Madras High Court
Franco Rajendra Dev vs R. Abirami on 21 August, 2023
Crl.O.P.No.12376 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.08.2023
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.O.P.No.12376 of 2016
&
Crl.M.P.No.6366 of 2016
1. Franco Rajendra Dev
Correspondent
2. Selvarani
Principal
3. Jeyanthi Sundar
Vice Principal
4. Sherley paul
CEO, SBIOA Educational Trust
5. John Anbalagan
Head master
all petitioners having their office
at No.18, Anna Nagar Western Extension,
Chennai 600 101 ... Petitioners
Vs.
R. Abirami ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the records and quash the complaint in C.C.No.2863 of 2016
on the file of the Metropolitan Magistrate No.XIV, Egmore, Chennai for the
1 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
offences under sections 295A and 298 IPC.
For Petitioner : Mr.A. Ramesh, Senior counsel
for Mr.C.Arun Kumar
For Respondent : Notice served – no appearance
ORDER
This Criminal Original Petition is filed by the petitioners to call for
the records and quash the complaint in C.C.No.2863 of 2016 on the file of
the Metropolitan Magistrate No.XIV, Egmore, Chennai for the offences
under sections 295A and 298 IPC.
2.The learned counsel for the petitioners contended that the
petitioners are correspondent, Principal, Vice Principal, CEO and
Headmaster respectively of SBIOA School, Chennai. The defacto
complainant was employed as a teaching assistant in the said school.
Among the five petitioners, the 4th petitioner/A4 died.
2 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
3. He further contended that the respondent/complainant gave a
complaint against the petitioners before V5 Thirumangalam Police Station
alleging that on 13.3.20212, while the defacto compainant offered secular
prayers (Sarvamadha Prarthanai) for class 12 students, by chanting ''Om
Vigneshwaraya Namaha', the 3rd petitioner tried to remove the mike from
her, in spite of the same, she continued with Christian and Islamic prayers.
Subsequently, the 3rd petitioner switched off the mike and made another
staff to continue the prayers. The 4th and 5th petitioners insulted her infront
of other staffs by closing the four gates of the school on 13.03.2012,
pursuant to which, a case was registered in Cr.No.937 of 2014 for the
offences under sections 295A and 298 IPC. During investigation statements
of various witnesses were recorded under section 164 Cr.P.C., however,
after completing the investigation, the police closed the complaint 'action
has been dropped' and filed closure report before the X Metropolitan
Magistrate. Notice in this regard has also been served on the defacto
complainant. Aggrieved over such closure report, the respondent filed
protest petition before the XIII Metropolitan Magistrate, Egmore, Chennai
3 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
in Crl.M.P.No.133 of 2016 seeking to take cognizance against the accused
for committing the offences under sections 295A and Sec.298 IPC.
Considering the protest petition, the learned XIV Metropolitan Magistrate
Court, Egmore, Allikulam, Chennai, by his order dated 07.04.2016, took
cognizance of the private complaint for the offence under sections 295A
and 298 IPC and the case was taken on file as C.C.No.2863 of 2016.
4. The learned counsel further contended that as per section 196
Cr.P.C., for taking cognizance against a person for the offence under
section 295 A of IPC., previous sanction from the State or the Central
Government is warranted. In this case, no sanction is granted by the
Government for taking cognizance of the offence under section 295 A IPC.
On this ground, the criminal proceedings initiated against the petitioners is
vitiated. He further contended that the the offence under section 298 IPC is
also not made out. The allegation in the complaint in paragraph 3 reflects
no ingredient attracting the offence under section 298 IPC. The Only
allegation against the petitioners is switching of mike while the respondent
4 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
conducting secular prayers and stopped her from continuing prayers.
There is no allegation of deliberate action to wound the religious feelings
of any persons. In the circumstances, the complaint given by the
respondent is unsustainable, hence, continuing the criminal proceedings
against the petitioners is misusing the process of court. Thus, he seeks to
quash the complaint.
4. In support of his contention, he relied upon the following
judgments;
1. Manoj Rai Vs. State of Madhyapradesh, reported in
MANU/SC/0488/1998;
2. I.Periyasamy Vs. State of Tamil Nadu and others, reported in
MANU/TN/3492/2022;
3. Kamal @ Kamalahasan Vs. State of Tamil Nadu, Order of this
Court dated 21.05.2021;
4. Arvind Life Style Brands Vs. Madhavan @ Madhan , order of
this High Court, dated 21.11.2019
5. Shalibadra Shah Vs. Swami Krishna Bharati reported in
MANU/GJ/0159/1980
5 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
6. Malleshappa Vs. Sri Kumar reported in MANU/KA/1128/2015;
7. Aveek Sarkar Vs. State of West Bengal reported in
MANU/WB/0211/2015;
8. Poonam Pandey Vs. S.Umesh reported in MANU/KA/0702/2015;
9. Kamala Kant Singh Vs. MD, Bennet Colman & Co reported in
MANU/UP/0860/1987
5. Though notice has been served on the respondent, there is no
representation for her either in person or through counsel today when the
matter is called.
