[Cites 27, Cited by 0]
Karnataka High Court
Sri Sirajuddin vs The State Of Karnataka on 30 January, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 07.01.2026
Pronounced on : 30.01.2026
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3258 OF 2024
BETWEEN:
SRI SIRAJUDDIN
S/O MOHAMMAD ISMAIL
AGED ABOUT 30 YEARS
R/AT 1-15
GOWZIYA MANZIL HOUSE
KUPPETTI KARAYA VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA - 574 214.
... PETITIONER
(BY SRI T.RAMESH, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
REPRSENTED BY CEN POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . K.JAYARAJ SALIAN
S/O SESAPPA POOJARY
KANARPA HOUSE
KADIRUDYAVARA VILLAGE
2
BELTHANGADY TALUK
DAKSHINA KANNADA - 574 214.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI RAKSHITH KUMAR, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.4/2021 DATED
25.01.2021 (ANNEXURE-B) REGISTERED FOR THE OFFENCE P/U/S
295(A) OF IPC AND SEC.67 OF I.T ACT 2000 BY THE SHO CEN
(CYBER, ECONOMICS, NARCOTICS CRIME) P.S. MANGALURU D.K.,
TALUK, PENDING ON THE FILE OF THE PRL.CIVIL JUDGE AND
J.M.F.C AT BELTHANGADY D.K. (ANNEXURE-G).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.01.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.1 is at the doors of this Court
calling in question registration of a crime in Crime No.4 of 2021
registered for offences punishable under Section 295A of the IPC
and Section 67 of the Information Technology Act, 2008
(hereinafter referred to as 'the Act' for short).
3
2. FACTUAL BACKGROUND:
The factual narrative, shorn of embellishment, is this. The 2nd
respondent claims that on 23-01-2021 he received a whatsapp link
from an unknown source under the name "Bajarangi Go Kallaru".
Upon accessing the link, he was added to a whatsapp group
consisting of 6 administrators and nearly 250 participants.
According to the complainant, obscene and deeply offensive
images, depicting deities of the Hindu pantheon and certain political
figures have been repeatedly circulated in the group. Alleging that
the content was deliberately intended to outrage religious feelings
and insult religious beliefs, a complaint was lodged, culminating in
registration of crime No.4 of 2021. Investigation ensued.
Electronic devices were seized, screenshots were collected, and
group details were obtained. One of the administrators of the
group was apprehended, who surrendered his mobile device. The
petitioner was later arrested, his device is seized and was produced
before the Jurisdictional Magistrate. He was enlarged on bail on
16-02-2021. It is the registration of the crime and continuation of
investigation, that is questioned before this Court.
4
3. Heard Sri T.Ramesh, learned counsel appearing for the
petitioner, Sri B.N.Jagadeesha, learned Additional State Public
Prosecutor appearing for respondent No.1 and Sri Rakshith Kumar,
learned counsel appearing for respondent No.2.
SUBMISSIONS:
4. The learned counsel appearing for the petitioner would
vehemently contend that the learned Magistrate cannot take
cognizance of the offence under Section 295A of the IPC, as no
previous sanction as necessary under Section 196(1) of the Cr.P.C.,
was obtained from any of the Competent Authorities. The
Investigating Officer has been negligent and has failed to make
necessary application under Section 67C of the Act directing the
intermediaries, specifically Airtel and Jio, to preserve the contents
in the electronic form, as it has been more than 4 years and 2
months and the electronic evidence would be destroyed by default
by the intermediaries. He would project bias and partisan attitude
of the Investigating Officer, as the creator of the group is not taken
into custody nor investigation is conducted against him. The
petitioner is singled out for penal action. He would submit that
5
there is no role of the petitioner neither directly nor indirectly in the
complaint, except mention of the telephone number of the
petitioner. It is his submission that every act would not become an
offence under Section 295A of the IPC, as the acts have no effect of
bringing out breach of peace or destruction of public order.
5. Per contra, the learned Additional State Public Prosecutor
appearing for the 1st respondent would vehemently refute the
submissions in contending that sanction under Section 196 of the
Cr.P.C., is not required for registration of a FIR or conduct of an
investigation for offence under Section 295A of the IPC. It is only
when the charge sheet is filed and upon which cognizance is taken,
it is at that point in time sanction would require. That stage is yet
to arrive. The offence under Section 295A has been clearly made
out in the case at hand. Explicit photographs of Hindu Gods and
Goddesses are posted in the group, thereby maliciously insulting
the religious feelings of the de-facto complainant. He would seek
dismissal of the petition and permitting further investigation to be
conducted in the case at hand.
6
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record. In furtherance whereof, the issues that call for
consideration are:
ISSUES FOR CONSIDERATION:
(i) Whether sanction under Section 196 of the
Cr.P.C. is necessary for registration of a crime
and investigation thereon under Section 295A
of the IPC?
(ii) Whether ingredients of Section 295A of the IPC
are prima facie made out in the case at hand?
Issue No.1:
Whether sanction under Section 196 of the Cr.P.C. is
necessary for registration of a crime and investigation
thereon under Section 295A of the IPC?
7. The offence alleged is the one punishable under Section
295A of the IPC. Section 295A reads as follows:
7
"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."
Section 295A punishes those persons who with 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 and would incur punishment of 3 years imprisonment
or fine or both. The contention is that without there being a
sanction under Section 196 of the Cr.P.C., an offence under Section
295A of the IPC cannot be investigated into. Therefore, I deem it
appropriate to notice Section 196 of the Cr.P.C. It reads as follows:
"196. Prosecution for offences against the State and for
criminal conspiracy to commit such offence. - (1) No
Court shall take cognizance of -
(a) Any offence punishable under Chapter Vi or
under Section 153-A, Section 295A or sub-
section (1) of Section 505 of the Indian Penal
Code (45 of 1860), or
8
(b) A criminal conspiracy to commit such offence, or
(c) Any such abetment, as is described in Section 108-A
of the Indian Penal Code (45 of 1860),
Except with the previous sanction of the Central Government or
of the State Government.
(1-A) No Court shall take cognizance of -
(a) Any offence punishable under Section 153-B or sub-
section (2) or sub-section (3) of Section 505 of the
Indian Penal Code (45 of 1860), or
(b) A criminal conspiracy to commit such offence,
Except with the previous sanction of the Central Government or
of the State Government or of the District Magistrate.
(2) No Court shall take cognizance of the offence of any
criminal conspiracy punishable under section 120-B of the
Indian Penal Code (45 of 1860), other than a criminal
conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two
years or upwards, unless the State Government or the District
Magistrate has consented in writing to the initiation of the
proceedings:
Provided that where the criminal conspiracy is one to
which the provisions of section 195 apply, no such consent shall
be necessary.
(3)The Central Government or the State Government
may, before according sanction under sub-section (1) or sub-
section (1-A) and the District Magistrate may, before according
sanction under sub-section (1-A) and the State Government or
the District Magistrate may, before giving consent under sub-
section (2), order a preliminary investigation by a police officer
not being below the rank of Inspector, in which case such police
officer shall have the powers referred to in sub-section (3) of
section 155."
9
Section 196 Cr.P.C. employs the expression "No Court shall
take cognizance" of certain offences including those
punishable under Section 295A of IPC without previous
sanction of the appropriate Government. The statutory
embargo is explicit and unambiguous. The bar under Section
196 Cr.P.C. operates only at the stage when the Court
proposes to take cognizance of the offence and does not
fetter the police to register a FIR or conduct investigation.
Therefore, there is no warrant in law to obtain sanction even for
registration of crime and investigation of the offence.
7.1. The law, in this regard, is too well settled. The Apex
Court in PARVEZ PARWAZ v. STATE OF UTTAR PRADESH1, has
held as follows:
".... .... ....
