Bombay High Court
Balasaheb @ Dhananjay S/O Haribhau ... vs The State Of Maharashtra And Another on 2 December, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
{1} CRI APPLN 1842 OF 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1842 OF 2022
. Balasaheb @ Dhananjay S/o Haribhau Jadhav
Age: 49 years, Occu.: Agriculture,
R/o. Gundale Bhawan, Kadrabad Plot,
Parbhani, District - Parbhani. ..Petitioner/
Applicant (Orig. Accused)
VERSUS
1. The State of Maharashtra,
Through Police Station Ofcer
Pathri Police Station, Pathri,
District - Parbhani.
2. Pradeep S/o Uttamrao Hirak
Age: 52 yrs., Occu.: Service,
As Police Head Constable,
R/o. Pathri Police Station,
Pathri, Dist. Parbhani. ..Respondents
...
Advocate for Applicant : Mr.S.S.Rathi
APP for Respondents-State : Mr.R.D.Sanap
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
DATE : 2 DECEMBER, 2022
JUDGMENT :- ( PER ABHAY S. WAGHWASE, J.) . By way of instant criminal application, petitioner / applicant herein has put-forth following main prayer alongwith interim relief :
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"C] By issuing appropriate orders First Information Report
bearing Crime No.0188/2022 registered with Pathri Police Station, Pathri, Dist.Parbhanion 28.04.2022 for ofence punishable under Section 153-A of Indian Penal Code may kindly be quashed and set aside.
C] Pending hearing and fnal disposal of this Application further proceedings in pursuance to registration of Crime No.0188/2022 with Pathri Police Station, Pathri, District Parbhani on 28.04.2022 for ofence punishable under Section 153-A of Indian Penal Code may kindly be stayed."
Factual Matrix
2. An FIR came to be lodged on behalf of State through Police Head Constable posted at Pathri Police Station, District Parbhani, alleging that informant is working in Secret Service Branch since 01-12-2021. Being a part of his duty, he was keeping surveillance on media. He claims that he came across a Facebook post uploaded at the instance of present applicant. Text of the post was that "on 26-04-2022 Iftaar party was arranged in the Hanuman Temple at Pathri. That some overzealous party workers of National Congress Party (NCP) had arranged Iftaar party in Hanuman Temple and thereby have desecrated the pious and religious place. That, sentiments of Hindu devotees are hurt and therefore, request ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {3} CRI APPLN 1842 OF 2022 is made on behalf of Bhartiya Janta Party (BJP) to take legal action. It is also stated in the text that representation to that extent had already sent to Police Inspector seeking action against present applicant, one P.D. Patil, Ex-District President, Rajendra Choudhari, Santosh Jogdand, City Chief, Madhukar Naik and others".
According to the informant, photocopy of the representation is also posted on Facebook. Informant brought all this to the notice of Police Inspector Mr.Samadhan Chavare and so he ordered registration of crime.
It is concluded in the FIR that because of act of posting such text on the Facebook social media platform, there would be enmity between two religions and hence crime was registered against present applicant and other accused under Section 153-A of the Indian Penal Code (IPC).
3. It is the above FIR that is now taken exception to by present applicant by praying to invoke inherent powers of this Court under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") for quashing the FIR.
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Submissions
4. The sum and substance of argument of learned Advocate for the applicant is that FIR itself is misconceived, false and baseless. He invited our attention to the Facebook post and the FIR, and would strenuously submit that it was mere attempt to show that Iftaar party was arranged and he intended to seek action for the same as it amounted to hurting feelings of Hindu devotees. He pointed out that there was no ill intention or malafde intention to promote enmity between two groups. It is his submission that from the contents of the FIR, apparently no ofence whatsoever, leave aside Section 153-A, is made out. According to him, Police machinery was expected to verify the facts prior to registration of FIR, but that has not been done so. It is his further submission that mere enquiry was sought by making representation and there was no other intention as is now sought to be drawn by the Police machinery. He also submitted that there were no consequences or reactions from any corner of the society and therefore, ofence under Section 153-A of IPC is not at all made out. Lastly, he concluded that instant FIR is purely politically motivated and therefore, prosecution on the basis of said FIR results in abuse of process of law. Hence, he prayed to grant ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {5} CRI APPLN 1842 OF 2022 relief by quashing of FIR.
