Bombay High Court
Dhondiba S/O Irba Namwad vs State Of Maharashtra, Through P.S.O. ... on 27 February, 2020
Bench: Sunil B.Shukre, Madhav J. Jamdar
901-apl 192-16.odt 1/30
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.192 OF 2016
APPLICANT :- Dhondiba Irba Namwad
Aged about 55 yrs, occup.Service.
R/o Khamgaon, Tq.Khamgaon,Dist.
Buldhana. .
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra
Through P.S.O. Khamgaon, Dist. Buldhana
2. Omprakash Narayan Sharma,
Aged 40 yrs, r/o Gharpuri naka, Khambaon,
Dist.Buldhana.
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Mr.A.M.Ghare, counsel for the applicant.
Mr. T.A.Mirza, Asstt.Govt.Pleader for the respondent State.
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CORAM : SUNIL B.SHUKRE AND
MADHAV J. JAMDAR, JJ.
DATED : 27.02.2020.
ORAL J U D G M E N T (Per : Sunil B.Shukre, J.)
1. Heard learned Counsel Shri. A.M. Ghare for the applicant and learned Additional Public Prosecutor Shri. T.A.Mirza for the respondent no.1 - State. Nobody has appeared for respondent no.2.
2. By this Criminal Application, the applicant, who was at the relevant time, Chief Officer of Municipal Council Khamgaon, District Buldhana has sought quashing of the First Information Report dated 30.09.2015 registered against him and one more person vide Crime ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 2/30 No.80/2015 for an offence punishable under Section 295 r/w 34 of the Indian Penal Code. The applicant has also prayed for consequential reliefs.
3. In this First Information Report, allegations made were that this applicant along with another accused, with the intention of insulting Hindu religion, defiled and insulted its object of worship, held sacred by Hindu religion. The object of worship, in the present case, was idol of Lord Ganesh. The respondent no.2, who filed a complaint alleged that at the end of Ganesh festival, idols of Lord Ganesh were immersed in large number in artificial immersion tanks, provided by the Municipal Council, Khamgaon, Distt. Buldhana. Immersion process went on, as alleged by the complainant, all throughout the day. The complainant further alleged that in the morning of 30.09.2015 when he happened to traverse by the bye- pass road, he came across a dumping ground, situated at Sajanpuri, where he was surprised to see idols of Lord Ganesh, which were immersed a few days ago, having been dumped on the garbage and lying scattered at the dumping ground. He also noticed that many of these idols were attempted to be pushed under the ground by running some vehicles over them. The complainant further alleged that City of Khamgaon was communally sensitive and insult and damage caused to Lord Ganesh's idols was intentional, and had an ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 3/30 ulterior motive of spreading hatred amongst two communities and incite violence on the basis of religion. Upon such complaint of respondent no.2, respondent no.1 promptly registered an offence punishable under Section 295 of the Indian Penal Code against the present applicant and one more person named in the complaint with the aid of Section 34 of the Indian Penal Code.
4. The complaint was investigated into and ultimately, a final report under Section 173 of the Code of Criminal Procedure was filed against not only this applicant but also the co-accused against whom FIR was registered and two more accused who were, according to the Investigating Officer, found to be involved in the acts of dumping, insulting and damaging idols of Lord Ganesh.
5. The complaint was filed by respondent no.2 with respondent no.1 on 30.09.2015 and about four and half months later or to be precise with effect from 16.02.2016 the applicant was placed under suspension by the Competent Authority. The reason was registration of the aforesaid offence against him at Police Station, Shivaji Nagar, Khamgaon, which was perhaps a sequel to an issue raised by way of a starred question asked in the Legislative Assembly of State of Maharashtra.
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6. Shri A.M.Ghare, learned counsel for the applicant submits that no offence whatsoever has been committed by the applicant. He submits that even if the allegations are accepted as true, still they would not constitute any offence as contemplated under Section 295 of the Indian Penal Code. He further submits that even on facts of the case, there is nothing available on record which would show that the applicant himself had dumped those idols on the garbage ground or had given specific instructions to dump those idols on garbage ground and that too, with an intention to insult the religion or defile any sacred object or object of worship.
7. Shri T.A. Mirza, learned Additional Public Prosecutor submits that prima facie case is made out and he relied upon the reply filed in this regard on behalf of respondent no.1. Respondent no.2 has not filed any reply.
