Karnataka High Court

Sri. Jagadeesh Karanth vs The Under Secretary on 5 March, 2022

Bench: M.Nagaprasanna

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 05TH DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.15096 OF 2020 (GM-RES)

BETWEEN:

SRI JAGADEESH KARANTH
S/O SEETHARAMAIAH H.S.,
AGED ABOUT 63 YEARS
R/AT YADAVASMRITHI BUILDING
SHESHADRIPURAM
BENGALURU - 560 001.
                                               ... PETITIONER
(BY SRI SUYOG HERELE E., ADVOCATE)

AND:

1.     THE UNDER SECRETARY
       HOME DEPARTMENT (CRIMES)
       GOVERNMENT OF KARNATAKA
       VIDHANSOUDHA
       BENGALURU - 560 001.

2.     THE STATE OF KARNATAKA
       THROUGH SIRA P.S
       REP. BY SPP.
       HIGH COURT OF KARNATAKA
       BUILDING
       BENGALURU - 560 001.

3.     SRI RANGANATH
       S/O KAMBANNA
       AGED ABOUT 45 YEARS
       OPP.HANUMAN GARAGE
                               2



     N.H.ROAD, SIRA TOWN
     SIRA - 572 137.
                                                ... RESPONDENTS
(BY SRI SHANKAR H.S., HCGP. FOR R1 AND R2)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C.,
PRAYING TO QUASH THE SECTION ORDER DTD.:07.11.2009
PASSED BY THE R-1 AT ANNX-A; QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.468/2019 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC SIRA (REGISTERED B SIRA P.S.) FOR THE
ALLEGED OFFENCES PUNISHABLE U/S 153(a) (b) OF IPC,
INCLUDING THE FIR, COMPLAINT AND CHARGE SHEET VIDE
ANNX-B, C, D AND E.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

The petitioner is before this Court calling in question the

proceedings in C.C.No.468/2019, pending on the file of Senior

Civil Judge and JMFC, Sira, for the offence punishable under

Section 153(A) and (B) of the IPC, which was registered pursuant

to the sanction accorded for such prosecution on 07.11.2009.

2. Heard Sri Suyog Herele E., learned counsel for the

petitioner and Sri Shankar H.S., learned High Court

Government Pleader for respondent Nos.1 and 2.

3. Sri Suyog Herele E., learned counsel for the petitioner

would restrict his submissions only to a solitary ground that the

order of sanction dated 07.11.2009 suffers from want of

application of mind.

4. The order according sanction reads as follows:

"¥Àæ¸ÁÛªÀ£É:

