Chattisgarh High Court
Khalid Memon vs State Of Chhattisgarh 13 Wpcr/120/2020 ... on 20 May, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.119 of 2020
Order reserved on: 6-3-2020
Order delivered on: 20-5-2020
Khalid Memon, S/o Ibrahim Memon, aged about 35 years, R/o Sadar
Bazaar, Champa, District Janjgir-Champa (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through Secretary, Department of Home,
Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, District Raipur
(C.G.)
2. Superintendent of Jail, Janjgir, District Janjgir-Champa (C.G.)
3. Station House Officer, Champa, District Janjgir-Champa (C.G.)
---- Respondents
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For Petitioner: Mr. Sumit Singh, Advocate. For Respondents / State: -
Mr. Mateen Siddiqui, Deputy Advocate General.
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Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order
1. The petitioner is an accused against whom offences punishable under Sections 294, 506, 323, 295A read with Section 34 of the IPC and Section 25 of the Arms Act, 1959 have been registered by Police Station Champa under FIR No.428/2019. He seeks to challenge the FIR only confining to the registration of offence punishable under Section 295A of the IPC stating inter alia that accepting the contents of the FIR as it is, no offence under Section 295A of the IPC is made out against him, as there is no whisper or any ingredients in the said FIR, therefore, the FIR to the extent of registration of offence against him 2 under Section 295A of the IPC be quashed.
2. Reply has been filed by the State / respondents alleging that offence has been registered and investigation is still in progress and as such it cannot be held that no offence under Section 295A of the IPC is made out against the petitioner.
3. Mr. Sumit Singh, learned counsel appearing for the petitioner, would submit that taking the allegations of the FIR as it is, no offence under Section 295A of the IPC is made out against the petitioner. He relied upon the judgments of the Supreme Court in the matters of Ramji Lal Modi v. State of U.P.1, Mahendra Singh Dhoni v. Yerraguntla Shyamsundar and another2 and Priya Prakash Varrier and others v. State of Telangana and another3 to buttress his submission.
4. Mr. Mateen Siddiqui, learned Deputy Advocate General appearing for the State / respondents, would oppose the submission of learned counsel for the petitioner and would submit that investigation is under progress and still the allegations have to be investigated as such, at present, it cannot be concluded that no case under Section 295A of the IPC is made out against the petitioner and as such, the writ petition deserves to be dismissed.
5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection.
6. Section 295A of the IPC states as under:-
"295A. Deliberate and malicious acts, intended to outrage 1 AIR 1957 SC 620 : 1957 Cri LJ 1006 2 (2017) 7 SCC 760 3 (2019) 12 SCC 432 3 religious feelings or 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."
7. The Government by Section 2 of Act XXV of 1927 for the first time introduced Section 295A in the IPC and the Select Committee in their report behind enactment of that section stated that;
"The essence of the offence is that the insult to religion or the outrage to religious feelings must be the sole or primary or at least the deliberate and conscious intention. Further we were impressed by an argument to the effect that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measures of social reform by administrating such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. We have, therefore, amplified the words 'deliberate intention' by inserting reference to malice and we think that the Section which we have now evolved will be both comprehensive and at the same time not too wide an application."
(Emphasis supplied)
8. It is general rule of interpretation that legislative intention is an effective instrument to understand the scope and ambit of a particular section and while applying the section both in its letter and spirit, judicial attempt must be to honour the legislative intention.
9. The constitutional validity of Section 295A of the IPC came to be considered by the Constitution Bench of the Supreme Court in Ramji LaL Modi (supra) in which it has been held as under: -
"8. It is pointed out that Section 295-A has been included in Chapter XV, Penal Code which deals with offence relating 4 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 5 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 learned counsel for the petitioner have no application to this case."
10. The principle of law laid down in Ramji LaL Modi (supra) was followed with approval by the Supreme Court in Mahendra Singh Dhoni (supra) in which it was held as under: -
"6. On a perusal of the aforesaid passages, it is clear as crystal that Section 295-A 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 a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious 6 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."