8. In order to appreciate the rival arguments, it would be necessary to first refer to the offence of injuring or defiling a place of worship with intent to insult a religion of any class as contemplated under Section 295 of the Indian Penal Code (for short "IPC"). The section reads thus:
295. Injuring or defiling place of worship with intent to insult the religion of any class- Whoever ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 5/30 destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
9 A bare perusal of this Section would be enough to show that in order to constitute such an offence, allegations must disclose the following ingredients.
i) There must be in existence a place of worship or
an object held sacred by any class of persons.
ii) Such place of worship or object must be
destroyed or damaged or defiled,
iii) The destruction, the damage or the defilement
must be done with the intention of insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion.
The above referred three ingredients must exist together in order that an offence punishable under Section 295 IPC is constituted. If any one of the these ingredients is absent, no such offence would be made out. It is pertinent to mention here that Section 295 Indian Penal Code seeks to punish an act of destruction or damage or defilement of any place of worship or any object held sacred by any class of persons, provided the act is committed ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 6/30 intentionally or with the knowledge that any class of persons is likely to consider it as an insult to their religion. Section 295 IPC does not cover any instances of injury to or defilement of living things. The Section contemplates offence only against inanimate objects as against animate things. In the case of Queen Empress Vs. Imam Ali,1 a proposition of law was propounded that the word "object" used in Section 295 Indian Penal Code does not include animate objects by holding that the word "object" should be interpreted ejusdem generis with words "place of worship". Hon'ble Supreme Court has, in its judgment delivered in the case of S.Veerabadran Chettiar V. K.V. Ramaswami Naicker and others 2 , declared the above referred proposition of law as authoritative. In the same judgment, Hon'ble Apex Court also dealt with the meaning conveyed by the words "any object held sacred by any class of persons". It laid down that these words are of general import and, therefore, no restrictive interpretation could be placed on them. It held that what is important is that the object must be held sacred by any class of persons and it is not necessary that it should be actually worshiped. Hon'ble Supreme Court emphasised that it is only when an object is held sacred by any class of persons that the offence would be committed, when it observed in paragraph 7 thus:-
1 ILR 10 Alla 150 (A) 2 AIR 1958 SC 1032 ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 7/30 "Para7:-.............................................................
...Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section. Nor is it absolutely necessary that the object, in order to be held sacred, should have been actually worshipped. An object may be held sacred by a class of persons without being worshipped by them..........................."
10. In the present case, no place of worship is involved in the alleged incident of causing of destruction or defilement with a view to insult any religion. The allegations in the First Information Report pertain to inflicting damage to and defilement of an object symbolized by idols of Lord Ganesh lying scattered over a heap of garbage at a dumping ground. The question, therefore, required to be examined here is whether or not these idols thrown on the heap of garbage were held sacred by a class of persons professing a particular religion, which is Hindu religion here, in the facts and circumstances of the present case. Case of S.Veerabadran Chettiar V. K.V. Ramaswami Naicker and others (supra) has already provided us sufficient guidance for finding out an answer thereto. Key to the question is, whether or not these Ganesh Idols were held sacred by Hindus, and whether or not Hindus nurtured any belief or idea or feeling or sentiment of or towards these idols as being sacred to them. In the FIR filed against the applicants by respondent No.2 certain admissions have been given and in our opinion, they enable us to provide an answer to the question quite firmly. ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 8/30
11. From the admissions given in the FIR it could be seen that Ganesh idols were dumped at the garbage yard after day long immersion proceedings were held on the last day of ten days Ganesh festival. Every year Hindus celebrate Ganesh festival which starts on the day called "Shri Ganesh Chaturthi" and it falls in the month of "Bhadrapada" as per Hindu calendar. It is believed that on the day of Shri Ganesh Chaturthi, which is forth day of 15 days of waxing moon or brighter lunar cycle of Bhadrapada month, Lord Ganesh, present as attributeless and formless Supreme reality in the area of Kailash Parvat (a mountain peak in celestial Himalaya) descends on earth along with his mother Goddess Parvati/Gauri. Hindus believe that with him Lord Ganesh brings happiness, prosperity and peace on earth and stays on earth, occupying houses of various Hindu householders and receiving worship and hospitality from devotees and showering His blessings on devotees for 10 days. Hindus also believe that after completion of 10 days of stay and hospitality, time of departure of Lord Ganesh to His heavenly abode arrives and this day is called "Anant Chaturdashi", which is the fourteen day of 15 days of waxing moon or brighter lunar cycle. 3 On this day, Hindus believe, Lord Ganesh bids adieu to them, after granting their wishes and promises to return to them, as and when invited.