5. On behalf of State, application is strongly opposed pointing out that the informant came across Facebook post on the account of present applicant. By uploading the said post, ofence under Section 153-A of IPC has been committed. It would be for him to prove that he had no such ill intention. Representation was also received. After thorough preliminary enquiry, crime is registered and therefore, it is his submission that for the said act, applicant has to face legal consequences and so he prays to dismiss the application.
6. Before adverting to the merits of the case, it would be proftable to give brief account of settled legal position on the point of scope and exercise of inherent powers under Section 482 of Cr.P.C.
In the landmark case of Inder Mohan Goswami and Anr. Vs. State of Uttaranchal and Ors., reported in (2007) 12 SCC 1, it was observed as under:
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under section 482 of Cr.P.C. Every High Court has inherent powers to act ex ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {6} CRI APPLN 1842 OF 2022 debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the Court."
(i) to give efect to an order under the Code;t
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under section 482 of Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justifed by the tests specifcally laid down in this section itself. Authority of the Court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justifed in preventing injustice by invoking inherent powers in absence of specifc provisions in the statute." Recently in the case of Mahendra K.C. Vs. State of Karnataka and Another; (2022) 2 Supreme Court Cases 129, the Hon'ble Apex Court in para No.19 observed as under:
"19. The High Court has the power under Section 482 to issue such orders as are necessary to prevent the abuse of legal process or otherwise, to secure the ends of justice. The law on the exercise of power under Section 482 to quash an FIR is well-settled. In State of Orissa v. Saroj Kumar Sahoo;t (2005) 13 SCC 540, a two-Judge Bench of this Court, observed that : (SCC pp. 547-48, para 8) "8. ... While exercising the powers under the section, the court does not function as a court of appeal or revision.
Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justifed by the tests specifcally laid down in the section itself. It is to be exercised ex debito ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {7} CRI APPLN 1842 OF 2022 justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justifed to quash any proceeding if it fnds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no ofence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any ofence is made out even if the allegations are accepted in toto."
7. The ofence which is registered in the alleged episode is Section 153-A of the IPC. As we are called upon to decide whether prima facie case has at all being made out against present applicant for commission of above ofence, it would be relevant to reproduce the said provisions :
"153-A Promoting enmity between diferent groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.--::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 :::
{8} CRI APPLN 1842 OF 2022
(1) Whoever--
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between diferent religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between diferent religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or
(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fne, or with both.
Ofence committed in place of worship, etc.-- (2) Whoever commits an ofence specifed in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {9} CRI APPLN 1842 OF 2022 with imprisonment which may extend to fve years and shall also be liable to fne."
8. Promotion of enmity between two diferent groups on the grounds of religion, race, place of birth, residence, language etc. or doing such acts which are prejudicial to the maintenance of harmony is made punishable in the above ofence.
9. There are few landmark judgments on the applicability and as to when said penal provision under Section 153-A of the IPC is gravitated. A few pronouncements that could be referred here are as under:
(a) Bilal Ahmed Kaloo v. State of A.P.
[(1997) 7 SCC 431]
In this case, the Court stated that to attract the ofence of Section 153-A IPC, it is important to clearly check whether the alleged enmity is caused between two diferent groups. Therefore, the mere mention of a religious community while inciting the religious sentiments of one community cannot constitute an ofence under Section 153-A IPC.
