Bombay High Court
Mohd. Rizwan Mohd. Shafi Punjani vs State Of Maharashtra Thr. Its P.S.O., ... on 25 November, 2025
2025:BHC-NAG:12867-DB
Cri.APL118.19.odt 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL)NO. 118/2019
1. Mohd. Rizwan Mohd. Shafi Punjabi,
Aged about 40 years, Occ- Business,
R/o. Sadi Pura, Karanja, Tah. Karanja,
Dist. Washim
... APPLICANT
...VERSUS...
1. State Of Maharashtra,
Through Its Police Station Officer,
Police Station, Karanja, Tah. Karanja,
Dist. Washim
2. Mohammad Salim Mohd. Ismail,
Aged about 40 years, Occ- Business,
R/o. Near Kabrasthan, Bypass Road,
Karanja, Tah. Karanja, Dist. Washim
...NON-APPLICANTS
---------------------------------------------------------------------------------------------
Mr. R. K. Thakkar, Advocate for applicant
Mr. Mir Nagman Ali, Advocate for non-applicant no.2.
Mr. M. J. Khan, APP for non-applicant/State
---------------------------------------------------------------------------------------------
CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 20th NOVEMBER, 2025.
PRONOUNCED ON : 25th NOVEMBER, 2025.
Cri.APL118.19.odt 2/13
JUDGMENT (PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned Counsel for the parties.
2. The applicant has filed the present application for quashing and setting aside the First Information Report No. 456 of 2018 for offences punishable under Sections 294, 506 read with Section 34 of the Indian Penal Code, 1860 as also under Section 66(A) of the Information Technology Act, 2000.
3. As per the contents in the First Information Report the non- applicant no. 2 on 03.11.2018 lodged a complaint with the non- applicant no. 1 police station that the applicant published certain photographs under the banner of "Shiv Sena" and words therein "Chalo Ayodhya" were stated therein. This particular poster alongwith photograph of the non-applicant no. 2 was circulated on Whatsapp and the said non-applicant firstly became aware of this fact through one of his friend namely Ubedbeg Jahedbeg Mirza Mirza on his mobile. The First Information report further states that the non-applicant no. 2 is a Muslim, hence the sentiments of his Cri.APL118.19.odt 3/13 community were very much disturbed due to the circulation of photographs as stated above. It is this First Information Report which is challenged in the present application on various grounds as stated in the application.
4. We have heard Mr. R. K. Thakkar, learned counsel for the applicant, we have also heard Mr. M. J. Khan learned Additional Public Prosecutor for the State and Mr. Mr. Mir Nagman Ali, learned counsel for the non-applicant no.2.
5. Mr. R. K. Thakkar after taking us through the First Information Report and the consequent charge sheet filed on record states that even if the allegations in the First Information Report are taken at their face value they do not make out any offence as punishable under the Sections mentioned (supra). He also states that there is no obscenity in the messages and therefore Section 294 is not attracted. In his submission even if Section 295A of IPC is applied, there is no question of any intention to outrage religious feeling of any class by insulting its religion or religious beliefs. He therefore, submits that the First Information Report and the Cri.APL118.19.odt 4/13 consequent charge sheet is without any merit and does not make out any case triable in a criminal prosecution. He therefore, prays that the said proceeding be quashed.
6. Per contra, the learned APP vehemently opposes the submissions made by the learned counsel for the applicant and states that during investigation statement of the present complainant has been recorded who stated that their religious sentiments were hurt due to the circulation of the said message on mobile phone. He also states that as far as invocation of Section 66(A) of the Information and Technology Act, 2000 is concerned same mistake on the part of the investigating agency and it could be deleted while after taking permission from the learned Magistrate. He states that there is enough material on record for prosecution of the applicant for offences punishable under Sections 294, 504 and 506 of the Indian Penal code, 1860. He therefore, prays for dismissal of the application. The learned counsel for the non-applicant no. 2 also supports the contentions made by the learned APP and prays for dismissal of the application. Cri.APL118.19.odt 5/13
7. In the backdrop of these facts and circumstances we have perused the material on record, Section 294 of the Indian Penal Code, 1860 reads as under :-
"Obscene acts and songs.--
Whoever, to the annoyance of others--
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
8. The Law regarding obscenity has been culled out by the Hon'ble Supreme Court in the celebrated judgment of Apoorva Arora and Ors. Vs. State (Govt. of NCT of Delhi) and Ors. reported in (2024) 6 SCC 181 the relevant paragraphs would be as under :-
"11. This Court has laid down the meaning, test, standard, and method for determining whether some material is obscene in the context of Section 292 of the Indian Penal Code.
12. Section 292 defines 'obscene' as a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object that is lascivious, appeals to the prurient interest, or has such effect, if taken as a whole, that tends to deprave and corrupt persons who are likely to read, see or hear the matter contained in it. The provision criminalises the sale, distribution, public Cri.APL118.19.odt 6/13 exhibition, circulation, import, export, etc of obscene material. The provision excludes such material when the publication is justified as being for public good on the ground that it is in the interest of science, art, literature, or learning or other objects of general concern; such material is kept or used for bona fide religious purposes; it is sculptured, engraved, painted or represented on or in ancient monuments and temples. The relevant portion of Section 292 has been extracted for reference:
"292. Sale, etc., of obscene books, etc.- (1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it."
