Bombay High Court
Abdul Salam Abdul Qayyum And Another vs The State Of Maharashtra And Another on 11 April, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.261 OF 2022
ABDUL SALAM S/O ABDUL QAYYUM
AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
.....
Advocate for Applicants : Mr. S. B. Bhakariya h/f Mr. M. M. Shaikh
APP for Respondents-State : Mr. B. V. Virdhe
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving the Order :
28-03-2022
Date of Pronouncing the Order :
11-04-2022
ORDER :
1. The applicants are apprehending their arrest in connection with Crime No.644 of 2021, registered with Nanalpeth Police Station, Parbhani, District Parbhani, for the offence punishable under Section 188, 153-A, 505 (1) of IPC and under Section 135 of Maharashtra Police Act.
2. Heard learned Advocate Mr. S. B. Bhakariya holding for Mr. M. M. Shaikh for applicants and learned APP Mr. B. V. Virdhe for respondents-State. In order to cut short, it is stated that both of them ::: Uploaded on - 11/04/2022 ::: Downloaded on - 12/04/2022 10:03:53 ::: 2 ABA 261-2022 have made submissions in support of their respective contentions.
3. Perusal of the FIR would show that it has been lodged by Police Head Constable Shviaji Vithalrao Takras attached to Nanapeth Police Station. He submits that the Muslim organizations in Parbhani had organized a rally as well as protest on 06-12-2021 as a token of demolition of Babri Masjid in Ayodhya (Uttar Pradesh) on 06-12- 1992. They also had the plan to give representation to Collector, Parbhani. Thereafter, the reputed persons, officials of political party connected to Muslim community were called in the police station and appeal was made to them to keep law and order situation. Collector, Parbhani had then promulgated order under Section 37 (1) (3) of the Maharashtra Police Act, and thereafter, prohibited five or more persons to come together for any kind of celebration. However, between 23.00 hours on 05-12-2021 to 05.00 a.m. on 06- 12-2021, the district president of the institution by name Popular Front of India, Abdul Salam Abdul Khayum i.e. applicant No.1, Secretary of the said institution Mohammod Javed Ansari i.e. present applicant No.2 and five to six persons came together at Kadrabad Masjid and put posters in Hindi as well as Urdu language stating that they will not forget the demolition of Babri Masjid. Those posters ::: Uploaded on - 11/04/2022 ::: Downloaded on - 12/04/2022 10:03:53 ::: 3 ABA 261-2022 were displayed at different places in Parbhani. The informant and other police persons were patrolling, and therefore, when they saw those posters, they took them in possession and then the informant says that the offence has been committed by the applicants and other persons.
4. At the outset, it is to be noted that the contents of the FIR do not disclose that the informant had seen the applicants displaying those posters. If they were displaying those posters, then why the informant and other police persons along with him had not resisted them, is a question. Merely because names would have been mentioned on the posters, it cannot be said that those posters were displayed by the present applicants. Another fact to be noted is that before the general public can see those posters, it appears that the police had removed it. Then where was the evidence to create hatred between the two groups of the religion attracting ingredients of Section 153-A of the IPC. As regards the Section 188 of IPC is concerned, it deals with disobedience to order duly promulgated by public servant. Though the precautionary orders might have been promulgated by the District Magistrate (Collector), yet neither from the contents of the FIR nor from the statements of the witnesses it ::: Uploaded on - 11/04/2022 ::: Downloaded on - 12/04/2022 10:03:53 ::: 4 ABA 261-2022 can be seen that they had seen the applicants doing the said act. The statements of witnesses those are the police persons would also show that though the posters could be seen by the patrolling party, it is then stated that they came to know that the said act of display of the posters is concerned, has been done by the applicants. They do not have first hand information. There is no direct evidence at this stage which could attract ingredients of Section 188 of IPC. Section 505 (1) of IPC deals with statements conducing to public mischief. We will have to consider Section 196 of Cr.P.C. which deals with prosecution for offences against the State and for criminal conspiracy to commit such offence. It prescribes that :-
"No Court shall take cognizance of -
(a) any offence punishable under chapter VI or under Section 153-A, Section 295-A and Sub-section (1) of Section 505 of IPC.....
except with the previous sanction of the Central Government or of the State Government or of the District Magistrate."
The present offence came to be lodged on 06-12-2021 and the police papers do not show that till today any such attempt has been made by the Investigating Officer to seek permission under Section 196 of Cr.P.C. Therefore, taking into consideration all these aspects, ::: Uploaded on - 11/04/2022 ::: Downloaded on - 12/04/2022 10:03:53 ::: 5 ABA 261-2022 the applicants deserve to be released on anticipatory bail. Hence, following order.
ORDER
1) Application is hereby allowed.
2) In the event of arrest of the applicants Abdul
Salam s/o Abdul Qayyum and Mohammad Jawed s/o Mohammad Shabbir Ansari, in connection with Crime No.644 of 2021, registered with Nanalpeth Police Station, Parbhani, dated 06-12-2021, for the offence punishable under Section 188, 153-A, 505 (1) of IPC and under Section 135 of Maharashtra Police Act, they be released on P.R. Bond of Rs.30000/- with two solvent sureties of Rs.15000/- each.
3) The applicants shall not tamper with the evidence of prosecution any manner.
4) They shall attend the concerned police station on every Wednesday and Sunday in between 10.00 a.m. to 02.00 p.m. till further orders.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-.
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