Bombay High Court
Sunil Madhukar Dhepe And Anr vs The State Of Maharashtra And Another on 3 August, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
1 920APPLN437.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
920 CRIMINAL APPLICATION NO.437 OF 2021
SUNIL MADHUKAR DHEPE AND ANR
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicants : Mr. Sushant B. Choudhari
APP for Respondents : Mr. M. M. Nerlikar
...
CORAM : SMT. VIBHA KANKANWADI
AND
RAJESH S. PATIL, JJ.
DATE : AUGUST 03, 2022
PER COURT : -
1. The present application has been filed invoking the
inherent powers of this Court under Section 482 of the Code of
Criminal Procedure to quash the criminal proceedings bearing
R.C.C. No.438/2020 including the F.I.R. on the basis of which
the criminal case came to be filed before the learned Chief Judicial
Magistrate, Osmanabad, for the offence punishable under Section
3 of the Police (Incitement to Disaffection) Act, 1922 [hereinafter
referred to as the 'Act'].
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2. Heard Mr. Sushant B. Choudhari, learned advocate for
the applicants and Mr. M. M. Nerlikar, learned APP for
respondent/State.
3. Learned advocate for the applicants submits that the
applicant no. 1 is a Journalist and applicant no. 2 is an agriculturist
as well as Social Worker. The F.I.R. has been lodged by
respondent no. 2 in the capacity of P.S.I. attached to Cyber Cell of
Osmanabad district, on 14.01.2020. In the F.I.R., it has been
stated that while going through the social media as per the
direction given by the District Superintendent of Police, he found
on 13.01.2020 an objectionable article, which was on Facebook
account under the name 'Osmanabad Live'. It was published
around 15:39 hrs., and it was liked & published by applicant no. 2
at about 15:53 hrs., on his Facebook account. Both of them had
published that objectionable article which was having heading
'fcgkjh ckcw vkrk rjh tkxs Ogk'. The informant says that after perusing
the said contents of the post, which was divided into eight paras, it
is found that, in each para, the then District Superintendent of
Police - Shri. Raj Tilak Roashan was referred to as 'fcgkjh ckcw' and
question was raised as to why no action has been taken in respect
of the incident of assault on a Journalist at Tuljapur and what was
the source of amount of Rs. 5.00 lakhs which was donated by the
police department to the Literary Convention that was organized
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in Osmanabad. The informant says that the post of District
Superintendent of Police is a highest post in the police department
in the district and in order to defame the said post as well as to
malign the status of the police from Osmanabad, the said article
was published and it was to create disaffection of the general
public as against the police persons and, therefore, he invoked
Section 3 of the Police (Incitement to Disaffection) Act, 1922.
4. The investigation has been carried out and the statement
of witnesses have been recorded. Most of the statements are of the
police constables and not a single statement of general public as to
what they had felt after going through the said post has been
recorded. Learned advocate for the applicants has relied upon the
decision in Ravindra s/o Baliram Dhawale vs. State of Maharashtra
reported in 2021(4) Mh.L.J. (Cri.) 432, the Division Bench of this
Court after considering the item that was published in the
newspaper wherein also Section 3 of the Act was invoked,
however, along with that, provisions of Section 500 of IPC were
also invoked, held that the wordings of Section 3 requires
disaffection to be created amongst police and it should be against
Government and not against a particular police employee. On the
similar set of facts when it was alleged that defamatory article has
been published in the newspaper, the said Division Bench held
that "in view of wording of Section 3 of the Act, it can be said that
the purpose of the publication of the matter was not to create
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disaffection amongst the police or incite them to act against the
Government. Thus, even if the allegations made in the FIR are
accepted as they are, they cannot make out offence punishable
under Section 3 of the Act". Thereupon, the F.I.R. was quashed
in respect of that offence but as regards Section 500 of Indian
Penal Code is concerned, liberty was given to the concerned
Magistrate to proceed.
5. Here in this case, only the provisions of Section 3 of the
Act are invoked and, therefore, it cannot be said that the said
article has created any kind of disaffection amongst police to act
against the Government. Learned advocte for the applicants
prayed for quashing of the entire proceedings.
6. Learned APP strongly opposed the application and
submitted that, now in view of the amendment to the punishment
to be imposed under Section 3 of the said Act, it has been made
punishable with three years and fine. So it would be a cognizable
offence and, therefore, the cognizance has been taken by the
learned Chief Judicial Magistrate, Osmanabad, of the said offence.
If we consider the contents of the post that was published by
applicant no. 1 and then liked by applicant no. 2, it showes that at
each place the District Superintendent of Police has been referred
to as 'fcgkjh ckcw' and it cannot be said that the intention was bona
fide one. There may be grievances of the Journalists stating that
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action should have been taken on the basis of alleged incident of
assault to one Journalist at Tuljapur but then this cannot be the
way to create unrest against Government department. The
intention and other things would be clarified at the time of trial
and, therefore, this is not a fit case where the inherent powers of
this Court under Section 482 of the Cr.P.C. should be exercised.
7. At the outset, it is to be noted that the F.I.R. does not
reproduce the entire post that was read by the informant and it
appears that, copy of the same was not even given to the applicants
along with the charge-sheet. The F.I.R. rather highlights only
those things which the informant wanted to highlight. We could
find the photocopy of the said post in the police papers, which
were supplied to learned APP. In the said post, it has been stated
that the reporter of a Osmanabad T.V. news channel was
manhandled by the police persons two days prior to the said post,
however, it is stated that the District Superintendent of Police who
has been referred to as 'fcgkjh ckcw' has not taken any cognizance of
the same and he was only watching the same. If we want to go
para by para, then definitely this portion does only state about the
fact and the interpretation that District Superintendent of Police
has not taken any action. The second para states that the
Journalists from the entire State have registered their
dissatisfaction so also the Ex-Chief Minister and Minister has also
taken note of the same but the District Superintendent of Police
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has not taken any action. Again he has been referred to as 'fcgkjh
ckcw'. This para also speaks about a fact. The third paragraph gives
a picture that there are two associations of the Journalists in
Osmanabad district and then it is stated that with some fractions
only the District Superintend of Police has good relations and then
inference has been drawn that he has nothing to do with other
Journalists. Then there is reference that the same person i.e.
