Karnataka High Court
Mr A Madhukar vs State Of Karnataka on 6 February, 2020
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6th DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.1132/2019
BETWEEN:
1. MR.A.MADHUKAR
AGED ABOUT 40 YEARS,
S/O SHRI P.L.AUGUSTEEN,
No.102, RAJIV GANDHINAGAR,
TATANAGAR CIRCLE, KODIGEHALLI,
BENGALURU-560 056,
KARNATAKA.
2. MR.KIRAN KUMAR
AGED ABOUT 37 YEARS,
S/O SHRI RAYAPPAN,
No.486, 1ST 'A' CROSS,
4TH MAIN, J.R.D. TATA NAGAR,
KODIGEHALLI, SAHAKARA NAGAR,
BENGALURU-560 092,
KARNATAKA.
...PETITIONERS
(BY SRI MOHAN RAJ DORAISWAMY A., ADV.)
AND:
1. STATE OF KARNATAKA
BY SANJAY NAGAR PS.,
BENGALURU, KARNATAKA,
STATE PUBLIC PROSECUTOR,
2
HIGH COURT BUILDING,
BENGALURU-560 001.
2. MRS.MANJULA MURTHY
AGED ABOUT 39 YEARS,
W/O VLN MURTHY,
No.4/1, 1ST CROSS,
1ST MAIN ROAD,
BASAVESHWARA LAYOUT,
NAGASHETTIHALLI,
BENGALURU-560 094,
KARNATAKA.
...RESPONDENTS
(BY SRI V.S.HEGDE, SPP-II FOR R1;
R2-SERVED AND UNREPRESENTED)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF THE CODE OF
CRIMINAL PROCEDURE, PRAYING TO (a) SET ASIDE THE
IMPUGNED ORDER ANNEXURE-A DATED 24.07.2019,
PASSED BY THE HON'BLE 8TH ADDITIONAL CMM.,
BENGALURU AND ALLOW THE DISCHARGE APPLICATION,
ANNEXURE-B IN C.C.No.8409/2019 AND (b) DISCHARGE
THE PETITIONER FROM THE ENTIRE PROCEEDINGS IN
C.C.No.8409/2019 IN THE COURT OF THE HON'BLE 8TH
ADDITIONAL CMM., BENGALURU.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 30.01.2020 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY THE
COURT PRONOUNCED THE FOLLOWING:
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ORDER
This criminal revision petition is filed by the petitioners/accused Nos.1 and 2 under Section 397 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) assailing the order of dismissal of application filed under Section 239 of Cr.P.C., passed by VIII Addl. CMM, Bangalore, (hereinafter referred to as 'trial Court' for short) in C.C.No.8409/2019 dated 24.07.2019.
2. Heard the learned counsel for the petitioners/accused Nos.1 and 2 and the learned SPP for respondent No.1-State.
3. The ranks of the parties is retained for the sake of convenience.
4. The case of the petitioners is that the respondent - Sanjay Nagar police filed the charge sheet against accused Nos.1 and 2 for the offences punishable 4 under Sections 295A and 448 r/w Section 34 of Indian Penal Code (hereinafter referred to as 'IPC' for short). On the complaint filed by one Smt. Manjula Murthy alleging that on 15.07.2018 at about 9.30 p.m., accused Nos.1 and 2 trespassed into her house and demanded her to convert into Christianity by leaving the Hindu religion and if she comes to Christianity religion and they will give financial aid to her and also they said to have insulted the Hindu religion. The complainant raised hue and cry. Then the neighbors came and sent those persons out. After receipt of the complaint, the police registered a case in Crime No.145/2018 for the offences punishable under Sections 448 and 295A r/w Section 34 of IPC, the accused were arrested and later they were released on bail. The police filed the charge sheet and after taking cognizance, accused Nos.1 and 2 filed the application for discharge under Section 239 of Cr.P.C. The same was rejected by the trial Court. 5 Hence, the petitioners are before this Court by way of revision petition.