"10. The words "No Court shall take cognizance"
employed in Section 196 of the Code of Criminal
Procedure (for short 'CrPC') and the consequential bar
created under the said provision would undoubtedly show
that the bar is against 'taking of cognizance by the Court'.
In other words, it creates no bar against registration of a
crime or investigation by the police agency or submission
of a report by the police on completion of investigation as
1
2022 SCC OnLine SC 1103
10
contemplated under Section 173, CrPC [Refer:-- State of
Karnataka v. Pastor P. Raju, (2006) 6 SCC 728)]."
7.2. A little earlier to the judgment of the Apex Court, a
coordinate Bench of this Court in VISHWANATH v. STATE OF
KARNATAKA2 has held as follows:
".... .... ....
15. The questions that would arise for consideration in
this petition are as under:
i. Whether prior sanction is required under
Section 196 of Cr.P.C. for carrying out an
investigation of an offence against the State
and/or for criminal conspiracy to commit such
offence?
ii. Whether prior sanction is required before
filing of charge sheet before the Magistrate as
regards an offence against the State and/or
for criminal conspiracy to commit such
offence?
iii. Whether once charge sheet has been filed,
can the sanction granted be withdrawn by the
State Government?
iv. Whether once the charge sheet has been filed
after sanction, the State Government can
direct the public prosecutor to withdraw the
complaint?
v. If there is a valid sanction issued can the
petitioners try to take advantage of the so-
called direction by the State Government to
2
2020 SCC OnLine Kar 501
11
the Public Prosecutor to withdraw the
complaint vide government order dated
04.11.2015 to seek for discharge from the
proceedings?
vi. Whether a complaint for defamation can only
be filed by a person defamed or can it also be
filed by an institution or a representative of
the institution so alleged to be defamed?
vii Whether Section 153-A of IPC can be invoked
only if it resulted in promoting enmity
between two separate religions or could it be
invoked if it promotes enmity within the same
religious group or sect or in general disturb
public tranquility?
viii. Whether dissemination of material which is
"lascivious or appeals to the prurient
interest" by way of Compact Disks would
attract Section 67 of Information Technology
Act?
ix. What Order
Point No. (i) : Whether prior sanction is required
under Section 196 of Cr.P.C. for carrying out an
investigation of an offence against the State and/or for
criminal conspiracy to commit such offence?
16. Sri. A.P. Hegde, Learned Counsel appearing for the
petitioner has contended that even before the investigation is
carried out, sanction under Section 196 of Cr.P.C. is required. He
contends that the State has to give sanction for the investigation
and no investigation can be carried out without sanction. He
contends that, in the present case, since the investigation is carried
out without a sanction, the investigation can not be looked into and
no further proceedings be initiated thereon.
17. Per contra, Smt.Vidyavathi, Learned AAG, and Sri. S.M.
Chandrashekar, Learned Senior Counsel have contended that at the
stage of the investigation, there is no requirement for any sanction
12
and therefore, the investigation can not be faulted with on account
of not obtaining of sanction.
18. Section 196 of the Cr. P.C. reads as under:
Section 196: Prosecution for offences
against the State and for criminal
conspiracy to commit such offence.
(1) No Court shall take cognizance of--
(a) any offence punishable under
Chapter VI or under section 153A, [ Subs, by Act
63 of 1980, s. 3, for "section 153B, section 295A
or section 505" (w.e.f. 23-9-1980).] [section
295A or sub-section (1) of section 505] of the
Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit
such offence, or
(c) any such abetment, as is described
in section 108A of the Penal Code (45 of 1860),
except with the previous sanction of the Central
Government or of the State Government.
[ Ins. by s. 3, ibid. (w.e.f. 23-9-1980).]
[(1 A) No Court shall take cognizance of
(a) any offence punishable under
section 153B or sub-section (2) or sub-section
(3) of section 505 of the Penal Code (45 of
1860), or
(b) a criminal conspiracy to commit
such offence, except with the previous sanction
of the Central Government or of the State
Government or of the District Magistrate.]
(2) No Court shall take cognizance of the
offence of any criminal conspiracy punishable
under section 120B of the Penal Code (45 of
1860), other than a criminal conspiracy to
commit [ Subs, by Act 45 of 1978, s. 16, for "a
cognizable offence" (w.e.f. 18-12-1978).] [an
13
offence] punishable with death, imprisonment for
life or rigorous imprisonment for a term of two
years or upwards, unless the State Government
or the District Magistrate has consented in writing
to the initiation of the proceedings:
Provided that where the criminal
conspiracy is one to which the provisions of
section 195 apply, no such consent shall be
necessary.
(3) The Central Government or the State
Government may, before according sanction [
Subs, by Act 63 of 1980, s. 3, for "under sub-
section" (1) (w.e.f. 23-9-1980).] [under sub-
section (1) or sub-section (1 A)] and the District
Magistrate may, before according sanction under
sub-section (1A) and the State Government or
the District Magistrate may, before giving
consent under sub-section (2), order a
preliminary investigation by a police officer not
being below the rank of Inspector, in which case
such police officer shall have the powers referred
to in sub-section (3) of section 155.
19. Section 196, therefore imposes an embargo which is
mandatory in nature, the conditions for taking cognizance of an
offence have to be necessarily followed before taking such
cognizance. Counsel for the petitioner has relied upon the
decision in VALISIDDAPPA's case, stated supra to contend that
even for preliminary investigation sanction is required. That was
a case where the order indicated both a direction for preliminary
investigation as also sanction for prosecution. Hence, this Court
has held that there cannot be simultaneous direction according
sanction for prosecution as also for investigation since the
question of sanction would arise only on completion of the
investigation by the Investigating Officer and on availability of
relevant material collected during the investigation. This
decision relied upon by Mr Hegde, in fact, is contrary to his
submissions.
20. This Court in VALISIDDAPPA's case, has
categorically held that the question of sanction would
arise only after all the materials are placed before the
Sanctioning Authority. As a corollary, it is clear that at
the investigation stage, there is no sanction which is
14
required and the question of according of sanction would
arise only after the investigation is completed.
21. This Court in the case of State of Karnataka v. K.
Rajashekar, supra has held that the prior sanction of the
Government is required before cognizance is taken of any
such offence. Section 196 would apply only to a Court and
not to the police or any investigating agency. Thus, it is
clear from the above discussion that no sanction is
required for the purpose of carrying out investigation.
This is also logically correct in the sense that the sanction
contemplated under Section 196 Cr.P.C. is for
"prosecution for offences against the State and for
criminal conspiracy to commit such offence".
22. Prosecution for an offence does not commence
at the stage of investigation. At the investigation stage,
the Investigating Officer is only to ascertain the facts of
the matter and to prepare investigation report.
Thereafter, the Investigating Officer has an option either
to file a 'B' summary report to state that no offence is
committed or to file a charge sheet. If the Investigating
Officer is to file a 'B' summary, there would be no
prosecution. It is only if a charge sheet is to be filed,
then, after filing of the charge sheet, the prosecution
would commence. Therefore, at the stage of
investigation, it would not be clear as to whether the
complaint received would require prosecution or not. It is
only if the matter were to proceed towards prosecution,
Section 196 of Cr.P.C. would get attracted which
contemplates prior sanction by the State for such
prosecution.
23. Infact, Section 196(1A) speaks of 'no Court
could take cognizance of certain offences except with the
previous sanction of the Central Government or of the
State Government or of the District Magistrate as the
case may. That is to say that prior to cognizance being
taken, there is no sanction which is required, more so
since Section 196 (1 A) applies only to Courts and Courts
taking cognizance. An Investigating Officer conducting an
investigation on a complaint being received will not come
within the purview of Section 196 (1A). Accordingly, I
15
answer Point No. 1 by holding that no prior sanction is
required under Section 196 of Cr.P.C. for carrying out the
investigation of an offence by the Investigating Officer,
without the intervention of the Court.