ªÉÄÃ¯É NzÀ¯ÁzÀ ¢£ÁAPÀ:12.08.2009 gÀ ¥ÀvÀæzÀ°è, ªÀÄºÁ ¤zÉÃð±ÀPÀgÀÄ ªÀÄvÀÄÛ DgÀPÀëPÀ ªÀÄºÁ ¤jÃPÀëPÀgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀÄ ¸À°è¹gÀÄªÀ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è, ¥ÉÆÃ°Ã¸ï C¢üÃPÀëPÀgÀÄ, vÀÄªÀÄPÀÆgÀÄ f¯Éè gÀªÀgÀ vÀªÀÄä G¯ÉèÃR (2)gÀ ¥ÀvÀæzÀ°è ¢£ÁAPÀ: 20.02.2009 gÀAzÀÄ ²gÁ £ÀUÀgÀzÀ°è »AzÀÆ d£À eÁUÀÈw ¸ÀªÀiÁªÉÃ±ÀzÀ°è, PÀ£ÁðlPÀ gÁdå »AzÀÆ eÁUÀgÀuÁ ªÉÃ¢PÉAiÀÄ ¸ÀAZÁ®PÀgÁzÀ ²æÃ dUÀ¢Ã±À PÁgÀAvÀgÀªÀgÀÄ vÀªÀÄä ¨sÁµÀtzÀ°è ««zsÀ d£ÁAUÀUÀ¼À ªÀÄzsÉå, ¨sÁµÉ, d£Àä¸ÀÜ¼À, ªÁ¸À¸ÀÜ¼À, eÁwUÀ¼À ªÀÄzsÉå ºÁUÀÆ ««zsÀ PÉÆÃªÀÄÄUÀ¼À ªÀÄzsÉå ¥ÀÆeÁ ¸ÀÜ¼ÀUÀ¼À §UÉÎ ¸ËºÁzÀðvÉUÉ ¨ÁzsÀPÀªÁUÀÄªÀ / zsÀPÉÌAiÀiÁUÀÄªÀ jÃwAiÀÄ°è zÉéÃµÀ, ªÉÊµÀªÀÄå, ªÉÊgÀvÀé, ºÉaÑ¸ÀÄªÀAvÉ ¥ÀæZÉÆÃzÀ£ÁPÁj ¨sÁµÀt ªÀiÁrzÀÄÝ, F §UÉÎ ¢£ÁAPÀ:25.02.2009 gÀAzÀÄ ²æÃ gÀAUÀ£ÁxÀ ©£ï PÀA§tÚ, ²gÁgÀªÀgÀÄ PÉÆlÖ zÀÆj£À ªÉÄÃgÉUÉ ²gÁ ¥ÉÆÃ°Ã¸ï oÁuÉAiÀÄ°è ªÉÆ.£ÀA.42/09, PÀ®A 153 (J) ªÀÄvÀÄÛ (©) L¦¹ jÃvÁå ¥ÀæPÀgÀt zÁR¯ÁVgÀÄvÀÛzÉ. F ¥ÀæPÀgÀtzÀ°è vÀ¤SÁ¢üPÁjUÀ¼ÀÄ vÀ¤SÉ PÉÊUÉÆAqÀÄ ¸ÁQëzÁgÀgÀ£ÀÄß «ZÁgÀuÉ ªÀiÁr, ºÉÃ½PÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ vÀ¤SÉ ¥ÀÆtðUÉÆ½¹, PÀ®A 153 (J) ªÀÄvÀÄÛ (©), jÃvÁå DgÉÆÃ¦ dUÀ¢Ã±À PÁgÀAvïgÀªÀgÀ «gÀÄzÀÝ zÉÆÃµÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ£ÀÄß vÀAiÀiÁj¹ £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¸À®Ä ¸ÀPÁðgÀ¢AzÀ C©üAiÉÆÃd£Á ªÀÄAdÆgÁw PÉÆÃj ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ.

F ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸ÀPÁðgÀªÀÅ PÀÆ®APÀµÀªÁV ¥Àj²Ã°¹, PÉ¼ÀPÀAqÀAvÉ DzÉÃ²¹zÉ

DzÉÃ±À

vÀÄªÀÄPÀÆgÀÄ f¯ÉèAiÀÄ ²gÁ ¥ÉÆÃ°Ã¸ï oÁuÉ ªÉÆPÀzÀÝªÉÄ ¸ÀASÉå: 42/2009 gÀ ¥ÀæPÀgÀtzÀ°è£À DgÉÆÃ¦ dUÀ¢Ã±ï PÁgÀAvï PÀÈvÀåªÉ¸ÀVgÀÄªÀÅzÀÄ ªÉÄÃ¯ÉÆßÃlPÉÌ PÀAqÀÄ §A¢gÀÄªÀÅzÀjAzÀ, ¸ÀzÀj DgÉÆÃ¦AiÀÄ£ÀÄß PÀ®A 153 (J) ªÀÄvÀÄÛ (©) L¦¹ CrAiÀÄ°è C©üAiÉÆÃUÀUÉÆ½¸À®Ä, ¹.Dgï.¦.¹.1973 gÀ PÀ®A 196 gÀ°è ¥Áæ¥ÀÛªÁVgÀÄªÀ C¢üPÁgÀªÀ£ÀÄß ZÀ¯Á¬Ä¹, ¸ÀPÁðgÀzÀ ¥ÀÆªÀð£ÀÄªÀÄwAiÀÄ£ÀÄß ¤ÃqÀ¯ÁVzÉ."