(b) Amish Devgan v. Union of India and Others [(2021) 1 SCC 1] In this recent 2020 judgment, the Supreme Court clarifed ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {10} CRI APPLN 1842 OF 2022 the scope as well as the essential ingredients to constitute an ofence under Section 153-A IPC. In this case, the Court interpreted the scope of the term 'public tranquility' under Section 153A IPC and held that the term must be read in conjunction with the term 'public order'. Therefore, this means that normal and routine issues of law and order cannot come within the ambit of public tranquility and therefore, cannot constitute and ofence under Section 153-A IPC. The Court also stated that it is important that misuse and abuse of this provision is prevented at all costs.
(c) Similarly, the Hon'ble Apex Court in Ramesh vs Union of India [(1988) 1 SCC 668] has held that "words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, frm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The standard of an ordinary reasonable man or as they say in English "the man on the top of a Clapham omnibus" should be applied."
(d) In the very recent case of Patricia Mukhim v. State of Meghalaya and ors. [(Criminal Appeal No.141 of 2021) (@ SLP (Cri.) No.103 of 2021)], the Hon'ble Apex Court held as under;t "10. The gist of the ofence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between diferent classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {11} CRI APPLN 1842 OF 2022 worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. "
10. The following distinct features can be culled out from the above discussed pronouncements :
(i) The words, statements, or signs must cause or likely to cause enmity, hatred and disturbance of harmony between diferent racial, religious, and language groups.
(ii) The alleged enmity must be caused among two or more communities. The mere intention of the other community is not sufcient to attract punishment under Section 153-A IPC.
(iii) The presence of mens rea i.e. the person must have the intention of causing enmity and disharmony between diferent groups and communities of people.
(iv) The words, spoken or written, must be of a serious nature and must directly hurt the deep religious sentiments of the group or community.
(v) Public tranquility is synonymous with the term 'public
order'. This means that disturbance of routine issues of
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law and order does not attract this ofence.
11. Thus, to sum up, only when written or spoken words which have a tendency or propensity of creating public disorder or disturbance of law and order thereby afecting public tranquility, law needs to be enforced for prevention of the said activity. The gist of the said ofence, thus, is the intention to promote feeling of enmity or hatred between diferent classes of people. Therefore, intention to cause disorder or incite the people in indulging in violence is sine qua non of the ofence under Section 153-A of the IPC and prosecution has to discharge the burden of proving existence of mens rea in order to succeed. These essentials have also been observed in the case of Balwant singh and Anr. vs. State of Punjab [(1995) 3 SCC 214].
12. Having discussed settled legal position on the above penal provision, we proceed to deal with the facts of the case in hand to ascertain whether the alleged post on Facebook dated 28-04-2022 was at all intentionally uploaded for promoting enmity between two groups/religions. ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 :::
{13} CRI APPLN 1842 OF 2022
13. We have already reproduced the FIR in the aforesaid paragraph. It is evident from the record that present applicant is afliated to a political party. He seems to have uploaded post, the gist of which in translated form is as under :
"Few over-zealous activists of Rashtravadi Congress Party in Pathri town, have sacrileged the piousness of Hanuman Mandir at Shikshak Colony by arranging Iftaar Party. The Bharatiya Janata Party has absolutely no objection for any religion or their Iftaar Party, however, arranging the Iftaar Party in a temple which is considered as sacred for Hindus has ofended the feelings of entire Hindu community and it has been demanded by Bharatiya Janata Party that, strict action be taken against all the responsible persons by making a representation to the Police Inspector, Pathari Police Station. The representation is signed by the councillor of BJP Balasaheb Jadhav, P D Patil, the former District President, Dr Rajendra Chaudhari, Santosh Jogdand, the Town Party Chief and Madhukar Naik etc."