3. For some Hindus departure day could be earlier as well although arrival day is the same day for all Hindus.
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12. The arrival of Lord Ganesh on the day of " Shri Ganesh Chaturthi" and departure of Lord Ganesh on the day of "Anant Chaturdashi" are announced formally and made complete by instilling prana or life force into idol of Lord Ganesh on the arrival day and withdrawing it from the idol on the departure day. For this purpose an idol of Ganesh is made, usually of clay or some other organic eco-friendly material, made at home or brought from a market which lends a physical form to Lord Ganesh and it is ceremonially installed at some holy place, already designated for the purpose, on the arrival day. Similarly, the idol is ceremonially de installed on the day of departure of Lord and immersed in some clean and pure water body. Such ceremonial installation and deinstallation of idol of Lord Ganesh have their own significance as these two events signify assuming of life form, which is sagun or full of three basic attributes and sakar or having a form perceptible to senses and faculties, by Lord Ganesh and giving up or shedding of life form by Lord Ganesh respectively.
13. Assuming of life form and shedding it by Lord Ganesh has its relevance for the image of Lord Ganesh a Hindu generally understands according to fundamental tenets of Hinduism. In Shri ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 10/30 Ganpati Atharva Shirsha, a late Upanishadic text 4, Lord Ganesh has been eulogised as Absolute or Supreme reality pervading the whole Universe having omnipresence, omniscience and omniportence. In the same Upanishadic text, Lord Ganesh has been described in stanza 55 as:
Roa xq.k=;krhr%A RoeoLFkk=;krhr%A Roa nsg=;krhr%A Roa dky=;krhr%A It means: Lord Ganesh is beyond three gunas or qualities, satva(goodness, creative), rajas ( action, sustaining) and tamas ( darkness, destructive) of which the physical world is made; Lord Ganesh transcends three states of bodily consciousness, jagrut (awake), sushupti (deep sleep) and swapna (dream); Lord Ganesh is formless or beyond the three forms of bodies of human being, sthula sharir (gross or physical body), sukshma sharir (subtle body) and anandmay kosha (causal body); Lord Ganesh is timeless or transcends three states of time, past, present and future. It is this perception of Lord Ganesh by Hindus which underlines the importance of taking on of life like character or form by Lord Ganesh during 10 day long festival and shedding it by Lord at the end of the festival. Assuming the life form and shedding it by Lord Ganesh, who is otherwise 4 For full text see Atha Ganapatyatharvashirsham, given in Shri Vratodypan Chandrika by Shastri Tuljashankar Pandya, pp. 12-14, published by J.B. Boda & Co. Mumbai, Edn. 1996.
5. Ibid 4 ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 11/30 nirgun (attributeless) and nirakar (formless), makes a devotee feel near him actual presence of Lord during 10 days of festival thereby enabling him to focus his worship and devotion on an object he could hold sacred to his heart.
14. Taking on of life form and leaving of life form by Lord Ganesh, however, does not happen just by casting an idol or bringing an idol from the market, placing it at its designated place and then removing it from that place and immersing it in some water body. They are not the processes which take place on their own and automatically. They are the processes induced by invocations made to Lord Ganesh by performing elaborate rituals and chanting suitable hymns or mantras prescribed in Hindu scriptures. Without chanting of specific hymns and performance of elaborate rituals, no idol of Lord Ganesh can be said to have come alive in life form from the day of arrival and onwards till the departure day of Lord Ganesh. On the departure day also, chanting of sacred hymns or mantras and performing of rituals is necessary so as to enable Lord Ganesh shed His life like character. On the day of departure, the idol of Lord Ganesh is required to be deinstalled and disposed of by the last ritual called Visarjan, which is done by chanting prescribed mantras followed by consigning of the idol into a clean water body. On its immersion, what is expected to happen is the disintegration of ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 12/30 immersed idol into fine particles and its complete merger with the earth elements. Such ceremonial installation of physical figure of Lord Ganesh is what makes it sacred for Hindus and similarly such ceremonial deinstallation of the idol of Lord Ganesh alongwith its immersion in water body is what makes it an object no longer held sacred by Hindus. If this were not so, there would not be any ceremonial installation and de-installation coupled with immersion in water body of the idol of Lord Ganesh.