It is evident that "obscenity" has been similarly defined in Section 292 and Section 67 as material which is:
i. lascivious; or ii. appeals to the prurient interest; or iii. its effect tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. However, the difference between them is only that Section 67 is a special provision that applies when the obscene material is published or transmitted in the electronic form. Since the alleged offending material is a web-series, the case must be considered under Section 67 of the IT Act but the same test for obscenity as laid down under Section 292 will apply since the provisions are similarly worded in that respect. In this context we will examine how obscenity is understood.Cri.APL118.19.odt 7/13
17. In KA Abbas v. Union of India MANU/SC/0053/1970 : 1970:INSC:200: (1970) 2 SCC 780, para 48 the Court summarised the test and process to determine obscenity as follows:
"(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to find the extent of permissible action is not necessary. (3) The delicate task of deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall. (5) The interests of contemporary society and particularly the influence of the book, etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds must determine the result. (8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and Cri.APL118.19.odt 8/13 expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book form without the medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability."
25. The law on determining obscenity has been summarised and reiterated in Ajay Goswami v. Union of India MANU/SC/5585/2006 : 2006:INSC:995: (2007) 1 SCC 143 where the Court cited both Indian precedent and American jurisprudence. The principles that can be culled out from the judgment are as follows:
i. Obscenity must be judged with regard to contemporary mores and national standards.
ii. The work must be judged as a whole and the alleged offending material must also be separately examined to judge whether they are so grossly obscene that they are likely to deprave and corrupt the reader or viewer. There must be a clear and present danger that has proximate and direct nexus with the material.
iii. All sex-oriented material and nudity per se are not always obscene.
iv. The effect of the work must be judged from the standard of an average adult human being. Content cannot be regulated from the benchmark of what is appropriate for children as then the adult population would be restricted to read and see only what is fit for Cri.APL118.19.odt 9/13 children. Likewise, regulation of material cannot be as per the standard of a hypersensitive man and must be judged as per an "ordinary man of common sense and prudence". v. Where art and obscenity are mixed, it must be seen whether the artistic, literary or social merit of the work overweighs its obscenity and makes the obscene content insignificant or trivial. In other words, there must be a preponderating social purpose or profit for the work to be constitutionally protected as free speech. Similarly, a different approach may have to be used when the material propagates ideas, opinions, and information of public interest as then the interest of society will tilt the balance in favour of protecting the freedom of speech (for example, with medical textbooks).
vi. The Court must perform the task of balancing what is artistic and what is obscene. To perform this delicate exercise, it can rely on the evidence of men of literature, reputed and recognised authors to assess whether there is obscenity."
9. Furthermore, as rightly relied by the learned counsel for the applicant, in the case of Mahendra Singh Dhone Vs. Yerraguntla Shyamsundar And Anr. reported in (2017) 7 SCC 760, in paragraph 6 the Hon'ble Apex Court has recorded as under:-
"6. On a perusal of the aforesaid passages, it is clear as crystal that Sectionn 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 beliefs of a class of citizens which are perpetrated with the deliberate and malicious Cri.APL118.19.odt 10/13 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 Benchh 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."
10. Further more in the same judgment paragraph 9 the Hon'ble Apex Court has held as under:-
"9. To satisfy ourselves, we have bestowed our anxious consideration and scrutinised the allegations made in the complaint petition and we have no hesitation in holding that the allegations remotely do not satisfy the essential ingredients of the offence and, therefore, applying the principle stated in State of Haryana Vs. Bhajan Lal, we quash the complaint proceedings initiated against the petitioner."
11. In the light of these facts, if we peruse the allegations made in the First Information Report, the allegations seems to be only regarding a photograph of the applicant appearing on a banner of a particular political party with a particular message. Therefore there is no question of any obscenity being involved in the said banner. It is not even the prosecution case that the banner has caused annoyance to other which is also sin-qua-non for attracting the Cri.APL118.19.odt 11/13 offence of obscenity. Furthermore, there is also no ingredient to attract the offence punishable under Section 506 of the Indian Penal Code which speaks about criminal intimidation. In fact, even if Section 295A of the Act is applied, which speaks about the deliberate and malicious act intended to outrage religious feeling of any class by insulting his religion or religious beliefs; the same also is not attracted. In the present case, however, even if assuming the allegations to be true and on its face value, it is not even the first in- formants case that by morphing his picture or putting in the banner is concerned, there was any malicious act intending to outrage the religious feelings of a particular caste. Therefore, in our view even Section 295A is not attracted.
12. In the light of these facts and the law enunciated by the Hon'ble Supreme Court in the judgments referred to (supra). We are of the considered view that the continuance of the criminal pro- ceedings would be an abuse of process of Court as against the appli- cant. The situation squarely falls within the well laid down parame- ters of judgment of Hon'ble Apex Court in the case of State of Haryana & Others vs. Ch. Bhajan Lal & Others reported in 1992 Cri.APL118.19.odt 12/13 Supp. (1) SCC 335 and more particularly parameters laid down in para nos. 1, 3 and 7 is 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 in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2).......
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4).......
(5).......
(6).......
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is mali-
ciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
13. In that view of the matter, we passed the following:-
ORDER
(i) Application is allowed.
(ii) The First Information Report bearing No. 0457/2018 dated 01.12.2018 registered by non-applicant no. 1 for offence punishable under Sections 506, 294, read with Section 34 of the Indian Penal Code, 1860 and Section 66(A) of the Information Technology Act, 2000 and also the charge-sheet No. 319/2025 pending before the Cri.APL118.19.odt 13/13 Judicial Magistrate First Class, Kranja Lad beaing R.C.C. No. 991/2025 is quashed and set aside.
(iii) Application is allowed in above said terms. (NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.) Shubham