Bombay High Court
Prabhu Chawla vs The State Of Maharashtra And Anr on 10 January, 2025
HEMANT
2025:BHC-AS:1494
CHANDERSEN
SHIV
Digitally signed by
HEMANT
CHANDERSEN SHIV H.C. SHIV 905.wp2337.18.doc
Date: 2025.01.14
15:04:30 +0300
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2337 OF 2018
Prabhu Chawla
Age 72 years, Occupation Journalist
resident of E-16, Ansal Villas, Mehrauli,
New Delhi - 110 012 ... Petitioner
vs.
1. State of Maharashtra
Through Senior Inspector of Police,
N.M. Joshi Marg Police Station,
Mumbai ...
2. Atish Babaji Kadam
Age 38, resident of BDD Chawl No.20,
Room No.55, N. M. Joshi Marg,
Mumbai ... Respondents
Mr. Aabad Ponda, Senior Counsel with Ameet Naik, Abhishek Kale,
Shalvika Nachankar, Antara Kulkarni i/b Naik Naik and Co. for the
Petitioner.
Mr. Y. M. Nakhwa A.P.P. for the Respondent No.1-State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 10th DECEMBER, 2024
PRONOUNCED ON : 10th JANUARY, 2025
JUDGMENT :
. Present Petition under Article 227 of the Constitution of India seeks recalling of the impugned Orders dated 1st February 2008, passed by the 13th Court of learned Metropolitan Magistrate at Dadar, 1/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 ::: H.C. SHIV 905.wp2337.18.doc Mumbai in C.C.No.2900153/PW/2007, thereby summons has been issued against the Petitioner for the alleged offence punishable under Section 295A read with Section 109 of the Indian Penal Code (" I.P.C." for short) and the Order dated 11th March 2018 passed by the same Court thereby directing to issue a non-bailable warrant against the Petitioner.
2) Heard Mr.Ponda, the learned Senior Counsel for the Petitioner and Mr.Nakhwa, the learned A.P.P. for the Respondent No.1-State.
3) The Record indicates that vide Order dated 3rd March 2021, the Petition was admitted and interim relief in terms of prayer clause (c) was granted. Further, the learned A.P.P. waived notice for and on behalf of Respondent No.1-State. Thereafter, Rule notice was served upon Respondent No.2. However, none appeared for Respondent No.2 when the Petition was taken up for hearing.
4) Brief facts giving rise to this Petition are that, on 15 th October 2004, at about 10 a.m., near Bavla Masjid, N. M. Joshi Marg, when the informant - Mr.Atish Babaji Kadam was reading a Marathi daily newspaper 'Samrat', the informant found that an image of Lord Buddha was printed on front page of the newspaper. There was jewellery in the neck, ears and arms of Lord Buddha in the said 2/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 ::: H.C. SHIV 905.wp2337.18.doc image. Two women were standing in the image to the side of Lord Buddha, one of whom had placed her right hand on the left shoulder of Lord Buddha in the said image. Thereafter, the informant read the column printed to the side of the said image and purchased a copy of 'India Today' weekly magazine in Hindi, which was referred to in the said column. Further, the informant showed his friends the said image of Lord Buddha in the newspaper and the magazine. On seeing the ornaments on the person of Lord Buddha in the said image, they all felt very sad. Thus, the aforesaid image outraged their religious feelings. As a result, the informant filed a report with N.M. Joshi Marg police station against the Petitioner, who had been editor of 'India Today' magazine, its distributor, and two women i.e. Ms.Mumtaz and Ms.Pallavi, seen in the said image. In turn, police registered the said report at F.I.R. bearing C.R.No.219 of 2004, under Section 295 read with 34 of the I.P.C. During the investigation, the police seized the newspaper and the magazine and recorded the statements of witnesses. On completion of the investigation, the police submitted a charge sheet before the 13th Court of learned Metropolitan Magistrate, at Dadar, Mumbai against the Petitioner and said two women, Ms.Mumtaz and Ms.Pallavi for the offence punishable under Section 295A read with 109 of the I.P.C. However, 3/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 ::: H.C. SHIV 905.wp2337.18.doc according to the Petitioner he is innocent and there is no material to constitute the alleged offence leveled against him. Hence, this Petition.
