Telangana High Court

Malipatlollta Panduranga Reddy vs The State Of Telangana on 7 November, 2022

Bench: G.Radha Rani

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

           CRIMINAL REVISION CASE No.21 of 2020

ORDER:

This criminal revision case is filed by the petitioner-accused

against the order dated 18.11.2019 in Crl.M.P. No.1304 of 2019 in CC

No.114 of 2018 passed by the Judicial Magistrate of First Class, at

Zaheerabad in dismissing the discharge petition filed by the petitioner

under Section 239 Cr.P.C.

2. Heard Sri Ch.Ravinder Reddy, learned counsel representing

Sri N. Manohar, learned counsel for the petitioner and the learned

Additional Public Prosecutor for the respondent-State.

3. The learned counsel for the petitioner submitted that the

petitioner was arrayed as an accused in Crime No.70 of 2017 dated

25.08.2017 registered by Police, Hadnur for the offence under Section

3 (1) (r) and (s) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2015 (for short 'SC & ST

(PoA) Amendment Act'). As per the complaint, on 25.08.2017 at

20.30 hours, the SC Madiga Community people of Basanthpur Village

came to police station and lodged a report stating that, four days prior Dr.GRR,J ::2:: Crlrc No.21 of 2020

to that day, a tom tom was made in the village by beating drums for

conducting Grama Sabha in the village. On 25.08.2017 at 10.00 AM

Grama Sabha was conducted. All the villagers attended it. While

they were discussing about the village issues, during the said

discussion, the petitioner, who was the then Sarpanch, asked them as

to who their God was and why they were offering prayers to Lord

Jesus Christ and abused them in filthy language in public by taking

their caste name and insulted them. Basing on the said report, the

above case was registered. Subsequently, as per the orders of the

Superintendent of Police, investigation was entrusted to the Sub

Divisional Police Officer. The SDPO recorded the statements of the

witnesses under Section 161 Cr.P.C. He sought the opinion of the

Public Prosecutor of the Court of Special Judge for SC and ST Act

cum V Additional District Judge for proceeding with further

investigation in the matter and the Public Prosecutor opined that the

SC and ST Act would not attract against the petitioner and that it

could be referred as 'Mistake of Fact'. On perusal of the said opinion,

the DIG issued proceedings dated 26.02.2018 instructing the

Investigating Officer to conduct investigation with regard to

culpability of the petitioner under Section 295 A IPC. On the Dr.GRR,J ::3:: Crlrc No.21 of 2020

instructions of the DIG, the Investigating Officer found that the

offence under Section 295A IPC was attracted to the case and altered

the Section of law from Section 3 (1) (r) (s) of SC and ST (PoA)

Amendment Act to Section 295 A IPC and filed charge sheet against

the petitioner for the offence under Section 295A IPC.

4. The case was taken cognizance by the Judicial Magistrate of

First Class, Zaheerabad for the offence under Section 295A IPC on

02.04.2018. At the time of framing of charges, the petitioner-accused

filed a petition under Section 239 Cr.P.C., requesting the court to

discharge him from the case in CC No.114 of 2018.

5. Notice was issued to the learned Assistant Public Prosecutor of

the said Court. He filed counter contending that the statements of the

witnesses and the panchanama conducted at the scene of offence

would establishe the offence under Section 295 IPC and it was

premature to discharge the petitioner-accused. On hearing both the

learned counsel for the petitioner and the learned Assistant Public

Prosecutor, the trial court dismissed the petition.

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6. Aggrieved by the said dismissal, the petitioner-accused

preferred this revision contending that the trial court ought to have

seen that a false case was filed by the police under political pressure

against the petitioner without considering that the statements of the

witnesses recorded under Section 161 Cr.P.C. would not attract the

alleged offence under Section 295A IPC. The court below ought to

have seen that originally the crime was registered for the offence

under Section 3 (1) of the SC and ST (PoA) Amendment Act, 2015

and later it was altered to the offence under Section 295A IPC. None

of the witnesses stated before the police any incriminating evidence

attracting the offence under Section 295A IPC against the petitioner.

The court below failed to consider that while taking cognizance for

the offence under Section 295A IPC, sanction of the State

Government was mandatory under Section 196 Cr.P.C. In the case on

hand, there was no such sanction obtained before charging the

petitioner-accused for the said offence. On this ground alone, the

petition was liable to be allowed. The court ought to have seen that

when the offence under Section 3(1) (r) of the SC and ST (PoA)

Amendment Act was deleted by the Investigating Officer and the

charge under Section 295-A IPC was illegal and contrary to the Dr.GRR,J ::5:: Crlrc No.21 of 2020

record, continuing the prosecution was nothing but abuse of process of

law and prayed to set aside the order dated 18.11.2019 in Crl.M.P.

No.1304 of 2019 in CC No.114 of 2018 passed by the Judicial

Magistrate of First Class, Zaheerabad.

7. Perused the record and the order of the trial court in Crl.M.P.

No.1304 of 2019. The trial court observed that it was borne by record

that the offence under Section 3 (1) (r) and (s) of the SC and ST (PoA)

Amendment Act, 2015 was deleted by the Investigating Officer and

the offence under Section 295 A IPC was charged against the

petitioner and filed the police report. The then Presiding Officer of

the Court had taken cognizance of the offence under Section 295A

IPC. The petitioner attended the court after receipt of summons. The

trial court after extracting the 161 Cr.P.C. statement of LW.1 Ramesh,

observed that the material submitted by the prosecution along with the

charge sheet was sufficient to presume that the petitioner was alleged

to have involved in the offence. It also further observed that it was

borne out by the record that prior to taking cognizance of the offence

under Section 295A IPC, sanction of State Government was

mandatory under Section 196 Cr.P.C.

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8. The trial court referred to various citations filed by the learned

counsel for the petitioner and stated that the said citations were

supporting his arguments. It further observed that as already

cognizance was taken by the then Magistrate of the court, that stage

had already gone and the court below being a Magistrate court could

not review or revise its own order. According to Section 239 Cr.P.C.,

the accused could be discharged when the entire material of

prosecution was found to be groundless, but when there were

irregularities in taking cognizance of the offence, the remedy of the

accused was elsewhere. As the allegations in the police report and the

statement of LW.1 were sufficient to proceed further in the case, the

charge could not be said to be groundless and dismissed the petition.

9. Section 295A IPC reads as under:

"295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or reli- gious 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."

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10. Section 196 Cr.P.C. mandates for prosecuting the offence under

Section 295A IPC, sanction of Central or of the concerned State

Government or of the District Magistrate is necessary. Section 196

Cr.P.C. 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 153A, of Indian Penal Code, or 2 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.

(1A) 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 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."

11. The learned counsel for the petitioner relied upon the judgment

of the Hon'ble Apex Court in Manoj Rai and others v. State of

M.P.1 wherein it was held that:

(1999) 1 SCC 728 Dr.GRR,J ::8:: Crlrc No.21 of 2020

"In the absence of sanction under Section 196(1) Cr.P.C. for prosecution under Section 295A IPC, proceedings must be quashed."

12. He also relied upon a judgment of the Hon'ble Apex Court in

Mahendra Singh Dhoni v. Yerraguntla Syhamsundar and

another2, wherein it was held that:

"6. On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty."

13. Thus, when the sanction of the Central Government/State

Government/District Magistrate was mandatory under Section 196

Cr.P.C. for taking cognizance of the offence under Section 295A IPC,

the observation of the trial court is not in accordance with law.





    (2017) 7 SCC 760
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