5. The learned counsel for the petitioners /accused Nos.1 and 2 has challenged the very taking of cognizance without any proper sanction. There is non-application of mind while according sanction by the State for prosecuting the petitioners. It is further contended that there is no essential ingredient made out in the charge sheet and also it is absolutely groundless to frame charges against the accused persons and they have not at all insulted with any malafide or malicious intention in order to frame the charge under Section 295A of IPC. The arrest of the accused persons is also not intimated to their relatives. Thereby, the police violated the guidelines of the Hon'ble Supreme Court. The witnesses examined by the Investigation Officer do not make out any case against the accused. They are not at all eyewitnesses. They 6 came to know the alleged incident through the complainant. Therefore, the charges are groundless. Hence, accused persons are entitled for discharge.
6. In support of the argument, learned counsel for the petitioners/accused Nos.1 and 2 relied upon the judgments of the Hon'ble Supreme Court and also judgment of this Court in the cases of:
(i) Mahendra Singh Dhoni Vs. Yerraguntla Shyamsundar and Another in Transfer Petition (Criminal) No.23/2016 decided on 20.04.2017,
(ii) Bijoe Emmanuel Vs., State of Kerala reported in AIR 1987 SC 748
(iii) Jhancy Margaret and Others Vs. State of Karnataka in Crl.P.No.4676/2013 decided on 18.12.2013 and
(iv) Mikha Barboza and Others Vs. State of Karnataka and Another in Crl.P.No.1873/2010 decided on 13.07.2010.
Hence, prayed for allowing the revision petition. 7
7. Per contra, the learned SPP for respondent No.1-State supported the order passed by the trial Court by contending that there is prima facie material placed on record to frame the charges against the accused persons for the alleged offences punishable under Sections 448 and 295A r/w Section 34 of IPC. C.Ws.2 to 5 who are the neighbors have stated that the accused persons committed the alleged offence. The Court cannot evaluate the materials meticulously while framing charges. The accused are entitled for discharge, only if the alleged charges are groundless. The learned SPP has relied upon the judgment in the case of Kurianchan Chacko and Others etc., Vs., State of Kerala reported in 2007 Cr.L.J 4458. Therefore, the learned SPP prayed for dismissing the revision petition.
8. Upon hearing the learned counsel for the parties and on perusal of the record, the points that arise for consideration before this Court are: 8
1. Whether the sanction accorded by the State under Section 196 of Cr.P.C is without application of mind. Therefore, the sanction required to be set aside?
2. Whether the petitioners are entitled for discharge as the charges are groundless?
9. With regard to the offence committed under Section 295A of IPC is concerned, the sanction of the State is required under Section 196 of Cr.P.C. For the convenience, the definition of Section 196(1)(a) of Cr.P.C read as follows:
"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under section 153A, [Section 295 A or sub-
section (1) of section 505] of Indian Penal Code, 1860
(b) x x x
(c) x x x"
10. As per Section 196 (1)(a) of Cr.P.C, the Court shall not take any cognizance without previous sanction 9 of the State Government for the offence punishable under Section 295A of IPC. Admittedly, the State has accorded sanction for prosecuting the case against the petitioners, which is produced as Annexure-K.
11. On perusal of the sanction order, which shows that the Sanctioning Authority has stated that there is prima facie material for having committed the offence, but there is no discussion for having satisfied with the offence committed by the accused in order to accord sanction for prosecution to proceed against the accused under Section 295A of IPC. Absolutely, there is no satisfaction in respect of the material placed on record and application of mind to come to the conclusion that there is prima facie case for according sanction. Therefore, the learned counsel for the petitioner has rightly contended that the Sanctioning Authority has not at all applied the mind while granting sanction. This Court in Jhancy Margaret's case (supra) 10 has quashed the sanction order for issuing the sanctioning order mechanically. In another judgment in Mikha Barboza's case (supra), on the same point, this Court has quashed the sanction accorded. Therefore, in the case on hand also, the Sanctioning Authority has not at all applied the mind for having satisfied with the material in order to accord sanction. However, this Court can set aside the sanction order for the purpose of issuing fresh sanction order.