5) Mr.Ponda, the learned Senior Counsel submitted that, admittedly, the Petitioner has been charge-sheeted for the commission of the alleged offence under Section 295A read with 109 of the I.P.C. As provided in Section 196 (1) (a) of the Code of Criminal Procedure "No court shall take cognizance of offence under Section 295A of the I.P.C. except with previous sanction of the Central Government or State Government". He submits that, in the present case, no such prior sanction from either of the Governments was obtained before filing the charge-sheet against the Petitioner. Therefore, he submits that the impugned Order of issuance of summons and non-bailable warrant are illegal and liable to be quashed and set aside. Mr. Ponda urged that even otherwise, the allegations made in the report and the material relied upon by the prosecution are absolutely vague, scattered and general in nature. Therefore, even if they are taken on face value and accepted in their entirety, they would not prima facie constitute any offence or make out a case against the Petitioner.
6) In contrast, Mr. Nakhwa, the learned A.P.P. submits that 4/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 ::: H.C. SHIV 905.wp2337.18.doc
admittedly Petitioner is Editor of the 'India Today' magazine. He submits that, the subject image clearly shows that certain jewellery items were put on the statue of Lord Buddha in the said image. Said fact is sufficient to constitute the alleged offence punishable under Section 295A read with Section 109 of the I.P.C., for which the Petitioner and others have been challenged and prosecuted. As such, according to the learned APP there is a prima facie case against the Petitioner. He therefore urged to dismiss the Petition.
7) Considering the facts of the case and rival submissions, it is necessary to have a look at Section 295A of I.P.C., which reads thus:
"Section 295A. Deliberate and malicious acts, intended to outrage religious feelings of 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."
8) On a plain reading of said Section 295A it is clear that, to attract the penal liability under said Section 295A, the act complained against must have been done by the accused with the deliberate and malicious intention of outraging the religious feelings of any class of 5/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 ::: H.C. SHIV 905.wp2337.18.doc citizens of India, which either insults or attempts to insult the religion or the religious beliefs. In the case in hand, the F.I.R. is silent about the presence of said deliberate and malicious intention on the part of the Petitioner.
9) Be that as it may, there is an Index at page no.12-I of the Petition. Said Index pertains to the police report and the documents submitted before the trial Court, on completion of the investigation in this crime. The Index does not refer to any correspondence or letters thereby requesting the Government to grant the sanction to file a charge-sheet and prosecute the Petitioner for the alleged offence of Section 295A read with 109 of the I.P.C. This fact sufficiently indicates that, the Petitioner has been charged and prosecuted without previous sanction of the Government. Mr.Nakhwa, the learned APP, conceded this fact. However, the said shortcoming on record was not considered by the learned Magistrate of the trial Court before summoning the Petitioner for the said offence and proceeding against the Petitioner. In the case of Manoj Rai and Others vs. State of M.P.1, it is held that in the absence of sanction under Section 196 (1) of Cr.P.C., proceedings for an offence of Section 295A of I.P.C. must be quashed.
1. (1999) 1 SCC 728.
6/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 :::
H.C. SHIV 905.wp2337.18.doc 10) In view thereof, the impugned Order to issuing summons
and non-bailable warrant passed against the Petitioner in the aforesaid case are not sustainable in law and same are liable to be quashed and set aside. The Petition succeeds, thus. Hence, the following Order :-
ORDER
(a) The impugned Order dated 1st February 2008, passed by the 13th Court of learned Metropolitan Magistrate at Dadar, Mumbai in C.C.No.2900153/PW/2007, thereby issuing summons for the alleged offence punishable under Section 295A read with Section 109 of the Indian Penal Code ("I.P.C." for short) and the Order dated 11th March 2018 passed by the same Court thereby directing to issue a non-bailable warrant against the Petitioner, are quashed and set aside.
(b) Petition is allowed in the aforesaid terms. Rule is made absolute.
[SHYAM C. CHANDAK, J.] 7/7 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:08 :::