6. I have considered the matter in the light of the submissions made
by the learned counsel for the petitioners and perused the records.
7. On perusal of records, the fact reveals that the
respondent/complainant was working at SBIOA School as Teaching
Assistant. The allegation in the complaint in paragraph 3 reads as follows;
'3. On 13.03.2012, I was offering secular prayers
along with the students of class 12 at the indoor auditorium
6 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
of the school, on the eve of the said students going tow rite
Chemistry Examination at the center prescribed by CBSE
Board. But when I chanted the stanza OM
VIGNESWARAYA NAMAHA, school's vice-principal
Jayanti Sundar, tried to remove the mike from the hands of
me. Her action was rude. I was surprised and dumb-stuck
and could not understand the behaviour of the vice-
principal. In an instinct action I only resisted the attempt
of the vice-principal's physical imprudence. There was no
oral communication. I resisted seizure of the mike
informing the Vice-principal that the Prayer was not yet
completed and despite this provocation, I did not give up as
the prayer was done for the sake of children and continued
to say the Christian and Islam prayers. The vice-principal
suddenly switched off the mike, but I continued the prayer
without the mike in a still louder voice. Then the Principal
switched on the mike and asked English teacher
Mrs.Vinodhini Prabhakar who is a Christian to resume the
prayers. She resumed Christian prayer. ACCUSED no.4
and 5 also insulted me infront of other teachers y closing
the four gates of the school on 13/3/12..'
7 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
8. Initially, the police registered the case and recorded the statement
of witnesses. After investigation, as they found no case was made out
against the petitioners, they closed the complaint and also sent the closure
report to the Magistrate Court. Aggrieved over such closure report, the
complainant filed a protest petition before the XIII Metropolitan Magistrate
Court, Egmore, Chennai. On hearing the protest petition, the learned Judge
took cognizance of the complaint for the offence under section 295A, 298
IPC on 07.04.2016.
9. According to the learned counsel for the petitioners, as per section
196 Cr.P.C., to charge an individual under section 295 A, it is mandatory
to get previous sanction of the Central Government and the State
Government concerned. Section 196 of Cr.P.C., runs as follows;
'Section 196 Cr.P.C.: Prosecution for offences
against the State and for criminal conspiracy to commit
such offence.
(i) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or
8 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
under section 153A of Indian Penal Code, or section
295 A or sub section (1) of section 505) of the Indian
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 Indian Penal Code (45 of 1860), except with
the previous sanction of the Central Government or of
the State Government.'
10. In this case, no sanction has been obtained. On perusal of the list
of documents, no sanction order from State or Central Government was not
enclosed.
11.The Honourable Supreme Court in the case of Manoj Rai Vs.
State of Madhyapradesh, reported in MANU/SC/0488/1998 held that for
prosecuting offence under section 295A IPC, sanction is required under
section 196 Cr.P.C. For want of sanction from the Government as required
under section 196 Cr.P.C., the prosecution of offence under section 295 A
9 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
IPC was quashed. The same legal principle was followed by other High
Courts in rest of the cases cited supra..
12. Further, with regard to other offence under section 298A IPC, on
perusal of complaint averments, it is seen that there is no allegation of
deliberate intention upon the accused persons to wound the religious
feelings of the respondent/complainant so as to attract offence under
section 298-A IPC. In the complaint averment, it was only stated that the
3rd respondent 'switched off the mike' and stopped the respondent from
continuing with the prayers. Apart from this, there is no specific allegation
attracting the ingredients of section 298-A IPC.
13. In the circumstances, in the absence of sanction from State or
Central Government, as required under section 196 Cr.P.C., taking
cognizance against the petitioners under section 295-A is unsustainable.
Further the requirement of 298 A IPC is also not fulfilled in the complaint.
The ingredients set out in section 298 A IPC is not present in the complaint
10 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
averments. In such circumstances, the impugned criminal proceedings in
C.C.No2863 of 2016 is a clear abuse and misuse of process of court.
Therefore, the criminal proceedings pending on the file of XIV
Metropolitan Magistrate, Egmore, Chennai is liable to be quashed.
Accordingly, it is quashed. The Criminal original petition is allowed.
Consequently, the connected miscellaneous petition is closed.
21.08.2023
Index: Yes/No
Internet: Yes/No
msr
To
The Metropolitan Magistrate No.XIV, Egmore, Chennai
11 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12376 of 2016
V.SIVAGNANAM, J.,
msr
Crl.O.P.No.12376 of 2016
&
Crl.M.P.No.6366 of 2016
21.08.2023
12 of 12
https://www.mhc.tn.gov.in/judis