11. The principle of law laid down in Ramji LaL Modi (supra) and Mahendra Singh Dhoni (supra) was followed with approval by the Supreme Court in Priya Prakash Varrier (supra) in which it was held as under: -
"10. On a keen scrutiny of Section 295-A and the view expressed by the Constitution Bench in Ramji Lal Modi (supra), we do not find that the said provision would be attracted in the present case. We are inclined to think so, for the picturisation of the said song solely because of the "wink"
would not tantamount to an insult or attempt to insult the religion or the religious beliefs of a class of citizens. The said song has been on You Tube since February, 2018. We do not perceive that any calculated tendency is adopted by the petitioners to insult or to disturb public order to invite the wrath of Section 295-A IPC.
13. If the ratio of the Constitution Bench 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.
14. As we perceive, the intervenor, who was an informant in FIR No.34 of 2018, in all possibility has been an enthusiast to gain a mileage from the FIR, though the same 7 was really not warranted. What is urged before us is that picturisation which involves the actress with a wink is blasphemous. Barring that there is no other allegation. Such an allegation, even if it is true, would not come within the ambit and sweep of Section 295-A IPC, as has been explained in Ramji Lal Modi (supra)."
12. Reverting to the facts of the case, in light of the legal principles enunciated by the Supreme Court in the above-stated judgment, it would be appropriate to notice the contents of the FIR dated 21-12- 2019, which state as under: -
eSa okMZ dz- 05 pkaik esa jgrk gwa] MkYMk TosylZ dk O;olk;h gwa fd fnukad 21-12-19 dks cq/k dzekad 10 ifjlj esa [kkfyV eseu }kjk cn~rehth ls ckr djrs gq, xanh xanh /kkfeZd xkyh nsrs gq, gkFk eqDds ls ekjihV fd;k gS ,oa bczkfge eseu ,d yksds ds ryokjeqek oLrq ysdj eq>s ekjus ds fy, nkSM+k;k ftlds laca/k esa ,d fyf[kr vkosnu is'k dj ugk gwa d`i;k mfpr dk;Zokgh djus dh d`ik djsa izfr] Fkkuk izHkkjh pkaik ftyk tkatxhj pkaik fo"k; okMZ dz-7 esa esjs lkFk bczkfge eseu ,oa mldk csVk eksa [kkyhn eseu ds }kjk ekjihV djus ij fjiksVZ ntZ djus ckcr~ egksn;] eSa nhid xqIrk firk Lo- Jh v'kksd xqIrk lkfdu pkaik MkyMk TosylZ dk O;olk;h gwaA vkt fnukad 21-12-19 dks 'kke 04%00 cts eSa vius fe= jkts'k vxzoky ds lkFk Fkk blh chp Qksu ds ek/;e ls xksfoan nsokaxu ik"kZn izR;k'kh okMZ dz- 7 pkaik ds }kjk jkts'k vxzoky dks crk;k fd bczkfge eseu us esjs lkFk cqFk dz- 10 ifjlj esa ekjihV dj pksV igqapk;k gS vki ?kVuk LFky ij tYnh igqapsA rc eSa jkts'k vxzoky ds lkFk iq=h 'kkyk ds ckgj igqapkA ogka ij bczkfge eseu vius iq= eks- [kkyhn eseu ds lkFk [kM+k FkkA jkts'k vxzoky dks ns[kdj [kkfyn eseu us /kM+drs gq, dgk fd rqe ;gka D;ksa vk;s gks rqEgkjk ;gka D;k dke gS eSaus [kkyhn dks le>k;k fd cM+ks ls cn~rehth ls ckr ugha djrs] rc [kkyhn eq>s eknjpksn fgUnq cfu;k rw eq>s D;k le>k;sxk fgUnqvksa dh D;k vkSdkr gS dgdj xanh xanh /kkfeZd xkyh nsrs gq, [kkyhn us gkFk eqDds ls ekjk ftlls esjs gksB ds mij lkbM pksV yxh ,oa esjk iguk gqvk diM+k Hkh QV x;k blds ckn bczkfge eseu ,d yksgs dk ryokjuqek oLrq ysdj eq>s ekjus ds fy, pkSM+k;k ftlls eSa viuk tku cpkdj tgka ls Hkkx x;k blds ckn eSa lh/kk Fkkuk pkaik vk;k ,oa vius ifjtuksa dks lwfpr fd;k] fjiksVZ djrk gwa dk;Zokgh fd;k tk;sA ogka ij jktdqekj lksuh ,oa lquhy lksuh o vU; yksx Hkh ?kVuk dks ns[ks lqus gSaA gLrk{kj vLi"V] vLrk{kj nhid xqIrk leys'ojh eafnj ds ikl okMZ ua 05] 9425220744] 21-12-19