15. There are bespoke hymns or mantras for both installation and de-installation ceremonies of idol of Lord Ganesh given in Hindu texts and they support what we have observed earlier. First, we would reproduce the installtion hymns here by extracting them as under:-
Lkksga ee izk.kk bg izk.kk%A Lkksga ee tho bg fLFkr%A Lkksga ee loZsfUnz;kf.k bgk;kUrqA 6 bfr izk.kizfr"Bkiz;ksx%AA Above hymns signify transfer by a worshiper of a portion of his own prana or life breath along with all his indriyas or his 6 c`gn~ czãfuR;deZleqPPk;%A jfp;rk 'kkL=h nqxkZ'k³~dj mek'k³~dj Bkdj] izdk'kd% 'kkL=h v#.k ;KnÙk Bkdj okyqds'oj laLd`rikB'kkyk] 29 ck.kxaxk] eqacbZ 400006] 2003 vko`Rrh (6. Brihad Brahmanityakarmasamucchayaah (page____) authored by Shastri Durvashankar Umashankar Thakar, Publisher : Shastri Arun Yadnyadutta Thakar, Walukeshwar Sanskrit Pathshala, 29, Banganga, Mumbai-400006, 2003 Edition).::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 13/30
external and internal organs and faculties to physical body (idol) of Lord Ganesh. Once transfer of prana and indriyas with faculties is complete, idol of Lord Ganesh assumes a life character making it sacred and holy and it remains so till the day of Lord's departure, when idol's Visarjan is ceremonially done.
On the day of departure, time for giving up of life character by Lord Ganesh comes. On this day, the idol of Lord Ganesh is ceremonially de-installed and its Visarjan done by releasing it into a pure and clean water body. Hymns are chanted and certain rituals are performed and they are called " Devata Visarjan Rituals". They symbolize withdrawal of life force from idol of Lord Ganesh so that Lord can embark upon His celestial journey back to Kailash Mountain after enjoying His stay on earth and whole-heartedly blessing His devotees. There are again bespoke hymns prescribed in Hindu texts for completing de-installtion or Visarjan rituals. Now we would reproduce the extract of these hymns as below:-
nsorkfoltZue iq"ik{kriz{ksis.k LFkkfirnsokfUoltZ;sr~A ;kUrq nsox.kk% losZ L;'kDr;k iwftrk e;k AA b"Vdkeizfl/n;FkZ iqujkxeuk; pAA 7 7 Ibid 6 ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 14/30 These mantras convey a meaning that Visarjan or withdrawal of life force from physical body of Lord Ganesh is complete by showering flowers and akshata or vermillion (kumkum) smeared rice grains on idol of Lord Ganesh while expressing a sentiment that devotee by that act is releasing life force from physical body of established Lord Ganesh into outer world. At the same time, the devotee announces that he has offered his obeisance to Lord Ganesh as per his capacity and capability and he also makes an appeal to the departing Lord that whenever Lord would be invited to his house on any auspicious day or for any holy purpose, Lord may make it convenient to physically arrive in his house or the place again.
16. These hymns or mantras clearly show that idol of Lord Ganesh or for that matter idol of any other Hindu God when ritually established and ritually released or consigned back to earth elements is held sacred from the day of its formalistic establishment, remains so as long as the festival lasts and looses its character of sacredness on the last day of festival after Visarjan rituals are performed on the enchantment of purpose-specific mantras in a formal way. Pran- pratisthapana or installation rituals signify assuming of life character by Lord Ganesh and Visarjan or deinstallation rituals mark giving up by Lord Ganesh of His physical body and entering into ethereal form, ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 15/30 leaving behind His physical remains which are no longer held sacred by the devotees. Visarjan is finally done by releasing the idol of deity, in the present case, Lord Ganesh into a clean and pure water body and as the idol is usually made up of clay, or any other organic and bio-degradable material, the idol, owing to reaction of clay or the bio-degradable material to forces of water, disintegrates into finer particles or dissolves in water and thus, merges with earth elements. In this way, upon Visarjan physical form of Lord Ganesh disappears and there remains nothing to be seen as any physical object resembling idol of Lord Ganesh.
17. Such disappearance of physical form of Lord Ganesh upon Visarjan was the norm in the past when clay material was available in abundance and easily and when other bio-degradable materials also used to be preferred. Modern times, which have brought comfort and convenience to human beings, however, are replete with their own kind of discomforts and disgraces. In the time we are living in today clay idols of any deity including Lord Ganesh have become scarce, and costly and other bio-degredable materials have lost their charm. Now, humans have resorted to those materials which are available easily and cheaply and which make it possible for sculptors to cast more attractive idols. One of the most popular alternate materials for casting of idols of deities is Plaster of Paris ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 16/30 (called "PoP" for short). This material has of late become very popular with idol makers and devotees. Now a days, increasingly idols of Lord Ganesh or for that matter idols of any other deity installed temporarily in Ganesh or other religious festivals are being made in PoP and this has given rise to several issues, and one of which is damage to environment. How does it happen? Let us see.
