Moh. Shahid Ansari vs The State Of Madhya Pradesh
2024 Latest Caselaw 14194 MP

Madhya Pradesh High Court

Moh. Shahid Ansari vs The State Of Madhya Pradesh on 15 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                            1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 15th OF MAY, 2024
            MISC. CRIMINAL CASE No. 44348 of 2020

BETWEEN:-

1.    MOH. SHAHID ANSARI S/O HAJI ABDUL
      AJEEJ ANSARI, AGED ABOUT 56 YEARS,
      OCCUPATION: BUILDER GRAM KARAHIYA
      NO. 1 THANA CHORHATA TEH. HUZUR
      DIST. REWA (MADHYA PRADESH)
2.    SHOUKAT ULLA H KHAN S/O LATE
      SAMEER ULLA KHAN, AGED ABOUT 40
      YEARS, OCCUPATION: TEACHER 30/52,
      KATRA, NEAR YASIN MASJID, PS. CITY
      KOTWALI, TEH. HUZUR, DISTT. REWA,
      M.P. (MADHYA PRADESH)
                                                   .....PETITIONER
(BY SHRI SHEETLA PRASAD TRIPATHI - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH THR.
      GRAH MANTRALAY VALLABH BHAWAN
      BHOPAL (MADHYA PRADESH)

2.    DISTRICT POLICE COMMISSIONER REWA
      DISTT. REWA, M.P. (MADHYA PRADESH)

3.    POLICE INSPECTOR P.S. CITY KOTWALI
      DISTT. REWA, M.P. (MADHYA PRADESH)
                                                 .....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)

      This application coming on for admission this day, the court
passed the following:
                                     2


                                     ORDER

1. This application under section 482 Cr.P.C. has been filed seeking the following reliefs :-

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2. It is submitted by counsel for the applicant that one group in the name of Muslim Rastriya Swayam Sewak Sangh (M-RSS) was formed and the applicant No.1 is the Convenor and applicant no.2 is the Joint Convenor of the said group. It is submitted that the aforesaid Group is not a registered group. One WhatsApp group of which the applicants are the Admins with 6 others has been created in which 127 persons are the members. One minor boy, aged 17 years, who is also a member of the WhatsApp group named as M-RSS Ghoghar (Rewa) unit uploaded a video of 33 seconds projecting that one Mosque situated in Allahabad, in respect of which case is pending for the last 20 years, has been demolished by the Modi Government and, therefore, the said video should be made viral. It is submitted that immediately Shahid, who is head of the I.T. Cell of the M-RSS Ghoghar (Rewa) unit group

issued a message that it is a fake news, therefore, it should be deleted. It is submitted by counsel for the applicant that since this incident took place in the year 2020 and at that time, the Admins had no facility to delete the post uploaded by any other member, and, therefore, neither the applicants nor the other Admins of the M-RSS Ghoghar (Rewa) unit had any opportunity to delete the video uploaded by the minor member of the group. It is submitted that merely because the applicants were the Admins of the Whatsapp group, namely M-RSS Ghoghar (Rewa) unit, they cannot be made vicariously liable for the activities of its members. To buttress his contention counsel for the applicant has also relied upon the judgment passed by the Bombay High Court in the case of Kishor Vs. State of Maharashtra, decided on 1.3.2021 in Criminal Application (APL) No.573/2016 and judgment passed by the Delhi High Court in the case of Ashish Bhalla Vs. Suresh Chawdhary & Ors. decided on 29.11.2016 in CS(OS) No.188/2016.

3. Per contra, it is submitted by Counsel for the State that the applicant has not filed the complete WhatsApp messages to show that the WhatsApp message was immediately deleted by the member who had uploaded the same. It is further submitted that the applicants are running a self created group in the name of M-RSS without getting it registered and they have also created a WhatsApp group in the name of M-RSS Ghoghar (Rewa) unit and have also added the minors as their members. It is further submitted that it is well established principle of law that investigation should not be stifled in the midway and the police should not be restrained from collecting the evidence.

4. In the FIR it was alleged by the complainant that a fake and objectionable video was uploaded on the WhatsApp group of M-RSS Ghoghar (Rewa) unit with an intention to disrupt the harmony as well as to promote enmity between different groups on the ground of religion as well as it also amounts the deliberate and malicious act intending to outrage the religious feelings of class by insulting its religion or religious belief. It is submitted that it is not the case of the applicants that the video uploaded by one of the member of the M-RSS Ghoghar (Rewa) unit was not fake, but in fact by uploading a fake as well as concocted video, an attempt was made to promote enmity between the two religions as well as to disrupt harmony.

5. Counsel for the applicants was not in a position to tell about the status of the investigation and was also not in a position to submit as to whether the charge-sheet has been filed or not. Therefore, this case shall be considered strictly on the basis of the allegations made in the FIR.

6. Heard the learned counsel for the parties.

7. It is not the case of the applicants that the video which was uploaded on their WhatsApp group was a genuine one, on the contrary, it is the case of the applicants themselves that the video which was uploaded on their WhatsApp group was a fake one.

8. Now, the only contention of counsel for the applicants is that merely because the applicants were the Admins, therefore, they cannot be made an accused.

9. Since it is not known as to whether the charge-sheet has been filed or not, therefore, this application is being decided under a belief that the investigation is pending.

10. The Supreme Court in the case of Vinod Raghuvanshi Vs. Ajay Arora and others, reported in (2013) 10 SCC 581 has held that the investigation should not be stifled in the midway and an unborn baby should not be killed and the police should not be restrained from collecting evidence.