Point No. (ii): Whether prior sanction is required
before filing of charge sheet before the Magistrate as
regards an offence against the State and/or for criminal
conspiracy to commit such offence?
24. The word 'cognizance' is derived from Middle English
word 'conisance', which in turn is derived from Old French
'conoisance' which in turn is based on Latin word cognoscere
which essentially means 'get to know'. The common
understanding of the word is "taking notice", legally it can be
said to be "takingjudicial notice by a competent jurisdictional
Court of law".
25. The Hon'ble Apex Court in R.R. Chari v. State of
U.P. [AIR 1951 SC 207.], observed that "taking cognizance does
not involve any formal action or indeed action of any kind but
occurs as soon as a Magistrate as such applies his mind to the
suspected commission of offence".
26. Though the word cognizance assumes a very
important position in the discharge of functions of the Court the
same is not statutorily defined.
27. As discussed above no sanction is required prior to or
during the course of the investigation, in terms of Section
196(1A) and (2) prior sanction is required at the time of taking
cognizance, i.e., at the time when the Court takes notice of the
alleged offence committed. This gives rise to the interesting
question as to whether sanction is required for purposes of filing
a charge sheet of which the Court takes cognizance of
subsequently. Cognizance of an offence can only happen after
the filing of a charge sheet, needless to say without the filing of
a charge sheet; there can be no cognizance taken by the Court.
Such a cognizance could be taken immediately after the charge
sheet is filed or on a subsequent date, when the charge sheet
filed in the office of the Court is placed before the Court. Thus,
this would mean that sanction has to be obtained prior to the
cognizance being taken.
16
28. Section 196 however, speaks of prosecution for
offences against the State and for criminal conspiracy to commit
such offence. Neither Cr.P.C. nor the IPC defines the word
"prosecution" so is "commencement of prosecution" not defined.
I'm of the considered view that a prosecution commences with
the filing of the charge sheet in so far as the State is concerned.
It is therefore required that before a charge sheet is filed and
prosecution commences, prior sanction of the concerned
authority being State Government, Central Government or the
District Magistrate be obtained. Trial Court can only take
cognizance of an offence if the charge sheet is accompanied by
the sanction. Thus, without the sanction order being available
before the Court, no cognizance could be taken.
29. However, Section 196 speaks of sanction for
prosecution and imposes an embargo on the Court taking
cognizance. Prior sanction is required for the purpose of
prosecution, the sanction of the prosecution being in the
discretion of the concerned authority, even if the
investigation report makes out an offence, the concerned
authority may decide not to prosecute the matter. Thus,
the decision in regard to prosecuting or not is at the sole
discretion of the concerned authority. Since the offences
are against the State, Investigating Officer has to submit
the investigation report to the concerned authority to
enable the concerned authority to take a decision on
whether to prosecute the matter or not. While doing so,
the concerned authority would decide whether to
sanction such prosecution or not.
30. If such a sanction is granted, only then, a formal
charge sheet would have to be prepared and filed before the
jurisdictional Magistrate. The Hon'ble Apex Court has held that
prior sanction of the Government is required before taking
cognizance of an offence. The cognizance being taken
subsequent to the charge sheet being filed, the charge sheet
being the basis for such cognizance, the charge sheet has to be
accompanied by such sanction. Thus, I answer Point No. (ii) by
holding that at the time of filing of the charge sheet, it is
required that the sanction order be filed with the same."
17
7.3. The High Court of Bombay in KHYYUM v. THE STATE
OF MAHARASHTRA3 has held as follows:
".... .... ....
14. We would also like to deal with the arguments of the
learned Advocate for the applicant in respect of Section 196 of
Cr.P.C. The argument deserves to be rejected outrightly for the
simple reason that sanction required under Section 196 of
Cr.P.C is a condition precedent to the Court for taking
cognizance. It is the Court who takes cognizance of an
offence after a report under Section 173 of Cr.P.C is filed
by the Investigating Officer. It does not fetter police
powers to register an F.I.R and investigate. Therefore,
the arguments of the learned Advocate for the applicant
for applicability of Section 196 of Cr.P.C is misconceived
and untenable in law. Though we must clarify that this
argument about absence of sanction does not rendered the F.I.R
epso facto illegal. In the present case, this question is merely
academic as in our considered view the F.I.R itself fails on its
own merits.
Both, the coordinate Bench of this Court and the High Court
of Bombay have clearly held that there can be no fetters put
on the Police to register a FIR and investigate. Sanction is a
condition precedent only when a Court takes cognizance on
the final report placed by the investigating agency before
the Court. Absence of sanction cannot mean that registration
of crime is illegal. The provision is unequivocal.
3
Crl. Application No.1028 of 2024 decided on 12-09-2025
18
8. The learned counsel for the petitioner has placed reliance
upon several judgments rendered by the coordinate Benches
bringing in issue of sanction even at the stage of a crime. All those
would become inapplicable, as the provision itself does not indicate
that prior sanction is required at the stage of registration of a
crime. The Apex Court in PARVEZ PARWAZ supra has clearly
delineated the said issue in a judgment rendered in the year 2022.
Therefore, it is no law that for registration of a crime
sanction is required. In the light of the statute and the
judicial landscape as considered by the Apex Court,
coordinate Bench of this Court and the Bombay High Court, I
deem it appropriate to hold that sanction would be required
for an offence under Section 295A of the IPC, only at the
stage of cognizance and not for registration of a crime or
conduct of investigation. Investigation precedes
prosecution. At the investigating stage, it is not known
whether the material collected would ultimately warrant
filing of a charge sheet or closure of proceedings. To insist
upon sanction even before investigation, would be to place a
cart before the horse and defeat the very object of
19
investigation. I, therefore, hold that prior sanction under Section
196 Cr.P.C. is not required for registration of FIR or for conduct of
investigation and becomes mandatory only when the Court takes
cognizance upon presentation of the final report. In the case at
hand, the matter is still at the stage of investigation. The stage of
taking of cognizance is yet to arrive. The issue is answered
accordingly.
Issue No.2:
Whether ingredients of Section 295A of the IPC are
prima facie made out in the case at hand?
9. Section 295A of the IPC criminalizes such acts as are
committed with deliberate and malicious intention to outrage
religious feelings. The provision has borne
consideration/interpretation by the Apex Court in plethora of cases,
striking a balance between freedom of expression under Article
19(1)(a) and maintenance of public order.
20
9.1. The Apex Court in RAMJI LAL MODI v. STATE OF
UTTAR PRADESH4 has held as follows:
".... .... ....
8. It is pointed out that Section 295-A has been
included in Chapter XV of the Indian Penal Code which
deals with offences relating to religion and not in Chapter
VIII which deals with offences against the public tranquillity and
from this circumstance it is faintly sought to be urged,
therefore, that offences relating to religion have no bearing on
the maintenance of public order or tranquillity and consequently
a law creating an offence relating to religion and imposing
restrictions on the right to freedom of speech and expression
cannot claim the protection of clause (2) of Article 19. A
reference to Articles 25 and 26 of the Constitution, which
guarantee the right to freedom of religion, will show that the
argument is utterly untenable. The right to freedom of religion
assured by those Articles is expressly made subject to public
order, morality and health. Therefore, it cannot be predicated
that freedom of religion can have no bearing whatever on the
maintenance of public order or that a law creating an offence
relating to religion cannot under any circumstances be said to
have been enacted in the interests of public order. Those two
Articles in terms contemplate that restrictions may be imposed
on the rights guaranteed by them in the interests of public
order.