12. However, on the merits of the case, in order to frame charges under Section 295A of IPC, there must be ingredients in order to show that these accused persons committed the offence, wherein it requires that there must be deliberate and malicious acts intended to outrage the religious feelings of the complainant and by insulting its religion or religious belief. For the convenience, the definition of Section 295A of IPC reads as under:
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"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."
13. On a bare reading of the above provision, the first part, it requires that (i) there must be deliberate and malicious intention to outraging the religions feelings of C.W.1; (ii) by words, either spoken or written, or by signs or by visible representations or otherwise;
(iii) insults or attempts to insult their religion or the religious beliefs of that class, then only it is punishable. On a reading of the complaint, the statement made by one Smt. Majula Murthy shows that on the day of 12 incident i.e., on 15.7.2018, the accused came inside the house by pressing the Calling Bell and after opening of the door, they came inside the house and told the complainant not to believe her God, but to believe Jesus and that they will give some financial assistance every month and also tried to entice the complainant to believe Jesus. Except this bare averment, nothing has been collected by the Investigation Officer to show that the accused persons intentionally or with malafied intention tried to outrage the Hindu god or belief of Hindu religion or tried to insult the complainant or the Hindu god. Absolutely, there is no actual words whatsoever uttered by the accused in order to frame the charges to bring the offence under the provisions of Section 295A of IPC or to infer the accused for having insulted the religious feelings of the complainant. The other three witnesses all came to the house and they came to know from the complainant that the accused told her to pray to Jesus. Except the bald contention 13 that they asked her to believe Jesus and not to believe her god/religious, that itself cannot constitute an offence under Section 295A of IPC. In this regard, the learned counsel also relied upon the judgment of the Hon'ble Supreme Court in Mahendra Singh Dhoni's case (supra) wherein, at paragraph Nos.7, 11, 12, 13, it has been held as under:
"7. On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalized and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalize only those acts of insults to or those varieties of attempts to insult the religion or religious 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 14 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. It is pertinent to state here that very monthly business magazine was the subject matter in Criminal Appeal No.843 & 847 of 2006, which were allowed, as mentioned hereinbefore. At this juncture, Mr. Sanchit Guru, learned counsel submitted that he is representing the co-accused before the trial Court in the complaint case. Once the complaint petition is quashed in entirety because of lack of allegations against the accused persons, the same benefit has to flow in favour of the accused no.1. According to him, to keep the trial alive would not only be the abuse of the process of the court, but also tantamount to travesty of justice.
12. In this regard, we may refer to a three- Judge Bench decision in Harbhajan Singh v. State of U.P., (1982) 2 SCC 101 wherein this Court granted benefit in appeal to one of the accused persons, and thought it appropriate that similar benefit should be extended to the 15 co-accused also. It is interesting to note that the said benefit was extended despite the fact that the earlier appeals of that accused were dismissed by this Court on an antecedent date. It is profitable to reproduce the passages from the said judgment :-
"19. In the circumstances hereinabove stated, I am of the opinion that it will be manifestly unjust to allow the death sentence imposed on the petitioner to be executed. The question that, however, troubles me is weather this Court retains any power and jurisdiction to entertain and pass any appropriate orders on the question of sentence imposed on the petitioner in view of the fact that not only his special leave petition and review petition have been dismissed by this Court but also the further fact that his petition for clemency has also been rejected by the President.
20. Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Arts. 32 and 136 of the Constitution I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extra- ordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of 16 justice. Having regard to the facts and circumstances of this case, I am of the opinion that this is a fit case where this Court should entertain the present petition of Harbans Singh and this Court should interfere."
Be it noted, similar view has been taken in Akhil ali Jehangir Ali Sayyed V. State of Maharashtra in (2003) 2 SC 708.
13. In the case at hand, as the complaint is quashed, needless to say, for the reasons for which the complaint is quashed shall squarely apply to the co-accused, who is the Editor of the magazine. Therefore, we apply the same principle and quash the complaint even against co-accused. We may hasten to clarify that we have passed the order of quashment keeping in view the criminal miscellaneous petition filed in this case for quashing and also not to allow more space for abuse of the process of the Court."