18. PoP is produced by heating gypsum rock at 150 - 165 degree celsius which process makes gypsum partially dehydrated. When PoP is mixed with water, it begins to solidify and quickly sets into a hardened mass of gypsum or calcium sulphate dihydrate. 8 It does not shrink or crack when dry. It is these properties of PoP which have made it a popular material for casting idols and other purposes.9 Before it is turned into a hardened mass, the paste or dough of PoP can be worked on and given different shapes and soon it becomes a hardened mass retaining the shape it is given. In this way idols are made using PoP.
19. Difficulty with PoP is that once it gets hardened completely, it can hardly be dissolved or disintegrated into fine 8 Karni, Joseph. " Gypsum in consturction : origin and properties". Materials and Structures 28, no. 2 (1995): 92-100 9 Article Title: Plaster of paris Website Name: Encyclopaedia Britannica Publisher: Encyclopaedia Britannica, Inc. Date Published: 09 February 2018 URL: https://www.britannica.com/technology/plaster-of-paris ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 17/30 particles by its submergence in water as it has a very low solubility in water. Its solubility in water has been calculated to be at the rate 0.067 moles/liter = 9.72505 grams/liter.10 With such low solubility of just about 10 grams/liter it is no surprise that PoP made idols after their formalistic Visarjan or dipping in water body retain their original shape for long periods of time and resemble the form of God which was previously held sacred during festival time by the devotees. These idols having been formally and ceremonially consigned to water by the devotees are already devoid of any character of life and any sacredness and in whatever shapes they continue to appear, they are not any different from usual earth elements. Such objects, though resembling a figure of God, in the present case the objects resembled figure of Lord Ganesh, are not and were not held sacred in any manner by the devotees or any class of persons, with the devotees having released the sacredness alongwith consignment of the idols in a ritualistic manner to water. This is what has happened in the present case. From the admissions given in the First Information Report by respondent No. 2 it can be very well seen that what were found dumped at the garbage ground were some objects resembling figure of Lord Ganesh after their Visarjan was done ceremonially and formally, thereby indicating that after the 10 Weiser, H.B. and F.B. Moreland. "The setting of plaster of Paris". The Journal of Physical Chemistry 36, no.1 (2002): 1-30.
::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 18/30 Visarjan ceremony was over, these objects were no longer held sacred by any class of persons. It would then follow that the first ingredient of the penal provision, Section 295 Indian Penal Code, about existence of an object held sacred by any class of persons was conspicuously absent here.
20. Apart from absence of any object held sacred by Hindus in the present case, we find that even the second ingredient relating to intentionally insulting religion or doing of the alleged act with the knowledge that the act would be considered by any Hindus as an insult to their religion was also absent. Evidence regarding circumstances in which Ganesh idols were dumped on the garbage ground has neither been collected nor has it been brought to our notice by the prosecution. Besides, there is no prima-facie evidence shown to us by the prosecution indicating that the applicant himself was involved in removing Ganesh idols from immersion place and bringing them to garbage yard for dumping them there. There is also no prima-facie evidence brought to our notice that dumping of idols on the garbage heap was done by somebody on the specific direction of the applicant. Thus, even the second ingredient of the penal section was not present here.
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21. This would make it clear to us that even if the contents of FIR are accepted as they are and the evidence collected during the course of investigation is taken as it is, no offence spelt out under Section 295 IPC is made out. The allegations, given the well known effect of Visarjan are absurd. Besides, we are also of the opinion that the complaint filed against applicant was actuated by mala-fides, the reasons for which are given in later paragraphs. Thus, this case is sqarely covered by criteria mentioned in clauses 1, 5 and 7 in the judgment of the Hon'ble Supreme Court in the case of State of Harayana and Ors Vs. Ch. Bhajanlal reported in AIR 1992 SC 604. These clauses are reproduced, for the sake of convenience, as under:-
"1. Where the allegations made in the First Information Report or the complaint, even if, they are taken at their face value and accepted to their entirety do not prima-facie constitute any offence or make out a case against the accused.