9. Learned counsel then shifted his ground and
formulated his objection in a slightly different way. Insults to
the religion or the religious beliefs of a class of citizens of India,
may, says learned counsel, lead to public disorders in some
cases, but in many cases they may not do so and, therefore, a
law which imposes restrictions on the citizens' freedom of
speech and expression by simply making insult to religion an
offence will cover both varieties of insults i.e. those which may
lead to public disorders as well as those which may not. The law
insofar as it covers the first variety may be said to have been
enacted in the interests of public order within the meaning of
4
1957 SCC OnLine SC 77
21
clause (2) of Article 19, but insofar as it covers the remaining
variety will not fall within that clause. The argument then
concludes that so long as the possibility of the law being applied
for purposes not sanctioned by the Constitution cannot be ruled
out, the entire law should be held to be unconstitutional and
void. We are unable, in view of the language used in the
impugned section, to accede to this argument. In the first place
clause (2) of Article 19 protects a law imposing reasonable
restrictions on the exercise of the right to freedom of speech
and expression "in the interests of public order", which is much
wider than "for maintenance of" public order. If, therefore,
certain activities have a tendency to cause public
disorder, a law penalising such activities as an offence
cannot but be held to be a law imposing reasonable
restriction "in the interests of public order" although in
some cases those activities may not actually lead to a
breach of public order. In the next place Section 295-A
does not penalise any and every act of insult to or
attempt to insult the religion or the religious beliefs of a
class of citizens but it penalises only those acts of insults
to or those varieties of attempts to insult the religion or
the religious beliefs of a class of citizens, which are
perpetrated with the deliberate and malicious intention of
outraging the religious feelings of that class. 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. It
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.
The calculated tendency of this aggravated form of insult
is clearly to disrupt the public order and the section,
which penalises such activities, is well within the
protection of clause (2) of Article 19 as being a law
imposing reasonable restrictions on the exercise of the
right to freedom of speech and expression guaranteed by
Article 19(1)(a). Having regard to the ingredients of the
offence created by the impugned section, there cannot, in
our opinion, be any possibility of this law being applied
for purposes not sanctioned by the Constitution. In other
words, the language employed in the section is not wide
enough to cover restrictions both within and without the
limits of constitutionally permissible legislative action
22
affecting the fundamental right guaranteed by Article
19(1)(a) and consequently the question of severability
does not arise and the decisions relied upon by learned
counsel for the petitioner have no application to this
case.
10. For the reasons stated above, the impugned section
falls well within the protection of clause (2) Article 19 and this
application must, therefore, be dismissed."
9.2. The Apex Court, later, in SHATRUGHNA PRASAD
SINHA v. RAJBHAU SURAJMAL RATHI5 has held as follows:
".... .... ....
5. Section 295-A of the IPC envisages the essential
ingredients of the punishment and provides that
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. The quoted para does not contain
essential facts constituting the offence."
9.3. The Apex Court in AMISH DEVGAN v. UNION OF
INDIA6 has held as follows:
".... .... ....
99. Section 295-A and sub-section (2) of Section 505 of
the Penal Code read as under:
5
(1996) 6 SCC 263
6
(2021) 1 SCC 1
23
"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.--(1) * * *
(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 [Ramji Lal
Modi v. State of U.P., AIR 1957 SC 620 : 1957 Cri LJ 1006]
, Kedar Nath [Kedar Nath Singh v. State of Bihar, AIR 1962 SC
955 : (1962) 2 Cri LJ 103] , Bilal Ahmed Kaloo [Bilal Ahmed
Kaloo v. State of A.P., (1997) 7 SCC 431 : 1997 SCC (Cri)
1094]. It could be correct to say that Section 295-A 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 295-A 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, caste, etc.
feeling of enmity, hatred or ill-will between different religions,
racial language, religious groups or castes or communities, etc."
9.4. The Apex Court in VINOD DUA v. UNION OF INDIA7 has
held as follows:-
".... .... ....
27. In Priya Prakash Varrier [Priya Prakash
Varrier v. State of Telangana, (2019) 12 SCC 432 : (2019) 4
SCC (Cri) 397] , the nature of relief claimed was set out in para
1 of the decision whereafter this Court relied upon the dictum of
the Constitution Bench in Ramji Lal Modi v. State of U.P. [Ramji
Lal Modi v. State of U.P., 1957 SCC OnLine SC 77: AIR 1957 SC
620] that for an offence to come within the parameters of
Section 295-AIPC, the crime ought to have been
committed with deliberate and malicious intention of
outraging the religious feelings of a class. Finding such
element to be completely absent, the relief prayed for was
granted by this Court. The relevant observations of this Court
were: (Priya Prakash Varrier case [Priya Prakash Varrier v. State
of Telangana, (2019) 12 SCC 432: (2019) 4 SCC (Cri) 397],
SCC pp. 433-37, paras 1, 7, 12-13 and 15)
"1. In the instant writ petition preferred under
Article 32 of the Constitution of India, the petitioners,
namely, the actor, producer and director of the movie,
have prayed for quashing of FIR No. 34 of 2018, dated
14-2-2018, registered at Falaknama Police Station,
Hyderabad, Telangana. That apart, a prayer has also
been made that no FIR should be entertained or no
complaint under Section 200 of the Code of Criminal
(2023) 14 SCC 286
Procedure, 1973 should be dealt with because of the
picturisation of the song "ManikyaMalarayaPoovi" by
Petitioner 1 in the film, namely, "OruAdaar Love".
***
7. It is worthy to note here that the constitutional
validity of the said provision was assailed before this
Court and a Constitution Bench in Ramji Lal
Modi v. State of U.P. [Ramji Lal Modi v. State of U.P.,
1957 SCC OnLine SC 77: AIR 1957 SC 620], spoke thus:
(SCC OnLine SC paras 8-9)
'8. It is pointed out that Section 295-A has been
included in Chapter XV, Penal Code which deals with
offence relating to religion and not in Chapter VIII which
deals with offences against the public tranquillity and
from this circumstance it is faintly sought to be urged,
therefore, that offences relating to religion have no
bearing on the maintenance of public order or
tranquillity and consequently a law creating an offence
relating to religion and imposing restrictions on the right
to freedom of speech and expression cannot claim the
protection of clause (2) of Article 19. A reference to
Articles 25 and 26 of the Constitution, which guarantee
the right to freedom of religion, will show that the
argument is utterly untenable. The right to freedom of
religion assured by those articles is expressly made
subject to public order, morality and health. Therefore,
it cannot be predicated that freedom of religion can have
no bearing whatever on the maintenance of public order
or that a law creating an offence relating to religion
cannot under any circumstances be said to have been
enacted in the interests of public order. Those two
articles in terms contemplate that restrictions may be
imposed on the rights guaranteed by them in the
interests of public order.
9. The learned counsel then shifted his ground
and formulated his objection in a slightly different way.
Insults to the religion or the religious beliefs of a class of
citizens of India, may, says the learned counsel, lead to
public disorders in some cases, but in many cases they
may not do so and, therefore, a law which imposes
restrictions on the citizens' freedom of speech and
expression by simply making insult to religion an offence
will cover both varieties of insults i.e. those which may
lead to public disorders as well as those which may not.