14. In view of the judgment of the Hon'ble Supreme Court in the above decision, wherein by relying upon the judgments of State of Haryana and Others Vs. Bhajan Lal and Others reported in 1992 17 Supp. (1) SCC 335, Harbhajan Singh Vs. State of U.P. reported in (1982) 2 SCC 101 and Akhil ali Jehangir Ali Sayyed Vs. State of Maharashtra reported in (2003) 2 SCC 708, the Hon'ble Supreme Court quashed the charges for the offence under Section 295A of IPC. In the case on hand also, there is no ingredient in order to frame charges against the accused persons and nothing has been seized by the police from the accused in order to show that they brought any written pamphlets or any other material or money when they allegedly visited the house of the complainant. Even otherwise, if they came to the house and approached the complainant for the purpose of propagating particular religion and they want to give some money and asked to believe some other religion that itself is not an offence. On the other hand, preaching and propagating particular religion is the right guaranteed under Article 25 of the Constitution of India. In this regard, the judgment of the Hon'ble 18 Supreme Court in the case of Bijoe Emmanuel's (supra) case has held as under:
"As brought out in Paragraph 4.8 on page 8 of the Revision Petition, This Hon'ble High Court in the judgment dated 10-08-2015 in Nagayya v. State of Karnataka & Ors. on a Writ Petition No.102268/2015 (GM-RES), while upholding the order of the Karnataka State Human Rights Commission and directing further compensation to Mr. M. Sandeep Muniswamy, a member of Jehovah's Witnesses, for the violation of his constitutional and fundamental human right to profess his religion held that:
"If somebody wants to practice/propagate a particular religion, he cannot be attacked by persons belonging to any other denomination or religion or faith. He is entitled to every possible protection at the hands of the Police. The Police cannot abdicate their responsibility of protecting the individuals, who are exercising the rights guaranteed under Article 25 of the Constitution of India. Further, the protection guaranteed under Article 25 is not confined to matters of doctrine, but extends to acts done in exercise of the right to profess, practice and propagate religion freely."
Based on this and many other judgments of the Hon'ble Apex Court and various Hon'ble High Courts, our humble submission 19 to your Lordship is to set aside the impugned order of the ACCM, Annexure A be set aside as the impugned order is erroneous in fact and in law and discharge the Petitioners from the entire proceedings in CC No.8409/2019 as Prima facie no case is made out of the impugned FIR and charge sheet. Also apart from abuse of process of law it would be a sheer waste of judicial and public time and money to permit the proceedings to continue against the Petitioners on the impugned FIR. At the same time the Petitioners will be dragged into unnecessary hardships and harassment. It is onerous and the Petitioners have to go through the ordeal of trial even when no material to criminalize them. Therefore this Hob'ble Court is kindly requested to quash the impugned FIR at the threshold in the interest of justice."
15. In view of the judgment of the Hon'ble Supreme Court, absolutely, even if the petitioners visited the house of complainant and preached/propagated to follow Jesus Christ, it is not an offence under Section 295A of I.P.C. Absolutely, there is no ground for framing of charges. Accused Nos.1 and 2 deserve to be discharged.
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16. Though, it is well settled that the Court cannot go in deep and evaluate the documents and statements in order to frame charges, but when there is no ground to proceed against the accused, the Court is required to verify whether there is a prima facie material to admit the case for trial irrespective of it may lead to convict or acquittal, but when there is a groundless allegation, the Court should discharge the accused in the beginning stage by exercising power under Section 239 of Cr.P.C. Therefore, I proceed to pass the following ORDER Criminal Revision Petition is allowed. The order dated 24.07.2019 passed in C.C.No.8409/2019 by VIII Additional C.M.M., Bengaluru, is hereby set aside. The petitioners/accused Nos.1 and 2 are discharged for the offences punishable 21 under Sections 448 and 295A r/w Section 34 of Indian Penal Code.
Sd/-
JUDGE PB