11. The Supreme Court in the case of Teeja Devi @ Triza Devi v. State of Rajasthan and others, reported in (2014) 15 SCC 221 has held as under :-

5. It has been rightly submitted by the learned counsel for the appellant that ordinarily power under Section 482 CrPC should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of CrPC. As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with the investigation is not proper and it can be done only in the rarest of rare cases where the court is satisfied that the prosecution is malicious and vexatious.

12. The Supreme Court in the case of State of Telangana v. Managipet, reported in (2019) 19 SCC 87 has held as under :-

33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence.

Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

13. The Supreme Court in the case of State of T.N. v. S. Martin, reported in (2018) 5 SCC 718 has held as under :

7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for. Presence of two crucial facts was enough to let the investigation go on, namely, recovery of huge amount of cash of Rs 7.2 crores from the house of one of the accused and that such recovery was accepted by the accused. The explanation given by them about the alleged transaction of agreement of sale and receipt of cash in pursuance thereof does not prima facie appear to be correct. The agreement is stated to have been entered on 2-3-2012 while the stamp paper in question was issued by the relevant department on 9-3-2012 to the vendor which was later sold to lady named Vimla on 13-3-2012.

Whether the possession of huge cash amounting to Rs 7.2

crores can be explained by the accused and whether such explanation be accepted or not, are all matters which will be gone into at the relevant stage in the proceedings. The investigation in any case ought not to have been set at naught but it ought to have been permitted to be taken to its logical conclusion.

14. The Supreme Court in the case of State of Orissa v. Ujjal Kumar Burdhan, reported in (2012) 4 SCC 547 has held as under :-

8. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.

9. In State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : (1982) 3 SCR 121] , emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus: (SCC pp. 597-98, paras 65-66) "65. ... An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may

succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed. ...

66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. ... If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence."

(emphasis supplied)

10. On a similar issue under consideration, in Jeffrey J.

Diermeier v. State of W.B. [(2010) 6 SCC 243 : (2010) 3 SCC (Cri) 138 : (2010) 2 SCC (Civ) 656] , while explaining the scope and ambit of the inherent powers of the High Court under Section 482 of the Code, one of us (D.K. Jain, J.) speaking for the Bench, has observed as follows: (SCC p. 251, para 20) "20. ... The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed by the High Court under the said

provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."

15. The Supreme Court in the case of Jitul Jentilal Kotecha v. State of Gujarat, reported in (2022) 13 SCC 652 has held as under :-

29. Recently, in Mahendra K.C. v. State of Karnataka [Mahendra K.C. v. State of Karnataka, (2022) 2 SCC 129 : (2022) 1 SCC (Cri) 401] this Court has reiterated the well-settled test to be applied by the High Court for exercise of its powers under Section 482 for quashing an FIR : (SCC p. 142, para 16)

"16. ... the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of trial."

16. The Supreme Court in the case of State v. M. Maridoss and another, reported in (2023) 4 SCC 338 has held as under :-

7. From the impugned judgment and order [M. Maridoss v. State, 2021 SCC OnLine Mad 13703] passed by the High Court and the reasoning given by the High Court, it appears that the High Court has quashed the criminal proceedings as if the High Court was conducting the mini trial. The scope and ambiguity of powers to be exercised under Section 482CrPC has been elaborately dealt with and considered by this Court in Neeharika

Infrastructure [Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, (2021) 19 SCC 401 : 2021 SCC OnLine SC 315] . In SCC para 13, it is observed and held as under :

(Neeharika Infrastructure case [Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, (2021) 19 SCC 401 : 2021 SCC OnLine SC 315] ) "13. From the aforesaid decisions of this Court, right from the decision of the Privy Council in Khawaja Nazir Ahmad [King Emperor v. Khawaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-44) 71 IA 203] , the following principles of law emerge:

13.1. Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences.

13.2. Courts would not thwart any investigation into the cognizable offences.

13.3. However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on. 13.4. The power of quashing should be exercised sparingly with circumspection, in the "rarest of rare cases".

(The rarest of rare cases standard in its application for quashing under Section 482CrPC is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court). 13.5. While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint.

13.6. Criminal proceedings ought not to be scuttled at the initial stage.

13.7. Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule. 13.8. Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent

power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482CrPC.

13.9. The functions of the judiciary and the police are complementary, not overlapping.

13.10. Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences.

13.11. Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.

13.12. The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure.

13.13. The power under Section 482CrPC is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court.

13.14. However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in R.P. Kapur [R.P. Kapur v. State of Punjab, AIR 1960 SC 866] and Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC

335 : 1992 SCC (Cri) 426] , has the jurisdiction to quash the FIR/complaint; and 13.15. When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482CrPC, only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."

8. Even otherwise, it is a settled position of law that while exercising powers under Section 482CrPC, the High Court is not required to conduct the mini trial. What is required to be considered at that stage is the nature of accusations and allegations in the FIR and whether the averments/allegations in the FIR prima facie disclose the commission of the cognizable offence or not.

9. Under the circumstances, the impugned judgment and order passed by the High Court, which is just contrary to the decision of this Court in Neeharika Infrastructure [Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, (2021) 19 SCC 401 : 2021 SCC OnLine SC 315] and the other decisions on the point, is unsustainable.

17. Under these circumstances, where prima facie the offence was committed by one of the member of the WhatsApp Group, then whether the applicants were sharing common object etc. are certain aspects which are to be taken note of by the Investigating Agency. If the applicants were sharing common object then they cannot say that they cannot be prosecuted. It is not the case of the applicants that they had rebutted the fake video by posting on their WhatsApp group that it is a fake video or they opposed the fake video. Once the applicants did not rebut the fake video by uploading their message on their group,

then for the sake of registration of FIR it can be inferred that the applicants were also sharing common object.

18. Under these circumstances, no case is made out warranting interference.

19. The application fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2024.05.17 16:14:19 +05'30' HS