The law insofar as it covers the first variety may be said
to have been enacted in the interests of public order
within the meaning of clause (2) of Article 19, but
insofar as it covers the remaining variety will not fall
within that clause. The argument then concludes that so
long as the possibility of the law being applied for
purposes not sanctioned by the Constitution cannot be
ruled out, the entire law should be held to be
unconstitutional and void. We are unable, in view of the
language used in the impugned section, to accede to
this argument. In the first place clause (2) of Article 19
protects a law imposing reasonable restrictions on the
exercise of the right to freedom of speech and
expression "in the interests of public order", which is
much wider than "for maintenance of" public order. If,
therefore, certain activities have a tendency to cause
public disorder, a law penalising such activities as an
offence cannot but be held to be a law imposing
reasonable restriction "in the interests of public order"
although in some cases those activities may not actually
lead to a breach of public order. In the next place
Section 295-A does not penalise any and every act
of insult to or attempt to insult the religion or the
religious beliefs of a class of citizens but it
penalises only those acts of insults to or those
varieties of attempts to insult the religion or the
religious beliefs of a class of citizens, which are
perpetrated with the deliberate and malicious
intention of outraging the religious feelings of that
class. 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. It 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. The calculated tendency of
this aggravated form of insult is clearly to disrupt
the public order and the section, which penalises
such activities, is well within the protection of
clause (2) of Article 19 as being a law imposing
reasonable restrictions on the exercise of the right
to freedom of speech and expression guaranteed
by Article 19(1)(a). Having regard to the
ingredients of the offence created by the
impugned section, there cannot, in our opinion, be
any possibility of this law being applied for
purposes not sanctioned by the Constitution. In
other words, the language employed in the section
is not wide enough to cover restrictions both
within and without the limits of constitutionally
permissible legislative action affecting the
fundamental right guaranteed by Article 19(1)(a)
and consequently the question of severability does
not arise and the decisions relied upon by the
learned counsel for the petitioner have no
application to this case.'
***
12. In Mahendra Singh Dhoni v. Yerraguntla
Shyamsundar [Mahendra Singh
Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC
760 : (2017) 4 SCC (Cri) 153] , the justification for
the registration of an FIR under Section 295-A had
come up for consideration before this Court.
Appreciating the act done by the petitioner
therein, the Court quashed the FIR for an offence
under Section 295-AIPC.
13. If the ratio of the Constitution Bench
[Ramji Lal Modi v. State of U.P., 1957 SCC OnLine
SC 77 : AIR 1957 SC 620] is appropriately
appreciated, the said provision was saved with
certain riders, inasmuch as the larger Bench had
observed that the language employed in the
section is not wide enough to cover restrictions,
both within and without the limits of
constitutionally permissible legislative action
affecting the fundamental right guaranteed by
Article 19(1)(a) of the Constitution. The emphasis
was laid on 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.
***
15. In view of the aforesaid, we allow the writ
petition and quash FIR No. 34 of 2018. We also direct
that no FIR under Section 154 or any complaint under
Section 200 of the Code of Criminal Procedure should be
entertained against the petitioners because of the
picturisation of the song. However, there shall be no
order as to costs."
Notably, this decision rendered by a three-Judge Bench of
this Court was in the context of right claimed under
Article 19(1)(a) of the Constitution, where the offence
alleged was one under Section 295-A IPC. Apart from
quashing the FIR, this Court also directed that no FIR or
complaint should be entertained against the petitioners because
of the picturisation of the song concerned."
9.5. A Division Bench of this Court in an earlier judgment in
the case of THE STATE OF MYSORE v. HENRY RODRIGUES8
holds as follows:
".... .... ....
2. It is not denied that quite a considerable number of
Indians are followers of the Roman Catholic Religion; it is not
disputed that for the purposes of Section 295-A of the Penal
Code, 1860, they are a class of citizens of India. The contention
advanced on behalf of the appellant is, that the offending
articles (all of which have been specified in the charges) have
been written and published by the first accused with the
deliberate and malicious intention of outraging the religious
feelings of the Indian Roman Catholics and that these are
articles which are insulting to the religious beliefs of the Indian
Roman Catholics. The contention advanced by Sri Rai on behalf
of the first respondent is, that all these articles have been
written by the first respondent in a spirit to bring about
reformation and out of a sincere conviction that certain practices
followed by the Roman Catholics and certain superstitious
beliefs entertained by them, are all wholly opposed to what is
stated in the Holy Bible. It is contended by him that as long as
the first respondent is sincere in his conviction that the said
practices and beliefs are against the teachings in the Bible, he
would be justified in attacking the same and that any excesses
in the language used while making such attacks, need not
necessarily be attributable to a malicious intention. But, the
answer of the learned Advocate-General to this stand taken on
behalf of the first respondent is, that the intention of the writer
must be judged primarily by the language of the articles and if
1961 SCC OnLine Kar.138
that language is abusive and calculated to unnecessarily hurt
the feelings of the class against which it is directed or is
insulting to the religious beliefs of that class, then malicious
intention on the part of the writer ought to be inferred.
Before proceeding to consider the respective contentions
above referred to, it would be desirable to refer briefly to the
matters to which these articles generally relate. Sri Rai has
taken us through all the articles, which have been specified in
the charges framed by the trail Court. The subject of the attack
in these articles are certain practices and beliefs of the followers
of the Roman Catholic Religion; the main targets of the attack
are, the worship of Virgin Mary, the observance of the Mass, the
distribution of wafers and obedience to the Pope, the Roman
Church and the priests of that Church. The first respondent
claims to have made a deep study of the Holy Bible and become
convinced that the Bible does not sanction the worship of Virgin
Mary. He admits that Mary is blessed and therefore entitled to
be honoured; but, it is only God that is entitled to worship and
not Mary who was only a human being. His stand is that Jesus
Christ made the supreme sacrifice for all humanity and for all
time to come and that the Bible does not sanction the offer of
any other sacrifice to God. The Mass, transubstantiation and the
distribution of the wafers amongst the devotees which are
practised by the followers of the Roman Church, are all,
according to him, the relics of paganism. The worship and
prayers offered to the images of Mary which have been set up in
ever so many places all over the world, amount, according to
him, to idolatry which has been forbidden by the Bible. The
Institution of Papacy, is not one sanctioned by the Bible.
According to him, the Pope and the Roman Church, have been
encouraging superstitious beliefs, in order to profit themselves;
much of their preachings is opposed to what is stated in the
Holy Bible. The priests of the Roman Church have prevented the
followers of Christianity from correctly understanding the
teachings of Christ. The claim of the first respondent is, that it is
in a sincere attempt to remove these evils and in order to make
the people understand the real teachings of Christ, that he had
made the attacks against the worship of Virgin Mary, and the
superstitious beliefs fostered by the Roman Church and its
priests.
3. These articles which have been specified in the charge,
have all been read out to us by Sri Rai and have been
commented upon by him and by the learned Advocate-General.
There cannot be any doubt that the language used by the first
respondent in most of these articles is abusive, often times
insulting and that it must have caused very great pain to the
followers of the Roman Catholic Church. The learned Assistant
Sessions Judge also, has made it quite clear in a number of
places, in his judgment, that the language used by the first
respondent in many of these articles is vile and insulting. At
para 13 of his judgment, this is what he states:--
"When these fourteen passages are read over,
severally or collectively, either one after the other, or in
a sequence, we get an impression that the accused has
indulged in vile and vitriolic abuses. His expressions are
unbridled. It is natural that the series of invectives
which he has used would pain any orthodox Roman
Catholic."
At para 100 of his judgment, he states as follows:--
"It cannot be denied by the first accused that
Babylon stands for a 'City of idolatrous cults, dissolute
vices, and political oppression'.....................To call the
Roman Church, Babylon is most offensive."
It is in evidence, that the first respondent had been
carrying on his campaign against the Roman Church and
its priests and certain religious beliefs of the Roman
Catholics, since a number of years prior to the complaint
which led to this prosecution of the first respondent for
an offence under Section 295-A of the I.P.C. These
articles are not due to any sudden impulse of the
moment; they are part of a continuous and calculated
campaign against the Roman Catholic Church and the
followers of that Church; they are the result of deliberate
intention on the part of the first respondent. From what is
stated at para 123 of his judgment, it is quite clear that
the learned trial Judge also was satisfied that these
articles have been written by the first respondent, with a
deliberate intention.