District Superintendent of Police was in fact Additional
Superintendent of Police in Osmanabad in 2016 and at that time
there was some offence registered against three Journalists and
according to the applicant no. 1, false offence has been lodged
against those Journalists. Again we will have to repeat that the said
para speaks about fact and addresses District Superintendent of
Police as 'fcgkjh ckcw'. The next two paras also speak about the
incidences which have taken place at Tuljapur and other places
and so also inaction by the police. Thereafter, a grievance has
been raised that the said District Superintendent of Police is
unable to speak Marathi properly and it is stated that he has
written a book which was then published in the Literary
Convention. Again a fact and then it is stated that donation of
Rs.5.00 lakhs was given by the police deparment for the said
Literary Convention [Sahittya Sammelan] and a question has been
asked as to from whom the said huge amount has been collected.
Definitely the Journalists have right to ask such questions and
nobody should feel aggrieved or defamed when the source of
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donation is asked. The further paras are on the same line.
Therefore, taking into consideration the said post which was
written by applicant no. 1 and liked and published again by
applicant no. 2 on his Facebook account, we can, at the most, say
that it was an act of informing the public and by some stretch of
the facts it might have given right to the then Superintendent of
Police for lodging a complaint by alleging that he has been
defamed.
8. Section 3 of the Act runs thus:
"3. Penalty for causing disafection, etc. :-
Whoever intentionally causes or attempts to
cause, or does any act which he knows is likely to cause
disaffection towards the Government established by law in
India amongst the members of a Police force, or induce or
attempts to induce, or does any act which he knows is likely
to induce any member of a police force to withhold his
services or to commit a breach of discipline, shall, on
conviction, be punished with imprisonment for a term
which may extend to three years, or with fine which may
extend to five thousand rupees, or be punished with
imprisonment which may extend to six months, or with fine
which may extend to two hundred rupees, or with both.
Explanation.- Expressions of disapprobation of the
Government with a view to obtain their alteration by lawful
means or disapprobation of the administrative or other
action of the Government do not constitute an offence
under this section unless they cause or are made for the
purpose of causing or are likely to cause disaffection."
9. In fact, we would like to adopt the interpretation that has
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been done by the Division Bench of this Court in the case of
Ravindra Dhawale (supra), in which, note was taken of the
judgment delivered in Criminal M.A. No. 7536/2008 decided
with other applications on 18.04.2012 by Gujarat High Court
(Bharat Desai, Editor, Times of India and Anr. Vs. State of Gujarat
and anr.). After considering the facts, the Hon'ble Gujarat High
Court held that the comments questioning the wisdom of State
Government cannot lead to inference that there was intention of
the publisher to induce or incite police which is requirement of
Section 3 of the Act. Such disaffection needs to be created
amongst police and it should be against the Government. Further,
observations by the Hon'ble Apex Court in Civil Appeal
No.4815/2013 (N. Sengodan vs. Secretary to Government, Home
(Prohibition and Excise) Department, Chennai and others) in
relation to Section 3 of the Act, were also noted. In para no. 29,
the Hon'ble Apex Court has made following observations : -
"29. It is apparent from Section 3 of the Act 1966 that there
is no specifc ban to form association but there is a
restriction to form association. A Police personnel can
be a member of, or can be associated in any way with,
any trade union, labour union, political association or
with any class of trade unions, labour unions or political
associations only with the express sanction of the
Central Government or of the prescribed authority. For
attracting the penalty under Section 3 for causing
disaffection, it is to be proved that the person concerned
intentionally caused or attempted to cause or done any
act which is likely to be disaffection towards the
Government established by law in this country among
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the members of the Police force or induces or attempts
to induce or does any act which he knows likely to
induce any member of the Police force to withhold his
service or committed breach of discipline."
10. Independently also if we consider the statement of
objects and reasons when the said provision or Act was enacted in
1922, we will have to consider that there was British Rule in this
country and to protect the Government from any such agitation
by or on behalf of the police department at the instigation of the
public, these provisions were made. No doubt, the said Act still
exists but it's application is not in such a way as the prosecution
intends to. It is also to be noted that during the investigation, the
statement of only police officers have been recorded. Some of
them had not even read the post on their own. The reading of the
post will not in any way create dissatisfaction amongst police
against the State Government and, therefore, continuation of the
proceedings against the applicants would be an abuse of process of
law.
11. In view of the judgment delivered by the Hon'ble Apex
Court in the case of State of Haryana and Others Vs. Bhajan Lal
and Others, 1992 Supp. (1) SCC 335, we would like to exercise
inherent powers under Section 482 of the Code of Criminal
Procedure to quash the F.I.R. as well as the entire proceedings.
Hence, following order.
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ORDER
[i] Criminal Application stands allowed.
[ii] The FIR vide C.R. No. 08/2020 registered with Anand Nagar Police Station, Osmanabad on 14.01.2020 and the proceedings in R.C.C. No.438/2020 pending before learned Chief Judicial Magistrate, Osmanabad or any other Court to whom it has been assigned, for the offence punishable under Section 3 of Police (Incitement to Disaffection) Act, 1922, stands quashed and set aside.
[iii] The bail bonds of the applicants stands cancelled.
[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
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