13. Similarly, complainant / informant Deepak Gupta has been examined 8 under Section 161 of the CrPC on 24-12-2019 in which he stated as under: -
dFku nhid xqIrk S/o. Lo- Jh v'kksd xqIrk] 45 o"kZ lkfdu leys'oj eafnj ikjk pkaik] Fkkuk pkaik] eks-ua- 9425220244 eSa mijksDr irs ij vius ifjokj ds lkFkk TosylZ nqdku pykrk gWwa fd vkt fnukad 21-12-19 dh 'kke djhc 4 cts jkts'k vxzoky ds lkFk iqjkuk dkyst ikjk jksM esa [kM+s Fks blh le; jkts'k vxzoky dks Qksu dj xksfoUn nsokaxu ik"kZn izR;k'kh okMZ ua- 7 pkaik us crk;k fd cqFk dz- 10 ifjlj esa bczkfge eseu eq>s ekjihV fd;k gS ;gka tYnh igqapksa dks lqudj eSa jkts'k vxzoky ds lkFk iq=h'kkyk ds ckgj jksM esa igqapk ogka ij bczkfge eseu vius iq= ds [kkfyn eseu ds lkFk [kM+k Fkk] jkts'k vxzoky dks ns[krs gh [kkfyn eseu cksyus yxk fd rqe ;gka D;ksa vk;s gks] rqEgkjk ;gka D;k dke gS lqudj eSaus [kkfyn dks cksyk fd cM+ksa ls bl izdkj cnrehth ls ckr ugha djrs] rc [kkfyn eq>s eknjpksn fgUnw cfu;k rw eq>s D;k le>k;sxk fgUnqvksa dh D;k vkSdkr gS dgdj xaanh&2 /kkfeZd xkyh nsrs gq, [kkfyn us gkFk eqDds ls ekjihV fd;k ftlls esjs OgksV ds mij pksn yxk vkSj esjs igus tkdsV dqrkZ dks QkM+ fn;k] blds ckn bczkfge eseu ,d yksgs dh ryokjuqek vkStkj ysdj eq>s tku ls ekjus dh /kedh nsrs ekjus ds fy, nkSM+k;k rks eSa fdlh izdkj ogka ls Hkkx dj lh/kk Fkkuk vk;k rFkk ekjihV ?kVuk dks jktdqekj lksuh] lquhy lksuh ns[ks lqus gSa o vklikl ds vU; yksx Hkh ns[ks gSaA lgh@&
14. Statements of Raj Kumar Soni and Sunil Soni have also been recorded, they were said to be present at the scene of occurrence according to complainant Deepak Gupta, but they have not supported the allegations of complainant Deepak Gupta qua the offence under Section 295 of the IPC. Noticing the statement of Deepak Gupta as stated in the FIR and statement recorded under Section 161 of the CrPC, it appears that accused Khalid Memon is said to have said about Hindus and further said to have filthily abused in the name of religion. Nothing has been stated, which would tantamount to insult or attempt to insult the 9 religion or religious beliefs of the class of citizens with the intention of outraging the religious belief of that class of citizens. Following the principles of law laid down by the Supreme Court in Ramji LaL Modi (supra) followed by the Supreme Court in Mahendra Singh Dhoni (supra) and Priya Prakash Varrier (supra), it cannot be concluded that the alleged words / statement allegedly made by the petitioner would tantamount to insult or attempt to insult Hindus or religious feelings of that class attracting Section 295A of the IPC, particularly when other two witnesses Raj Kumar Soni & Sunil Soni have not supported the case of the complainant and prosecution.
15. As such, taking the contents of the FIR for offence under Section 295A of the IPC, following the judgment of the Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others 4, paragraph 102(1 & 2), the FIR against petitioner Khalid Memon for offence under Section 295A of the IPC deserves to be and is accordingly quashed. However, prosecution of the petitioner for other offences would continue for which this Court has not expressed any opinion.
16. The writ petition is allowed to the extent indicated herein-above. No order as to cost(s).
Sd/-
(Sanjay K. Agrawal) Judge Soma 4 1992 Supp (1) SCC 335