4. What has been strenuously urged by the learned
Advocate General is, that the language in some of these articles
is so vile and abusive as to manifest the malicious intention of
the writer to outrage the religious feelings of the followers of the
Roman Catholic Church and to insult their religious beliefs. His
grievance is, that this aspect of the matter has not been
satisfactorily dealt with by the learned Assistant Sessions Judge.
While not disputing the proposition that the entire article should
be read to gather the intention of the writer, he has specially
brought to our notice certain passages in these articles, which
are referred to below.
In the 1958 August issue of the 'Crusader', which is in
Konkani there is an article which has been marked as Ex. P-2
and the English translation of which has been marked as Ex. P-
3. That article is under the title "Honour to Mary or Dishonour?"
That appears to be an article intended to ridicule the worship of
Virgin Mary and it also purports to severely criticize the Roman
Catholic priests for exploiting the ignorant people by falsely
attributing miracles to Mary. The following passages are found
in this article:--
"Taken up with this infidel devotion to Mary, what
a large number of people call upon a dead creature (for
help). The poor dead Mary neither hears nor sees them.
If a thousand people, in a thousand cities use a
thousand rosaries at the same time to say "Hail Mary,
Hail Mary........................" to honour and worship a corpse,
will a single dead creature be able to hear the prayers
and honour uttered by the thousand people in the
thousand cities in a thousand languages (which include
the language of the dumb too)?"
"On the whole, these are means to loot money by
practising meaningless superstitions in the name of
devotion and honour to Mary, a creature............ If she
protects (us), then in a special manner she protects our
priests, nuns, Bishops, Cardinals (and) the Pope because
they are her dallali (paid agents)."
In the same article, later on, after referring to certain alleged
miracles which, according to certain publications in Roman
Catholic papers, had been wrought by Mary, the following
passage is found:--
"These are the wonderful miracles of the Roman
Catholic Lootmar Company for thieving money by
swindling people."
In the 1958 October issue of the "20th Century", which is
marked as Ex. P-4, the first respondent has written an article
under the heading "The Truth Shall Make you Free." The
following passage occurs in that article:--
"Satan through his Roman Church, has corrupted
not only the religious Truth that Lord Jesus Christ and
the Apostles gave the early Church, but also secular
truth--political, sociological, economic, historical,
scientific philosphical, moral, etc. In every domain of
religious and secular truth he has wrought this
corruption through his agents, the priests."
In the same issue, there is another article under the heading
"Mother of Harlots and Her Daughters." The following passages
appear in the said article:--
"Babylon, the Roman Church, must fall and
before Babylon falls, somebody must shoot at her. So
the call to God's people today is to shoot at her, and
spare no arrows."......
"Every man-made Church that organised, after
the Roman Catholic Church. (The mother of harlots) the
six hundred or more other man-made church
organisations that have made their own names, all of
them must come out of Babylon, lest they be partakers
of Babylon's plagues (read Apoc. Rev. 18:4. Jer 51:6, 2
Cro. 6:17 and Zech. 2:7). This is the reason why the
Pope in a recent Broadcast was calling all her daughters
to come to their mother. And the organisations will be
forced to go back to their mother, because the Anti-
christ will give this Harlot church power over the Church
world, to rule the same.".........
"Is it now clear to see every time we assemble
ourselves in an organised Church we are assembling
ourselves in an Harlot Church, or have been born in one
of these churches, we are children of a harlot, born out
of Wedlock, illegitimate, and without even the promise
of God being our father, unless we come out from out of
that organized church and be a separate people."
In the January 1959 issue of the "20th Century" which has been
marked as Ex. P-5, there is an article under the heading "Was
the late Pope Plus XII a man of Peace?" Towards the end of that
article, there occurs the following passage:--
"The Scriptures are very clear. The Roman
Church is clearly described arrayed in purple and scarlet
colour, and decked with gold and precious stones and
pearls, having a golden cup in her hand full of
abominations and filthiness of her fornication......Babylon
the Great. The Mother of Harlots and abominations of
the earth" (Rev. Apoc. 17:4-5)."
5. Even if it were to be accepted that the first
respondent is looking at the above said practices and
beliefs of the followers of the Roman Church, with the
eyes of a reformer and his attacks on the same are due to
his sincere conviction that the said practices and beliefs
are wholly opposed to the teachings of Jesus Christ, there
cannot be any excuse for the vile and highly insulting
language used by him. It may be open to him to put
forward his own views: it may also be open to him while
persuading others to accept his views, to criticize those
practices and beliefs which according to him, do not find
the sanction of the Bible. As observed by the Allahabad
High Court in Kali Charan Sharma v. Emperor [A.I.R. 1927
All. 649.] .
"It must of course be recognized that in countries
where there is religious freedom a certain latitude must
of necessity be conceded in respect of the free
expression of religious opinions together with, a certain
measure of liberty to criticise the religious beliefs of
others."
But, that does not mean that he should indulge in
writing articles in a highly objectionable language
intended to outrage the religious feelings of the followers
of the Roman Catholic Church. As pointed out later in the
abovesaid case, it is contrary to all reason to imagine that
liberty to criticize includes a license to resort to vile and
abusive language. In a subsequent decision of the
Allahabad High Court, Baba Khalil Ahamad v. State [A.I.R.
1960 All. 715.] , their Lordships had occasion to consider
the meaning of the word "malicious" in Section 295-A of
the I.P.C. The view of their Lordships, was expressed as
follows:--
"It, therefore, appears that, in Sec. 295-A,
I.P.C. the word "malicious" has not been used in
the popular sense. In order to establish malice as
contemplated by this section, it not necessary for
the prosecution to prove that, the applicant bore ill
will or enmity against specific persons. If the
injurious act was done voluntarily without a lawful
excuse, malice may be presumed."
It was argued by Sri Rai that in the present case, there
was material to show that there was truth in the first
respondent's allegation that the followers of the Roman
Catholic Church indulged in superstitious beliefs and
practices contrary to the Holy Bible. According to him, the
truth of the allegations, could be an effective defence to a
charge under Section 295-A of the I.P.C. We are unable to
agree with this argument. Such a contention was
considered and rejected by the Allahabad High Court in
the case of Baba Khalil Ahamad v. State [A.I.R. 1960 All.
715.] . Their Lordships observed as follows:--
"The present enquiry has to be confined to
the question whether there was malicious
intention of outraging the religious feelings of a
class of citizens of India. Even a true statement
may outrage religious feelings."
Having regard to the purpose for which Section 295-A of
the I.P.C. has been enacted, we find ourselves unable to
accept the view that a statement which would otherwise
fall within that mischief of Section 295-A, can be taken
out of it merely because is happens to be a true
statement. As contended by the learned Advocate-
General, if the language used transgresses the limits of
decency and is designed to vex, annoy and outrage the
religions feelings of others, then, the malicious intention
of the writer can be inferred from the language employed
by him.
In the present case, the contention advanced on
behalf of the first respondent to the effect that the
statements made by him in these articles were all true, is
found on an examination, to be not a very correct
contention. In the article under the heading "Honour to
Mary or Dishonour?," it is alleged that the followers of
the Roman Catholic Church offer worship and prayer to a
corpse (that is, to the corpse of Mary). This is an
allegation made, without any just or lawful excuse.