The preamble narrates the circumstances and the

consideration is given in one line, which reads as under:

"F ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸ÀPÁðgÀªÀÅ PÀÆ®APÀµÀªÁV ¥Àj²Ã°¹, PÉ¼ÀPÀAqÀAvÉ DzÉÃ²¹zÉ."

The identical orders of according sanction for prosecution

under Section 153A of the IPC had become the subject of

consideration at the hands of this Court in Crl.P.No.5613/2016,

wherein this Court has held as follows:

"16. Further, the impugned proceedings cannot be permitted to continue for the added reason that the sanction accorded by the Government under section 166 of the Code for the prosecution of the petitioner for the alleged offence under section 295A of IPC does not satisfy the basic requirements of law. A bare perusal of the sanction order produced by the prosecution indicates that the requisite materials constituting the alleged offences were not placed before the sanctioning authority. The preamble of the said order clearly reveals that the sanction has been accorded solely on the basis of the requisition made by the ADGP. The sanction order does not refer to the facts of the case or the material relied on

by the prosecution to arrive at a decision that the material collected by the Investigating Agency was sufficient to make out a case for prosecution of the petitioner under section 295A of the IPC indicating that without considering the relevant documents and charge sheet materials, the Government has accorded the sanction mechanically with a predetermined mind. The impugned sanction on the face of it suffers from the vice of lack of application of mind. No prosecution could be sustained on the basis of the said sanction order. For all the above reasons, the impugned proceedings are liable to be quashed.

Accordingly, the petition is allowed. Proceedings in C.C.No.623/2016 on the file of IV Addl. 1 st Civil Judge (Jr.Dn.) & JMFC Court, Mysuru are quashed."

This Court in a later judgment rendered on 27.01.2020, in

writ petition No.24900/2018, considering the law laid down by

the Apex Court, has held has follows:

"8. The first and foremost contention which is taken up by accused No.3 is that no ingredients of Sections 153A and 295A of IPC have been fulfilled or

in the charge sheet any such material available to connect the petitioner/accused to the alleged crime.

9. For the purpose of brevity, I quote Sections 153A and 295A of IPC.

"S. 153 A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-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) 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) 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 reli-gious 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 273 [citizens of India], 274 [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.]"

On close reading of Section 153A of IPC, it indicates that a person either 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 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, then the said offence constitute and in order to constitute an offence, it is essential that the act of the accused must be with 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 153-A IPC. This issue also came up before the Hon'ble Apex Court in the case of Manzar Maharashtra Sayeed and Khan Another Vs. (quoted State of supra) at paragraph No.16, it has been observed as under:

"16. Section 153-A 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 tranquillity. 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 153-

A 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 153-A 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."

Even as could be seen from section 295A of IPC, it indicates that what is penalizes is only those acts of insults 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 then the provisions of Section 295A of IPC is attracted. This issue also came up before the Hon'ble Apex Court in the case of Mahendra Singh Dhoni (quoted supra), at paragraph No.6, it has been observed 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 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."

On close reading of the said provision and the decisions quoted supra, makes it very clear that in order to attract the provisions of Sections 153A and 295A of IPC, the said act of the accused, must be an intentional one. On close scrutiny of the charge sheet material which has been made available indicates that except the voluntary statement of accused No.3 and the statement of one Mr. R. Vasanth Kumar, who is the owner of the Gujari shop for having purchased two heads of dead pigs, no other materials have been produced to show that with deliberate intention, the petitioner/accused along with other accused persons have purchased two heads of dead pigs to commit the offence. Even as could be seen

from the contents of the complaint, it indicates that the police officials while on patrolling duty, at about 5.15, a.m. they saw the head of dead pig, which were kept by someone in Masjid. But there is no material to show that it is petitioner/accused No.3 along with other accused persons have brought the same and have kept in front of Masjid. Though it is contended by the learned High Court Government Pleader that an inference or presumption can be drawn that it is petitioner/accused No.3, ought to have purchased the said heads of dead pigs and he has kept the same in Masjid so as to affect the religion feelings but it is well settled proposition of law that only on the basis of presumption, it cannot be inferred that the accused persons were having an intention and with that intention, petitioner/accused has purchased the two heads of the dead pigs and thereafter, the same has been kept in front of Masjid. In the absence of any link or material, no inference can be drawn as against accused.

10. Looking from any angle, I am of the considered opinion that the essential ingredients, which have to be satisfied as contemplated under the law, the same are lacking. Even the allegations

are based upon the voluntary statement of the accused. The voluntary statement of the accused cannot be used for any other purpose other than as contemplated under Section 27 of the Evidence Act, 1872 and as could be seen from the records, the voluntary statement of accused No.3 has been recorded on 19.09.2008 and prior to that, the statement of R. Vasanth Kumar has been recorded on 30.07.2008 and also the voluntary statement of accused No.5 has been recorded on 10.07.2009. The said statements of the accused are also in a stereo type recording.

11. Taking into consideration of the above said facts and circumstances of the case I am of the considered opinion that in order to constitute an offence, there must be mens rea. Without there being any intention, the accused cannot be convicted for the alleged offences.

12. Be that as it may. As could be seen from the sanction order of Government dated 21.06.2013, it indicates that it has only referred the sending of material and contents of the complaint. Thereafter, stated that the statement of the witnesses and other things, constitute an offence under Section 196 of the

IPC. In order to constitute an offence, there must be a sanction of Central Government or the State Government and without there being any sanction; no Court shall take the cognizance of the offence. No doubt the sanction order has been produced. A fair perusal of the sanction order produced by the prosecution indicates that the requisite materials constitute the alleged offences and are not placed before the sanctioning Authority. The sanction has been accorded only on the basis of the requisition made by the DGP and IGP and the said order does not refer to the facts and statement of the witnesses for having perused the same and without satisfying the sanction order itself has been issued. Though it is contended by the learned High Court Government Pleader that the said Section 196 does not say that there must be an application of mind. But when the sanction has to be issued, the object and spirit of the Section if it is taken into consideration, then the frivolous and a false complaint should not be encouraged as it affects the tranquility and the peace of the country in that light, the said provisions has been made. Entire material if it is perused, it indicates that where he has seen the intention of the accused and where he has satisfied and also has

not been specifically stated that it is one of the essential ingredients to constitute an offence. In the absence of such material, the sanctioning Authority has not applied its mind before issuing the sanction order dated 21.06.2013. Looking from any angle, the materials produced does not constitute an offence so as to proceed against the accused.

13. It is the contention of the learned High Court Government Pleader that at this juncture, the matter has to be considered and appreciated at the time of evidence and arguments. But it is well settled proposition of law that the ingredients of the offences are lacking. Under such circumstance, the proceedings and holding a trial that itself is nothing but an abuse of process of law and it is a waste of Courts time. In that light also, the contention of the learned High Court Government Pleader is not acceptable.

14. Looking from any angle, the prosecution has not made out any case so as to proceed against petitioner/accused No.3.

15. In the light of the discussions held by me above, I am of the considered opinion that it is a fit

case to exercise the power under Section 482 of Cr.P.C. In that light, petition is allowed and the proceedings in C.C. No.14793/2013 on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru for the offences punishable under Sections 295A, 153A and 120B read with Section 34 of IPC in so far as petitioner/accused No.3 is concerned are quashed."

The afore-extracted are two judgments, out of many that

are rendered by this Court, which covers the very issue in the

petition on all its fours. In the light of the order of sanction

which admittedly suffers from want of application of mind and

the law laid down by the Apex Court as followed by the Co-

ordinate Benches of this Court afore-quoted, the writ petition

deserves to succeed.

5. For the aforesaid reasons, the following:

ORDER

(i) The writ petition is allowed.

(ii) The proceedings in C.C.No.468/2019, pending on

the file of Senior Civil Judge and JMFC, Sira,