5. Where, the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
7. Where a criminal proceeding is manifestly attended with a mala fides and /or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengence on the accused and with a view to spite him due to private and personal grudge."
22. In the circumstances, we find that two of the essential ingredients referred to above and requisite of the offence punishable under Section 295 IPC were woefully lacking in the present case and yet complaint was filed by respondent No.2. It is a matter of ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 20/30 common knowledge that these days with extensive use of PoP made Ganesh idols during Ganesh festivals, the idols, after their ceremonial Visarjan into water bodies, do not get dissolved or disintigrated in water and retain there their original form for a considerable period of time. It is during this period of time, many a times idols are removed from the water bodies or are dealt with in some way or the other with a view to finally disposing them of. These acts done post Visarjan are much to the chagrin of a few and these persons knowing it fully well that these idols are not held sacred by any class of persons utilise the opportunity to either settle some personal scores or sensationalise the issue or to gain publicity and resort to filing of false complaints alleging sacrilege.
23. In the present case facts are more glaring indicating how the public machinery was misused. It is stated in the application that Shri Ashokkumar Gokulchand Sananda was the President of the Municipal Concil, Khamgaon at the relevant time. He is also one of the accused. It is the case of the applicant that Ashokkumar Sananda, being the President was worried about the condition of drought prevailing in the earlier year and also had in his mind the call given by the Government of Maharashtra to the public at large to not immerse idols of Lord Ganesh in the tanks and rivers in order to keep them pollution free and maintain ecological balance. So, he made a ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 21/30 conscious effort at creating mobile and artificial water tanks for the purpose of immersion of idols of Lord Ganesh, thus contends the applicant. Applicant further says that he too on his part appealed to the citizens of Khamgaon to cooperate and use these mobile water tanks for immersion of Ganesh idols, instead of such water bodies, like rivers, tanks etc. It is also contended in the application that on 27th September, 2015, these mobile water tanks were put in place at certain locations and large number of people took advantage of the same by choosing these artificial water tanks for immersion. All these contentions have gone completely unchallenged.
24. This would only show that respondent No.2 ought not to have filed any complaint against applicant and another and if it was filed, no offence ought to have been registered against the applicant. It appears to us that respondent No.2 filed a false complaint against the applicant and another with a view to cause some harassment or embarrassment to the applicant. Respondent No.2 was duly served with notice of this application but he chose to remain absent before this Court consistently. By the order passed on 12.04.2016, respondent No.2 was also issued a notice for final disposal of the application, and it was duly received by him. There has, however, been no response what so ever from respondent No.2 to this application. He neither filed any reply in the matter nor remained ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 22/30 present before the Court. In the memo of petition in paragraph No.7, it has been urged by the applicant that respondent No.2 filed a complaint against him to settle political score against Shri Sananda, President of Municipal Council, Khamgaon. This allegation, has also gone unchallenged by respondent No.2.
25. There is one more dimention of the case which cannot escape our attention. The Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, "the Municipalities Act, 1965") shows its veritable concern for the need to protect and maintain the environmental and ecological balance so necessary for survival of mankind. Section 49 of the Act, 1965 prescribes duties and functions of the Council. Section 49 (2) (ab) provides interalia for protection of environment and promotion of ecological balance. These aspects have been included in the duties and functions of the Council. Section 77 of the Municipalities Act, 1965 is about powers and duties of the Chief Officer. Section 77 (aa) lays down that Chief Officer shall act as the Government representative for implementation of the Central Government and State Government schemes and makes it mandatory for the Chief Officer to implement the directions issued by the Government, from time to time. In the present case, the applicant in his capacity as Chief Officer of Municipal Council, Khamgaon had performed his ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 23/30 duty in encouraging the devotees to take recourse to eco-friendly methods for disposal Ganesh idols in mobile water tanks. But, by filing a false complaint against him by respondent no.2, an attempt has been made to put spokes in the effort of the Government and the applicant, a Chief Officer of a Municipal Council and also all other officers like him, in taking appropriate measures to protect the environment in general and our water bodies like rivers, rivuletes, tanks, wells serving as sources of potable drinking water in particular.
26. The uncontroverted contentions of the applicant, filing of false complaint with some agenda and an attempt made to stall the efforts taken by the government for protecting the envronment in general and our water bodies like rivers, rivulates, tanks, wells in particular and also the impact the FIR registered against the applicant has had on duty-conscious officers like the applicant would all make this case fit for payment of compensation by respondent no. 2 to the applicant. After all, applicant has suffered not only ignominy, but also a service injury in the nature of suspension making him approach this court for undoing of the wrongs done to him. We quantify the amount of compensation to be paid by respondent no. 2 to the applicant at Rs. 100,000/-, which amount, if not paid, will be recovered from respondent no. 2 as the fine imposed upon him in a ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 24/30 criminal case by taking recourse to the procedure prescribed under Section 421 of the Code of Criminal Procedure.
27. In the circumstances, we find that the essential ingredients of Section 295 of the Indian Penal Code having not been prima-facie made out against the applicant, the FIR filed against the applicant vide Crime No.80/2015 together with all consequential proceedings is required to be quashed and set aside with liability of compensation imposed upon respondent no. 2.
28. Before we pass any final order, however, we find it necessary to highlight a larger issue arising from this case. The issue relates to pollution and degradation of our water bodies and natural environment contemporaneously with unpleasant sight of non- disintegrated Ganesh idols lying all over the garbage grounds across Indian cities, towns and villages. These idols even after their ritualistic consignment to water bodies do not dissolve or disintegrate for almost their whole parts retaining substantially their original forms, mostly due to use of PoP, a non-biodegradable material. It is the use of material such as PoP for casting Ganesh idols or any other God's idols, which has created multi layered problems harming sensibilities and sentiments of individuals belonging to a particular religion and also bringing in it's wake massive damage to our ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 25/30 water bodies and environment in general. PoP waste on its entering into natural environment such as rivers, lakes, wells and ponds causes water pollution, skin irritation and threat to acquatic life forms life fishes. 1 1 Wafia Masih, Principal Scientist at CSIR- National Chemical Laboratory, has opined "The immersion of POP idols causes direct harm to the environment. Gypsum is the main ingredient responsible for water hardness and pollution 12 of water bodies." She has also found that these idols get stuck in water work installtions, intake wells etc., and they block the natural flow of water bodies leading to stagnation. 13 Stagnation of water bodies is very harmful to environment. Stagnant water bodies are different from still lakes, ponds, wells etc. as in the former oxygen level in water is on depletion and whereas it is not so in the latter kinds owing to live acquatic activity and development of waves and currents. Stagnation affects adversly acquatic life like fishes, shells, crabs, water plants etc., possibly leading to their slow deaths due to suffocation resulting from low dissolved oxygen level. Healthy acquatic life is essential for maintaining steady supply of clean and fresh drinking water as pathogens like malarial or dengue parasites, 11 Rapid and greener method for utilization of Plaster of Paris (POP) waste generated from biomedical samples G.R. Navale1.2 K.N. Gohil1. K.R. Puppala1. S.S. Shinde2,3 - S. Umbarkar4- M.S. Dharne1, International Journal of Environmental Science and Technology (https://doi.org/10.1007/s13762-018-2070-7) 12 See article entitled " Ecofriendly Idol Immersions" by Wafia Masih, published in 23 Science Reporter, August 2017, p.22 13 Ibid 12 ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 26/30 coliform bacteria, amoebae etc., are consumed as food by fishes. This helps in keeping our water bodies clean preventing them from turning into mosquito and pathogens breeding grounds. 14 So, now a need has arisen for the appropriate Government to bring in legislation to prohibit use of PoP made idols of deities including of Lord Ganesh in various religious festivals and till this happens, to regulate disposal of PoP idols at the end of these festivals. Dr. Mohan Dongare and Dr. Shubhangi Umbarkar, Scientists, CSIR-NCL, have found an eco-friendly disposal method for PoP made idols. 15 They identified ammonium bicarbonate (ABC for short) as a suitable chemical agent for disintigration of the idols. They also found that when idols are dipped into ABC solution, they disintigrate quickly and the resultant aqueous solution can be directly utilised as plant fertilizer and the sludge can be used as additive for building materials.16 14 Cabral, João (October 10, 2010). "Water Microbiology. Bacterial Pathogens and Water".
International Journal of Environmental Research and Public Health. 7: 3657-703. doi:10.3390/ijerph7103657. PMC 2996186. PMID 21139855. (sourced from Wikipedia) and Article entitled, " Effects of idol immersion on the water quality parameters of Indian water bodies:
Environmental health perspectives"
Sayan Bhattacharya1,3,a, Arpita Bera1,b, Abhishek Dutta2, Uday Chand Ghosh3 1Department of Environmental Studies, Rabindra Bharati University, Kolkata, India 2Department of Environmental Studies, Visva Bharati University, India 3Department of Chemistry and Biochemistry, Presidency University, Kolkata, India, International Letters of Chemistry, Physics and Astronomy Online:2014-
10-02 ISSN: 2299-3843, Vol. 39, pp 234-263 doi:10.18052/www.scipress.com/ILCPA.39.234 2014 SciPress Ltd, Switzerland
15 Ibid 12 16 Ibid 12 ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 27/30
29. Apart from prohibiting the use of PoP made idols in religious festivals, it is also necessary for the appropriate government to prohibit use of oil paints and synthetic colours for painting and decorating all kinds of idols, whether made in clay or PoP or some other material as the oil or synthetic paints cause high level of damage to the environment. They pose serious threat to acquatic life and environment. They contain heavy metals like mercury, cadmium and lead which are neurotoxic and nephrotoxic and have bioaccumulative properties, which means once they enter acquatic life forms like fish, they continue to be in the food chain and end up in the food that we eat.17 The appropriate government, therefore, may give a serious thought to prohibiting use of oil and synthetic paints for colouring and decorating water immersible idols used in religious festivals by framing suitable rules.
30. All said and done, there can be no satisfactory solution without peoples' participation in keeping the environment safe, clean and healthy. Under article 51-A (g) of the Constitution of India, a duty has been cast upon every citizen of India to protect and improve 17 Study of the Impact of Plaster Of Paris (Pop) and Clay Idols Immersion in Water N.P. Shukla1, P.S. Bundela2*, S.K. Khare3 and S. Sarsaiya4 1,2M.P. Pollution Control Board, Bhopal (M.P.), India 3 Regional office, M.P. Pollution Control Board, Jabalpur (M.P.), India 4 International Institute of Waste Management (IIWM), Bhopal (M.P.), India International Journal of Scientific Engineering and Technology Volume No.3 Issue No.7, pp : 861-864 (ISSN : 2277-1581) 1 July 2014 ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 28/30 natural environment including forests, lakes, rivers and wild life. It would, therefore, be a welcome gesture by citizens of India if they change their mindset and only go for eco-friendly idols made in biodegradable materials like clay, food grains, sandal paste, flour, hay etc., and avoid non-biodegradable idols made in PoP and also avoid those idols which are painted and decorated in toxic oil paints. A large scale awareness is required to be created amongest masses. Central Government can do so by using its power under Section 3 of the Environment (Protection) Act, 1986. Central Government can also take recourse to its powers under the said Act to prohibit and regulate various activities hazardous to environment, which relate to use of non-biodegradable idols decked up in oil and synthetic paints in religious festivals. Awareness compaign can also be launched and regulatory measures taken by the State Governments. We are also of the view that a comprehensive legislation to prohibit and regulate manufacture and use of immersible idols of various deities in religious festivals is the need of the hour, cry of our pristine water bodies and clarion call of nature.
31. We conclude our discussion on the need for protecting environment by making a formal appeal to the State. We request the Central Government and also the State Government to take necessary steps in the matter for creating suitable awareness amongest the ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 29/30 citizenry regarding hazards involved in use of PoP idols and oil painted or synthetically decorated idols of Gods and Goddesses in various religious festivals. We further request appropriate Government to enact a comprehensive legislation putting in place suitable prohibitions and regulations as suggested earlier in the matter of use of PoP made idols and use of oil paints and synthetic colours in shading and decorating all idols, used temporarily in various religious festivals .
32. In the result, criminal application is allowed. First Information Report (F.I.R.) registered for the offence punishable under Section 295 r/w Section 34 of the Indian Penal Code vide crime No.80/2015 at Police Station Shivaji Nagar, Khamgaon and the criminal proceedings bearing Regular Criminal Case No.18 of 2015 instituted thereupon against the applicant and also against all other accused persons are hereby quashed and set aside. The respondent no.2, is directed to pay compensation of Rs.1,00,000/- (Rupees One Lac Only) to the applicant, which is treated as a fine imposed in this matter, within a period of one year from the date of the order, failing which same shall be recovered as fine imposed by this court. ::: Uploaded on - 08/05/2020 ::: Downloaded on - 12/06/2020 06:20:15 ::: 901-apl 192-16.odt 30/30
33. Learned Assistant Solicitor General of India and learned Assistant Public Prosecutor are requested to send copies of the judgment to appropriate authorities of Central Government and State Government respectively for necessary action in the matter.
JUDGE JUDGE
Kavita/manisha
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