Because, by no stretch of imagination can it be said that
in worshipping and offering prayers to Mary, the
followers of the Roman Church actually worshipped a
corpse or a dead body. When the first respondent
concedes that Mary is entitled to honour he cannot be
understood to say that it is the corpse of Mary that is
entitled to honour. There cannot be any doubt that the
statement of the first respondent that the followers of the
Roman Church worship and offer prayers to the corpse of
Mary, is one made without any lawful or just excuse and
intended only to outrage the religious feelings of the
followers of the Roman Catholic Church. Again, the
statement of the first respondent that in the Scriptures
the Roman Church is clearly described as arrayed in
purple and scarlet color, etc., and having a golden cup in
her hand full of abominations, etc., is not true. By giving
reference to Verses 4 and 5 of Chapter 17 of Apocalypse,
the first respondent has attempted to create an
impression that in those Verses the Roman Church has
been described in this manner. The said Verses which
have been pointed out to us (in Douay Version of the Holy
Bible), by the earned Advocate-General are as follows:--
"4 And the woman was clothed round about
with purple and scarlet, and gilt with gold and
precious stones and pearls, having a golden cup in
her hand, lull of the abomination and filthiness of
her fornication."
"5. And on her forehead a name was
written: A mystery: Babylon the great, the mother
of the fornications and the abominations of the
earth."
It is seen that there is absolutely no reference in these
verses, to the Roman Church. Sri Rai was not able to
point out any portion in the Bible where the Roman
Church has been described in such terms. It is quite clear
that the words in these verses in the Bible, have been
taken out of their context and made use of by the first
respondent to describe the Roman Church in such a way
as to insult the Roman Catholic Religion and outrage the
religious feelings of the followers of that Religion. For so
doing, the first respondent had no just or lawful excuse.
In Veerabrahmam v. State of Andhra
Pradesh [A.I.R. 1959 A.P. 572.] the Andhra Pradesh High
Court had occasion to consider whether the writings in a
book called "Bible Bandaram" came within the mischief of
Section 295-A of the Penal Code, 1860. In that case also,
the Court accepted the proposition that the intention of
the author has to be gathered primarily from the
language used. Bhimasankaram J., who dissented from
the other two Judges in that case, took the view that the
material placed in that case was not sufficient to draw
the conclusion that the author was guilty of deliberate
and malicious intention to outrage the religious feelings
of the Christian Community. But, he did not disagree from
the view of the other two learned Judges (Chandra Reddy
C.J. and Srinivasachari J.) on the point, that the intention
is to be gathered mainly from the words used by the
author (See para 58 at page 583 of A.I.R. 1959 Andhra
Pradesh 572).
The learned Counsel for the first respondent sought
to make use of the following observations made by the
Supreme Court in Ramji Lal Modi v. State of U.P. [A.I.R.
1957 S.C. 620.] at page 623:--
"In the next place S. 295-A does not
penalise any and every act of insul to or attempt to
insult the religion or the religions beliefs of a class
of citizens but it penalises only those acts of
insults to or those varieties of attempts to insult
the religion or the religious beliefs of a class of
citizens, which are perpetrated with the deliberate
and malicious intention of outraging the religious
feelings of that class. Insults to religion offered
unwittingly or carelessly or without any deliberate
or malicious intention to outrage the religious
feelings of that class, do not coma within the
section."
Having regard to the fact that repeated attacks couched
in foul language have been made by the first respondent,
we are satisfied that these observations cannot be of any
use to the first respondent.
The worship of Mary by the followers of the Roman
Catholic Church has been characterised by the first respondent,
as the worship of a corpse. The priests of the Roman Church
have been described as her "Dallalies". He has equated the
Roman Church, which is held in great respect by its followers, to
Babylon which was a place of dissolute vices. Passages taken
out of their context from the Bible, have been used to depict the
Roman Church as holding in its hand a cup full of abomination
and filthiness. It has been described as the Harlot Church. The
Pope who is the head of the Roman Church and is held in great
veneration by the Roman Catholics, has been called the Satan
and the Anti-Christ. The Roman catholic priests have been
referred to as "a Lootmar Company" (that is, a company
engaged in looting).
The fact that the first respondent was sincerely
opposed to certain practices and beliefs of the Roman
Catholics (on the ground that the same did not have the
sanction of the Bible), was not a just or lawful excuse for
using such a foul and abusive language. On a carefull
consideration of the entire articles in which the passages
above referred to appear, we are satisfied that it is with
the malicious intention of outraging the religious feelings
of the Roman Catholics and to insult their religion and
religious beliefs that the first respondent has indulged in
these writings.
Courts would do well to take serious note of the
observations made by the Supreme Court
in VeerabadranChettiar v. E.V.
RamaswamiNaickery [A.I.R. 1958 S.C. 1032.] Though
their Lordships were dealing with a case under section
295 of the I.P.C., the following observations made by
them at page 1035 are equally applicable to a case under
Section 295-A of the I.P.C.:--
"The section has been intended to respect
the religious susceptibilities of persons of different
religious persuasions or creeds. Courts have got to
be very circumspect in such matters, and to pay
due regard to the feelings and religious emotions
of different classes of persons with different
beliefs, irrespective of the consideration whether
or not they share those beliefs, or whether they
are rational or otherwise, in the opinion of the
court."
6. A faint attempt was made by Sri Rai to suggest
two other contentions. He hinted in the course of his
arguments that the Court may consider as to whether
Section 295-A of the I.P.C. was consistent with the right
guaranteed under Article 25(1) of the Constitution to
propagate religion. We do not think that there is any
necessity to consider this question as the matter has
been set at rest by the Supreme Court. In Ramji Lal
Modi v. State of U.P. [A.I.R. 1967 S.C. 620.] while
repelling a similar contention, the Supreme Court has
pointed out that the right to freedom of religion assured
by Arts. 25 and 26 of the Constitution has been expressly
made subject to public order, morality and health. The
view taken by the Supreme Court was to the effect that
though Section 295-A was a law creating an offence
relating to religion, it had been enacted in the interests of
Public Order.
The next contention suggested by Sri Rai was that the
publication of each article had to be viewed as a separate
offence and that if so viewed, the charge framed by the trail
Court was not in accordance with Section 234(1) of the Cr. P.C.:
in other words, it was stated that the charge related to more
than three offences. Sri Rai, frankly conceded before us that
there is absolutely no material to indicate that any such
objection had been raised, before the trail Court. He did not also
make any attempt to show that any prejudice had been, thereby
caused to the accused. The first accused knew for what he was
being tried and he had every opportunity to meet the charges.
As a matter of fact, he has defended himself against all the
articles specified in the charge. His defence was of a type that
was, in a way, common to all the offending articles mentioned in
the charge. Under these circumstances we do not find any force
in the said contention.
7. For the reasons above stated, we are satisfied that the
acquittal of the first respondent is wrong and that it should be
set aside.
So far as the second respondent is concerned, it is seen
that he was merely the printer of the offending articles. There is
no charge against him except under Section 295-A read with
Section 109 of the I.P.O. He has stated that he does not
understand Konkani language and that he does not very well
understand English language. It is possible that he was unaware
of the malicious intention of the first accused; it is doubtfull
whether it can be said, in the circumstances of the case, that
the second accused had intentionally abetted the first accused
to commit any offence punishable under Section 295-A of the
I.P.C. The learned Advocate-General also conceded the
possibility of some doubt existing in regard to the position of the
second accused. In these circumstances, we do not think that
we ought to interfere with the acquittal of the second
respondent.
