTION 34 OF THE IPC PENDING ON THE FILE OF THE
LD.ACJ AND JMFC BANTWAL, D.K. AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 15.04.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed under Articles 226 and 227 of the
Constitution of India read with Section 482 of Cr.P.C, praying
this Court to quash the impugned order dated 08.06.2020 taking
cognizance vide Annexure-A passed by the learned ACJ and
JMFC, Bantwal, D.K. in C.C.No.813/2020 and set aside the entire
proceedings in C.C.No.813/2020 against the petitioners, who are
accused Nos.1 and 2 in FIR No.209/2016 for the offences
punishable under Section 298 read with Section 34 of IPC and
consequently to quash the FIR and grant such other relief as
deemed fit in the circumstances of the case.
2. The factual matrix of the case is that the police have
registered the case against the petitioners based on the
compliant of one Smt. Madhura vide Annexure-B wherein
allegations are made against the petitioners that they came to
her residence and told that they came to give information about
the website. In the beginning they told that they came to
educate the children through videos and there were messages of
Bible. They told that the Society is not in order and they have to
do something for the future and gave the pamphlet. In the said
pamphlet there was some information with regard to the
website. The complainant enquired that there is no information
about Quran and Bhagavadgita and they told that only Bible can
tell the future and no other religious scripts give any information
and tsunami is coming in the future. The Government can give
only information and Yesu Christa can give protection if he is
believed and if they believe they get all type of peace of mind
and no other religion can provide the same. Hence, the
complainant questioned them whether they have come for
propagating the religious belief and whether they came for
conversion and immediately they left the place. Based on the
complaint, the police have registered the case against the
petitioners for the offences punishable under Section 295A read
with Section 34 of IPC in Crime No.209/2016. Thereafter, the
police have investigated the matter and filed the charge-sheet
and while filing the charge-sheet they invoked the offence under
Section 298 read with Section 34 of IPC. The learned Magistrate
after filing of the charge-sheet, vide his order dated 08.06.2020
took the cognizance. Hence, the present petition is filed before
this Court.
3. The learned counsel for the petitioners would
vehemently contend that the allegations made in the charge-
sheet does not attract the ingredients of the offence punishable
under Section 298 of IPC. The learned counsel would submit
that the cognizance was taken after 3½ years and there was an
inordinate delay in filing the charge-sheet. The learned
Magistrate has not applied his mind while taking the cognizance
and it is a clear case of non-application of mind. The filing of the
case against the petitioners herein is violative of Articles 14, 21
and 25 of the Constitution of India.
4. The learned counsel for the petitioners in support of
his arguments relied upon the judgment of the Gauhati High
Court in the case of K. VIKHEHO SEMA v. STATE OF
NAGALAND reported in 2007 Cri.L.J. 4266, wherein it is held
that under Section 468(2)(c) of Cr.P.C., the Court can take
cognizance of an offence punishable with imprisonment for a
term not exceeding three years, if the criminal action is set in
motion within a period of three years. The learned counsel
brought to the notice of this Court paragraph Nos.12 and 13 of
the judgment. In paragraph No.12 it is held that the object of
the Criminal Procedure Code in putting a bar of limitation on
prosecutions was clearly to prevent the parties from filing cases
after a long time, as a result of which material evidence may
disappear and also to prevent abuse of the process of the Court
by filing vexatious and belated prosecutions long after the date
of the offence. The object which the statutes seek to subserve is
clearly in consonance with the concept of fairness of trial as
enshrined in Article 21 of the Constitution of India.
5. The learned counsel also relied upon the unreported
decision of this Court passed in W.P.No.102268/2015 dated
10.08.2015, wherein this Court in paragraph No.21 of the
judgment discussed that if somebody wants to
practice/propagate a particular religion, he cannot be attacked
by persons belonging to any other denomination or religion of
faith. He is entitled to every possible protection at the hands of
the police. The police cannot abdicate their responsibility of
protecting the individuals, who are exercising the rights
guaranteed under Article 25 of the Constitution of India.
Further, the protection guaranteed under Article 25 is not
confined to matters of doctrine, but extends to acts done in
exercise of the right to profess, practice and propagate religion
freely.
6. The learned counsel also relied upon the judgment of
the Delhi High Court in the case of VINOD KUMAR JAM v.
REGISTRAR OF COMPANIES reported in 1985 RLR 603,
wherein in paragraph No.6 discussed with regard to Section 468,
469 and 473 of Cr.P.C. In paragraph No.15 it is held that the
Magistrate must apply his judicial mind to the question of
condoning the delay before taking cognizance of the offence and
he cannot, after taking the cognizance, rectify the illegality by
passing an order under Section 473 of Cr.P.C. so as to operate
retrospectively.
7. The learned counsel also relied upon the Bombay
High Court judgment in the case of KHALID AKHTAR ABDUL
LATIF AHEMI v. THE STATE OF MAHARASHTRA passed in
Criminal Application No.1665/2009 dated 30.06.2010 wherein
exercising the power under Section 482 of Cr.P.C., the Bombay
High Court discussed Sections 468, 469, 470 and 473 of Cr.P.C.
and held that the Court is duty bound on the presentation of the
charge-sheet to consider the question of limitation and to see as
to whether it is competent to take cognizance and whether the
limitation has expired or not.
8. The learned counsel also relied upon the Delhi High
Court judgment in the case of SAREGAMA INDIA LTD. v.
STATE NCT OF DELHI passed in Crl.M.C.No.149/2007 delivered
on 27.01.2014, wherein the Delhi High Court discussed Section
468 of Cr.P.C. regarding taking of cognizance after lapse of
period of limitation and also discussed Section 473 of Cr.P.C.
which extends the period of limitation.
9. The learned counsel also relied upon the Apex Court
judgment in the case of STATE OF HIMACHAL PRADESH v.
TARA DUTT AND ANOTHER passed in Appeal (Crl.)
No.1224/1999 delivered on 19.11.1999 wherein the Apex Court
discussed Sections 468 and 473 of Cr.P.C. and observed that the
discretion conferred on the Court has to be exercised judicially
and on well recognized principles. While exercising the
discretion, the same must be by a speaking order, indicating the
satisfaction of the Court that the delay was satisfactorily
explained and condonation of the same was in the interest of
justice.
10. The learned counsel also relied upon the Allahabad
High Court judgment in the case of KAMLA KANT SINGH v.
CHAIRMAN/MANAGING DIRECTOR, BENNETTA COLMAN
AND COMPANY LTD. AND OTHERS passed in Criminal
Rev.No.667/1985 dated 27.07.1987, wherein it is discussed with
regard to Section 298 of IPC. Under Section 298 of IPC what
has been made punishable, is uttering words etc. with deliberate
intention to wound religious feelings. What is to be marked is
that even to wound the religious feelings is not punishable
unless it is with deliberate intention. Deliberate intention means
premeditated intention with sole object to wound the religious
feelings. It is better to have the object in enacting Section 298
of IPC. The authors or the framers of the Code say that a warm
expression dropped in the heat of controversy, or an argument
urged by any person, not for the purpose of insulting and
annoying the professors of a different creed, but in good faith for
the purpose of vindicating his own, will not fall under the
definition contained in this clause.
11. The learned counsel also relied upon the judgment of
the Apex Court in the case of KRISHNA LAL CHAWLA AND
OTHERS v. STATE OF U.P. AND ANOTHER passed in Criminal
Appeal No.283/2021 delivered on 08.03.2021, wherein the Apex
Court referring to paragraph No.28 of the judgment in the case
of Pepsi Foods Ltd. v. Special Judicial Magistrate held that the
power to issue a summoning order is a matter of grave
importance, and that the Magistrate must only allow criminal law
to take its course after satisfying himself that there is a real case
to be made. The learned counsel also brought to the notice of
this Court paragraph No.18 of the judgment wherein the Apex
Court has observed that the Trial Courts have the power to not
merely decide on acquittal or conviction of the accused person
after the trial, but also the duty to nip frivolous litigations in the
bud even before they reach the stage of trial by discharging the
accused in fit cases. This would not only save judicial time that
comes at the cost of public money, but would also protect the
right to liberty that every person is entitled to under Article 21 of
the Constitution.
12. The learned counsel referring the above judgments
would submit that the proceedings initiated against the
petitioners is liable to be quashed on the ground of limitation
and also on merits. The learned Magistrate has not applied his
judicious mind while taking the cognizance.
13. Per contra, the learned High Court Government
Pleader appearing for respondent No.1 - State would contend
that the Court has to take note of the date of the complaint and
not filing of the charge-sheet. The incident was taken place on
06.12.2016 and the charge-sheet was filed on 08.06.2020. The
learned counsel would contend that no application is filed under
Section 473 of Cr.P.C. to condone the delay. The learned
counsel would contend that the Constitutional Bench judgment of
the Apex Court in the case of SARAH MATHEW AND OTHERS
v. INSTITUTE OF CARDIO VASCULAR DISEASES AND
OTHERS reported in AIR 2014 SC 448 has held that when on a
petition or complaint being filed before Magistrate, then a
Magistrate applies his mind for proceeding under the various
provisions of Chapter XIV of Cr.P.C. then it must be held to have
taken cognizance of the offences mentioned in the complaint.
The Apex Court also discussed Sections 468 and 473 of Cr.P.C.
and held that the Magistrate has the power to take cognizance of
an offence only if complaint in respect of, it is filed within
prescribed limitation period. The Magistrate would however be
entitled to exclude such time as is legally excludable. Section
473 of Cr.P.C. has a non-obstante clause which means that it
has an overriding effect on Section 468 of Cr.P.C. For the
purpose of computing the period of limitation under Section 468
of Cr.P.C., the relevant date is the date of filing of complaint or
the date of institution of process and not the date on which the
Magistrate takes cognizance.
14. The learned counsel referring this judgment would
contend that this judgment is on the point and hence the
judgments referred by the learned counsel for the petitioners are
not applicable to the case on hand when the Constitutional
Bench has delivered the judgment holding that for the purpose
of computing the period of limitation under Section 468 of
Cr.P.C. the relevant date is the date of filing of the complaint.
The learned counsel would also contend that the FIR discloses
that the cognizable offence was taken place and there was no
delay in lodging the complaint and the FIR constitutes the
offence i.e., degrading the other religions. No fundamental right
is conferred on any religion to degrade the other religion. The
same is a mixed question of fact and law and hence there cannot
be any quashing of the proceedings against the petitioners.
15. In reply to the arguments of the learned High Court
Government Pleader, the learned counsel for the petitioners
would contend that the offences which have been invoked
against the petitioners are barred by limitation and hence there
cannot be any criminal prosecution against the petitioners.
16. Having heard the respective contention of both the
counsel, this Court has to analyze the material available on
record with the principles laid down by the judgments referred
supra. It is settled law that the initiation of the criminal
prosecution is a serious matter and the Apex Court in the recent
judgment in the case of Krishna Lal Chawla (supra) held that
the learned Magistrate has to take note of the materials placed
before the Court and in paragraph No.18 it is held that it is the
duty of the Magistrate to nip frivolous litigations in the bud even
before they reach the stage of trial by discharging the accused in
fit cases.
17. The learned counsel for the petitioners would
contend that the charge-sheet is filed after 3½ years. It is also
not in dispute that the incident was taken on 06.12.2016 and the
charge-sheet was filed on 08.06.2020. It is an admitted fact
that no application is filed under Section 473 of Cr.P.C. The
Apex Court in the judgment in the case of Sarah Mathew
(supra) discussed the scope of Sections 468 and 473 of Cr.P.C.
The Apex Court categorically held that for the purpose of
computing the period of limitation under Section 468 of Cr.P.C.,
the relevant date is the date of filing of complaint or the date of
institution of process and not the date on which the Magistrate
takes cognizance. In the case on hand, no doubt the cognizance
is taken after filing of delayed charge-sheet, but the fact is that
the complaint was given on 06.12.2016. When the Apex Court
held that for the purpose of computing the period of limitation
under Section 468 of Cr.P.C., the relevant date is the date of
filing of complaint and in the case on hand, there was no delay in
lodging the complaint and the complaint was filed on the very
same day.
18. It is important to note that an allegation is made in
the complaint that the accused persons have degraded the other
religions stating that neither Bhagavadgita nor Quran will
provide any peace of mind or comes to any rescue of any person
except Yesu Christa. It is rightly pointed out by the learned
counsel for the respondent/complainant that no fundamental
right is given to any religion to degrade other religions. In the
case on hand, specific allegation against the petitioners is that
they have degraded the other religion. When such being the
case, the very contention of the learned counsel for the
petitioners that the charge-sheet is filed after delayed period
cannot be accepted when the Constitutional Bench says that for
the purpose of computing the period of limitation under Section
468 of Cr.P.C. the relevant date is the date of filing of complaint.
I have already pointed out that there is no delay in lodging the
complaint. The Apex Court in the case of Sarah Mathew
(supra) discussed in detail regarding applicability of the period of
limitation and computation of limitation in paragraph No.21 of
the judgment after discussing Sections 467 to 473 of Cr.P.C. and
so also discussed with regard to the words 'taking cognizance'
has not been defined in the Code. Hence, the first contention
that the proceedings initiated against the petitioners is barred by
limitation cannot be accepted.
19. The second contention on merits is concerned is that
the Magistrate has not applied his mind while taking the
cognizance. On perusal of the impugned order at Annexure-A,
the learned Magistrate after receiving the charge-sheet and the
relevant documents, perused the same and found prima facie
materials available on record to proceed against accused Nos.1
and 2. The learned Magistrate invoking Section 190(1)(b) of
Cr.P.C. took the cognizance for the offence punishable under
Section 298 read with Section 34 of IPC. It is settled law that
while taking the cognizance, the learned Magistrate need not
pass any elaborate order and it requires application of mind
whether charge-sheet material and its enclosures constitute a
prima facie material to proceed against the accused. When the
learned Magistrate has applied his judicious mind while taking
the cognizance, the very contention that the learned Magistrate
has not applied his judicious mind cannot be accepted.
20. The other contention of the learned counsel for the
petitioners that taking of cognizance violates Articles 14, 21 and
25 of the Constitution of India cannot be accepted for the reason
that I have already pointed out that while professing any
religion, the religious heads or professing by any person should
not degrade other religion. Having perused the complaint
averments and also the statements of the witnesses, it is specific
that while propagating they specifically mentioned that other
religious scripts does not say anything about anticipation of
tsunami and only Yesu Christa can protect them. When such
allegations are made in the complaint, the very contention of the
learned counsel for the petitioners that the offences invoked
against the petitioners does not attract the ingredients of Section
298 of IPC cannot be accepted. No doubt, while setting the law
in motion invoked Section 295(A) of IPC regarding deliberate
and malicious acts, intended to outrage religious feelings of any
class by insulting its religion or religious beliefs and after the
investigation, the Investigating Officer invoked Section 298 of
IPC uttering, words, etc. with deliberate intention to wound the
religious feelings of any person. Having taken note of the
complaint averments and also the statement of witnesses, with
deliberate intention to wound the religious feelings of other
religion words are uttered while propogating. When such being
the facts of the case, it attracts Section 298 of IPC. Hence, the
contentions of the learned counsel for the petitioners that the
charges levelled against the petitioners does not attract Section
298 of IPC and issue of process against the petitioners would
vitiates Articles 14, 21 and 25 of the Constitution of India,
cannot be accepted.
21. In view of the discussions made above, I pass the
following:
ORDER
The petition is rejected.
In view of rejection of the main petition, I.As, if any, does
not survive for consideration and the same stands disposed of.
Sd/-
JUDGE
MD