14. As per the said post the arrangement of Iftaar party, which is specially meant for Muslim religion, was arranged in Hanuman Temple premises in Pathri on 26-04-2022. Name of organizers of the said party and who attended it, has not come on record. Only allegations were attributed to NCP. It is also not known as to who had reacted to the said post, which was uploaded at the instance of present applicant. There is no ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {14} CRI APPLN 1842 OF 2022 material regarding reactions of persons who belonged to either Hindu religion or Muslim religion. There seems to be a representation under the signatures of BJP party workers including applicant herein, addressed to the Police Inspector, Police Station, Pathri, informing about arrangement of Iftaar party and further informing that temple is a sacred place of Hindu and by arrangement of Iftaar party in the temple, it amounts to hurting religious feelings of Hindu. It was further stated in the said post that there is no opposition or objection to any religion or even to the Iftaar party, however, purposely arranging such party in a temple may amount to desecration of the temple and it may create enmity between two religions. Hence, enquiry was sought followed by strict action against those who indulged in such activity.
Now the above representation appears to have prompted informant - Pradeep Uttamrao Hirak, Police Head Constable to lodge complaint against present applicant for commission of ofence under Section 153-A of the IPC.
Summation
15. Bearing in mind the above discussed legal position on the ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {15} CRI APPLN 1842 OF 2022 aspect of scope and inherent powers under Section 482 of Cr.P.C. and legal requirements for attracting ofence under Section 153-A, we are of the considered opinion that admittedly here applicant has allegedly uploaded a post of the above event over his own mobile phone and on his own Facebook account. It is worth-noting that when a person uploads any post on media like Facebook, it is always fashed only on the Facebook accounts with whom said sender has acquaintances or is friendly with. It is not directed to public at large. Secondly, objection of the applicant was only with regards to conducting such event in a temple. As it is very clearly stated in the representation to Police that, there is no opposition to Muslims or the said Iftaar party, in our considered opinion, there was no ill intention or even mens rea in indulging in uploading said post. It is seen that it was not an attempt or intention that one religion should be pitted against another. Applicant claims that he merely intended to show that his party has sought objection and nothing beyond it. Mere action has been sought to prevent any untoward incident or faring of communal emotions, in future.
That apart, very informant and incharge Police Sub- Inspector seem to have put on record afdavits before us ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {16} CRI APPLN 1842 OF 2022 clarifying that no incident or reaction was ventilated by any member of either of the communities. No untoward incident had also occurred.
16. Looking the material from legal angle, in our considered view, the gravamen i.e. mens rea is patently missing. Essential ingredients for attracting ofence under Section 153-A are not available in the material before us. Only, written and spoken words, which have potential of triggering public disorder or disturbance or law and order, is that what would attract the above legal provision. This is precisely missing from the material before us.
17. In the case of Patricia Mukhim (supra) the Hon'ble Apex Court has clarifed and held in paragraph 9 that, "the intention to cause disorder or incite people to violence is the sine quo non of the ofence under Section 153-A of IPC and the prosecution has to prove the existence of mens rea in order to succeed."
18. Here also, as stated above, prosecuting authority has candidly admitted on afdavit that there was no public disorder ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 ::: {17} CRI APPLN 1842 OF 2022 or violence in consequence to the uploaded Facebook post. Therefore, applying settled legal principles laid down in various rulings, which are referred in aforesaid paragraphs and on close scrutiny of the alleged Facebook post, we are convinced that taking the said material on its prima facie face value, no ofence under Section 153-A is constituted or made out.
The sequitur or inference of above analysis of Facebook post allegedly at the hands of applicant is that, no ofence under Section 153-A of IPC can be said to be made out.
19. In the above background and circumstances, lodgement of FIR against present applicant is apparently misconceived and it defnitely amounts to abuse of process of law necessitating our intervention. Hence, we proceed to pass following order :
ORDER
(i) Criminal Application is allowed in terms of prayer clause-'C'.
( ABHAY S. WAGHWASE ) ( SMT. VIBHA KANKANWADI ) JUDGE JUDGE SPT ::: Uploaded on - 08/12/2022 ::: Downloaded on - 06/01/2023 16:21:49 :::