The writing and the publication of any of the
articles above referred to, containing any of the passages
extracted above, is sufficient to render the first
respondent liable to punishment under Section 295-A of
the I.P.C. Though these articles have been written under
different headings, the main subject-matter of their
attack is, in reality, only one; that is, the Roman Church
and certain beliefs and practices of the followers of that
Church. Having regard to this aspect of the matter, it
does not appear to be necessary to convict the first
accused separately for each of these articles and to
award separate sentences; it appears to be sufficient, in
the interests of justice, if there is a single conviction and
sentence. This appeal, in so far as it relates to the first
accused, is allowed and his acquittal is set aside and he is
found guilty under Section 295-A of the I.P.C. for his
having written and published the articles above referred
to, containing the passages extracted above. Having regard to
the fact that he had the good fortune of obtaining an acquittal at
the hands of the trial Court, we think that it is sufficient to
impose merely a sentence of fine on him. He is sentenced to pay
a fine of Rs. 200 and in default of payment of fine, to undergo
simple imprisonment for one month. He is given fifteen days'
time to pay the fine amount.
The appeal, in so far as it relates to the second
respondent, is dismissed."
(Emphasis supplied at each instance)
The law as laid down by the Apex Court and that of this
Court would clearly indicates that in cases where insult does
not lead to disorder, if the act has the propensity to disrupt
public order, it squarely falls within the scope of reasonable
restriction of free speech. Therefore, in the garb of free
speech anything and everything cannot be countenanced.
10. Diving back to the facts obtaining in the case at hand, the
complaint so registered reads as follows:
"From,
Station House officer
C.E.N Police station
Mangaluru
From,
K.Jayaraj Salian
S/o Sesappa Poojari
Kanarpa House,
Kadirudyavara Village,
Belthangady Taluk
(m) 9900799789
Sir,
Subject: In a whatsapp group created obscene photos of
Hindu gods and Political persons and hurted
religious feeling.
I in the above said subject matter is true on date 23.01.2021 in
whatsapp an link is sent in the name of "Bajarangi Go Kallaru",. I don't
know who sent the Link, on pressed the link it joined the above
mentioned group. further in the group continuously the created
obscene photos of Hindu God and Political persons are sent, this group
is created by number 6363551494. Several internet numbers
+1(302)305-0734, +1(208)400-8382, +96597161434, +1(681)484-
0460, +1(208)6451, +1(302) 306-1208, +918073322591 also from
other numbers Hindu god and political persons photos and messages
are been sent. By spreading this group link few person are conspiring
to create communal violence in the society also because of this for me
the insult to the god I pray made me cause mental trauma, hence I
request to investigate and take action against those persons.
Yours Faithfully
K.J Salian
Enclosed: copies of whatsapp group screen shots.
This Complainant came to station on date 25/01/2020 at 16.30 hours
and gave this written complaint, its received and registered as Crime
No 4/2021 under section 67 IT Act, 295(A) IPC Act. An FIR
Registered."
This is carried out in the gist of the crime. It reads as follows:
"10. ಪ ಥಮ ವತ ಾನ ವರ ಯ ವರಗಳ
ಪ ಕರಣದ ಾ ಾಂಶ ೆ ೆಂದ ೆ ಾ ಾರ ಾದ ೆ ಜಯ ಾ! ಾ" ಾ# $%ೈ'
ನಂಬ 9900799789 ೇದರ"* ಾmïì÷àನು, -ೊಂ ರು/ಾ0 ೆ. ಾಂಕ:23-01-2021 ರಂದು ಾmïì÷à
ನ"*, "ಭಜರಂ3 4ೋ ಕಳ5ರು " ಎಂಬ ಗೂ ನ "ಂ7 ಬಂ ದು8, ಸ ಗೂ 4ೆ Join ಆ3ದು8, ಸ "ಂ7
ಾರು ಕ;<ರು/ಾ0 ೆ ಎಂದು =; ರುವ> ಲ*, ಅದರ"* Aರಂತರ ಾ3 Bಂದೂ ೇವರನು, ಮತು0
ಪ ಮುಖ ಾಜDೕಯ ವED0ಗಳನು, ಅF*ೕಲ ಾ3 GಂGಸುವ HೕIೋ -ಾಗೂ ಸಂ ೇಶಗಳನು,
ರ ಾAಸು=0ದು8, ಈ ಗೂ # ರಚ ೆಯನು, $%ೈ' ನಂಬ :6363551494 ¤AzÀ DVgÀÄvÀÛzÉ.
EAlgÀ£Émï £ÀA§æUÀ¼ÁzÀ +1(302)305-0734, +1(208)400-8382, +96597161434,
+1(681)484-0460, +1(208)225-6451, +1(302)306-1208, +918073322591 -ಾಗೂ
EvÀgÉà £ÀA§æUÀ½AzÀ »AzÀÆ zsÀªÀÄð ೇವರುಗಳನು, -ಾಗೂ ಪ ಮುಖ ಾಜDೕಯ ವED0ಗಳ
ಅF*ೕಲ ಾ3 GಂGಸುವ HೕIೋ ರ ಾAಸು=0ದು8, ಇದNಂದ ಾ ಾರರ OಾP ಕ Qಾವ ೆ4ೆ
ಆRತ ಾ3ರುತ0 ೆ. ಈ Nೕ=ಯ ಾmïì÷à ಗೂ S "ಂ7 ಗಳನು, ಸ ಾಜದ"* ಹರU ಗಲQೆ AP ಸಲು
ೆಲವ> ವED0ಗಳ ಹು ಾ,ರ ಾ3ದು8, ಇದNಂದ ಾ ಾರರು ಪVWಸುವ ೇವN4ೆ ಅವ ಾನ
ಆ3ರುವ>ದNಂದ ಾನ<ಕ ಾ3 ಆRತ ಾ3ರುತ0 ೆ. ಆದುದ8Nಂದ ಈ ಗೂ ನ"* ಈNೕ=
ಾಡು=0ರುವರನು, ಪ/ೆ0 ಹYZ ಸೂಕ0 ಾನೂನು ಕ ಮ PÉÊUÉƼÀî¨ÉÃPÁV JA©vÁå¢AiÀiÁVgÀÄvÀÛzÉ.
(ಇದ ೊಂ 4ೆ ಾ ಯ ಮೂಲ ಪ = -ಾಗೂ ಾmïì÷à ಗೂ ನ <[\# ]ಾ^ ಪ =ಯನು,
ಲVÛÃಕN< ೆ)."
Investigation was in progress prior to interdiction by this
Court. The State has produced entire investigation material
before this Court, a perusal of which contains depictions of
Hindu deities in an extraordinarily obscene, demeaning and
profane manner. The content is such that reproduction
thereof, in a judicial order, would itself be inappropriate.
Suffice it to observe that the material on its face has the
tendency to outrage religious feelings and disturb communal
harmony. Whether the petitioner had requisite mens rea,
the extent of his role and the liability of other administrators
are all matters that falls squarely within the domain of
investigation. Premature interdiction by this Court would
amount to stifling a lawful enquiry into allegations of serious
import. I am of the considered view that the offence under
Section 295A of the IPC is met to every word of its
ingredient albeit, prima facie. The matter is still at the stage
of investigation. What could be the outcome of the
investigation is yet to be known. Therefore, this Court
cannot now interdict the investigation of an offence of such
nature. While this Court notes with some concern that the
Investigating Officer appears to have blissfully ignored to
proceed uniformly against all administrators of the group.
However, if the investigation leads to any member being
actively involved in permitting circulation of such pictures,
they must be brought to book. At this investigative stage,
any further observation at the hands of this Court would be
unnecessary.
11. Therefore, finding the petition meritless, as none of the
contentions advanced would hold water and finding prima facie
ingredients being met of the offence under Section 295A of the IPC
or even under the Act, the petition lacking in merit stands
rejected. Since the crime is of the year 2021, the Investigating
Officer shall now conclude the investigation as expeditiously as
possible, without brooking any delay, bearing in mind the
observations made in the course of the order. Ordered accordingly.
Interim order of any kind operating shall stand dissolved.
Consequently, I.A.No.2 of 2024 also stand disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ
