Bombay High Court
State Of Maharashtra vs Mohammed Yusuf Noormohammed And Ors. on 20 December, 1988
Equivalent citations: 1989(1)BOMCR1
JUDGMENT V.S. Kotwal, J.
1. Heard Shri A.S. Bobade, the learned Advocate General for the petitioner-State, Shri S.V. Bhat, the learned Counsel for respondent No. 1, Shri K.Z.N. Jahangir, the learned Counsel for respondent No. 2 and Shri K.M. Desai, the learned Counsel for respondent No. 3.
2. An age old difference in the philosophy accepted and propagated by two sects of a Community once again came on the surface which not only caused any ripples and disturbed that atmosphere but unfortunately took a disproportionate turn and twist resulting in communal riots in some localities of this metropolis. After some hectic events there came the silver lining when peace and harmony was being restored, which however is likely to be once again disturbed and the old scar is once again likely to bleed according to the assessment of the State on account of filing of two private criminal prosecutions arising out of the same incident by two citizens. Against this backdrop the State though not directly in the arena as not having been impleaded in the said proceeding have moved this Court invoking inherent jurisdiction under section 482 of the Criminal Procedure Code for quashing of the said two complaints even though filed by private citizens. This in short is the foundation of this proceeding which even at this state has raised a substantial contest which takes within its fold several assorted questions some of which would even tend to touch the larger issues of public importance and the construction of some of the provisions procedural law including the maintainability, the propriety as also the legality of this proceeding. Even though the petition is posted for admission, still in view of the contested debate and advancing of arguments on several counts it is thought desirable to record a speaking order which to some extent is bound to be elaborate more so when both side have suggested for such a course so that the thrust of the controversy can well be appreciated.
3. Certain localities in this metropolis such as Daboo Street, Saifeejubillee Street, Dongri, Pydhonie, etc. are mainly inhabited by the people belonging to Sunni Muslims and Dawoodi Bohras the letter being a sub-sect of Shiyas. The third respondent No. 3 herein is the religious head of the said sub-sect of Dawoodi Bohras. He is aged about 77 years and is regarded as the 52nd Missionary in the line of Successors and has large followers. In the series the first event occurred on August 19, 1988 in the afternoon. The Sunni Muslims offering the Friday prayers which are considered as important in the Masjid which adjoins to Saifee mosque which was the centre for discourse by respondent No. 3 to his followers. Those sermons were delivered through loud-speakers which were directed and turned the mosque of Sunnis which disturbed their prayers. This entailed in some agitation when the third respondent was cautioned to tone down not to disturb. Though there was ostensible lull it was short lived because of the event that occurred on 22nd of August, 1988.
4. On that day the third respondent in the afternoon while giving discourse made some remarks suggesting a sense of extreme displeasure known as " Laanat" on the Caliphas of Sunni Muslims namely Hazarat Abu Maker Siddiqui, Hazarat Umar and Hazarat Usman Ghani and also on Hazarat Aiyasha. Not only that but the third respondent directed his followers who had assembled there to repeat and utter the said 'Laanat' three times which the followers did and this was also broadcast on the loud speakers in high volume. This again agitated the Sunni who had gathered in their respective mosques in that locality who took serious objection. N.C. complaint was filed by the second respondent who is Pesh Imam of the particular mosque at Dongri Police Station. The divergent philosophy between these two communities is that Sunnis revere the memory of the said three Capliphas as Companions of Prophet and also Hazarat Aiyasha the mother of the faithful whereas shiyas believe that prophet Mohammed had nominated in succession during his life time his son-in-law Hazarat Ali who was therefore the successor to the spiritual heritage of prophet Mohammed. In contrast the sunnis believe that after the death of Prophet Mohammed elections were held and in those elections Hazarat Abu Baker was elected as the successor of the Prophet who then appointed Hazarat Hussein who in turn appointed Hazarat Usman and after that the Sunnis believe that Hazarat Ali was the fourth Calipha. Shiyas do not accept the following of first three Caliphas. This is claimed through the petition to be the main cleavage of difference between the philosophy accepted and practised by these two sects which is practically age old on account of which clashes had taken place in the past also.
5. Continuing the thread of narration, the utterances of 22nd of August by third respondent hurt the religious feelings of Sunni Muslims and agitation commenced against Bohra Community. Several meetings were held to register the protest when emotions gave vent. One Shri Maulana Bukhari also convened one such meeting when Bohra Community was condemned. It is claimed that the public agitation demanded apology by the third respondent to Sunni Muslims for the said utterances and the time bound schedule was fixed on 1st of September, 1988. However, no such apology was tendered within the stipulated period by the third respondent and therefore the edge of the agitation became more sharp and some publications were made against Bohra Community. 2nd of September was again a Friday when Sunni Muslims had congregated for offering prayers at Attari Masjid while Dawoodi Bohras had assembled at Saifee Masjid to offer Namaz. The time co-incided between 1-00 p.m. and 2-00 p.m. The third respondent came to Saifee Masjid at about 1.40 p.m. where several of his followers were assembled while several persons from Sunni community had gathered at other nearby mosques while some had to stand even on the roads on account of paucity of space. Then occurred the event which perhaps exploded the situation. At about 1-45 P.M. the people from Bohra Community started observing 'Matam' by beating their chest loudly by saying "Ya Husssain Ya Hussain", at the instance of the third respondent's son when the father remained in the mosque which is alleged to have been deliberately done so as to demonstrate as a challenge and show of strength to the people of Sunni Community. This again disturbed their prayers. By that time on account of the potential danger due to agitation the police force was already moving in that locality. After the prayers were over there un-expectedly erupted violence when there was pelting of stones, throwing of brick-bats etc. coming from the direction of Attari Masjid towards Saifee Masjid which was retaliated by Bhora Community in the same coin. The police tried to control the situation but the mob had become violent. As a result of the said riot and violence many persons were injured as it took a larger proportion and covered larger area and larger property was damaged including some cars and two wheelers some of which were burnt, there was looting of shops and unfortunately two persons lost their life who were murdered in that violence. The police had to open fire to dispurse the crown. The Police Inspector then lodged the First information Report at Dongri Police Station on the basis of which offences of rioting, un-lawful assembly and the offences relating to human life including the one under section 302 of the Indian Penal Code were registered.
6. This disturbed state continued even on 3rd & 4th of September and there was repeat performance of violence though on a smaller scale. In between the leaders of both the communities realising the potential danger and prompted by desire to restore harmony tried to amicably settle the matter for which purpose several meetings for conciliation were held. It is said that Dr. Ishaq Jamkhanwalla, the Honourable Minister for Urban Development also took part in the said exercise and so also Maulana Bukhari who was practically representing the Sunni Muslims participated in that effort. It was agreed that the third respondent should issue a statement expressing his regret for utterances which he made on 22nd of August, 1988. A statement was issued on 3rd of August accordingly which was released to the press by the said Honourable Minister but some leaders from that community took objection as they were not satisfied. Thereupon another statement was issued on the same day on the Letter Head of respondent No. 3 to which also objection was taken mainly on the ground that it did not bear the signature of the third respondent. Ultimately as per the understanding between the parties the brother of the third respondent issued a statement on his Letter Head which he signed for and on behalf of respondent No. 3 and it was handed over to Shri Mulana Bukhari and respondent No. 2 on behalf of Sunni Muslims. That was not the end of the matter because some section from that community raised protest in that behalf also not accepting that statement which was actually not signed by respondent No. 3 but was on his behalf and which once again resulted in further violence on 4th of September. A fresh demand was made by that community from the third respondent to offer apology to Sunny Muslim Community and appear on television.
7. In order to effectively translate that desire in action and to restor peace and harmony between the two Communities Shri Sharad Pawar, the Honourable the Chief Minister of Maharashtra offered his good offices for the settlement and at his active instance a meeting of the leaders of the two Communities was held at his residence in which it was agreed that the statement, the draft of which was approved in that meeting should be signed by the third respondent on his Letter-Head in the presence of the Honourable the Chief Minister who in turn would announce on the television that the said letter was signed in his presence by the third respondent and the brother of the third respondent would read out the contents of the letter on the television. This did not remain merely on the paper but it was promptly executed when a statement to that effect was signed by the third respondent in the presence of the Honourable Chief Minister and it was telecast on Doordarshan on September 5, 1988. It is stated on behalf of the State that since then normally and peace was being restored in that area and none untoward incident occurred thereafter and the Urdu Press carried the news of settlement and practically every one accepted the said statement of the third respondent which was in larger interest maintaining peace and amity in the Muslim Community and the matter was thus ostensibly closed.
8. However on September 23, 1988 the first respondent who is the Sunni Muslim filed Criminal Case No. 53-/ Misc. of 1988 against the third respondent in the Court of the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay for the offence under sections 153, 296 and 98 of the Indian Penal Code which complaint relates to the incidents between 22nd of August 1988 and 5th of September, 1988 the gist of which is already indicated while narrating the facts. The learned Magistrate took cognizance of the said complaint on the same day and the verification was recorded on 27th of September when the learned Magistrate passed a speaking order issuing process against the third respondent for the said offences.
9. The second respondent did not lag behind and though he himself was cited as the witness in the complaint lodged by the first respondent which is first in point of time he also lodged another complaint in the same Court being Case No. 55 of 1988 for the same incident alleging the same offences against the third respondent. Cognizance of this complaint was also taken on 29th of September, 1988 and verification was recorded on 10th of October 1988 and thereafter adjourned the matter to 31st of October 1988. Both the matters are now adjourned to 12th of December, 1988.
10. It may be mentioned at this juncture itself that the first respondent under letter dated November 2, 1988 addressed to the Honourable Home Minister and the Honourable Minister for Law and Judiciary, Government of Maharashtra requested the State to grant sanction for prosecution of respondent No. 3 under section 153-A, 295-A and 505 of the Indian Penal Code which is the mandate and requirement under section 196 of the Code of Criminal Procedure. It is alleged that in addition thereto, three other complaints have been filed by some Sunni Muslims in the Magistrate's Court at Jamnagar-Gujarat State against the third respondent practically for the same incident and also practically for the same offences.
11. This part completes the catalogue of the chronology of events which by themselves are self explanatory. As stated at the threshold the State has approached this court under section 482 of the Code of Criminal Procedure for quashing of these two prosecutions initiated on private complaints on various counts.
12. The learned Advocate General canvassed multifold contentions. He placed reliance on the provisions of section 333 of the Criminal Procedure code (Old) qua the powers of the Advocate General for grant of Nolle Prosequl and asking for a discharge in a trial and in comparison with the same he placed reliance on the provisions of section 321 of the New Code vis-a-vis the powers of the Public Procedure regarding withdrawal from the prosecution of any person. On the general platform which has been used as the main plank he contended that though the prosecutions are launched at the instance of private parties and though normally the State may not enter the arena still some particular cases can be carved out in which the entry of the State may become imperative if it is prompted by the larger interest of the society and also impelled by its own obligation to maintain law and order and also to maintain harmony in the society and under that backdrop to insist on non continuation of such a private prosecution so that the general principle that criminal law can be initiated and rolled in motion by any one can be hedged in with certain qualification in the larger interest. In that field he also placed reliance on certain ratios. He further contended that though there is no specific provision under the New Code, the inherent powers under section 482 of the Code deserve to be construed harmoniously to achieve the same object so that the said provisions of section 482 can be styled as the amalgam of those under section 333 of the Old Code. On the factual aspect applying these principles the learned Advocate General contended that there are several in-built pointers which not only would justify the State's intervention for non continuance of the present prosecution but it would become the foremost necessity in the larger interest of the society and the Nation. He has assailed several features as reflected in the complaint some of which according to him are wholly irrelevant while some of which by themselves would tend to support his contention.
13. Shri K.M. Desai, the learned Counsel appearing on behalf of respondent No.3- original accused, obviously supported the learned Advocate General in all the contentions as also those raised on facts. In addition thereto, he submitted that even on the plain reading of the complaints and allegations therein no offences as sought to be carved out by the complainant have been even prime facie made out and therefore even on the factual aspect in addition to the legal aspect as canvassed on behalf of the State this is a fit case to quash the proceedings. He also submitted that he would reserve the right to move separately for quashing if so required for any technical purpose though according to him when the Court is seized of the matter the same can be done even in this proceeding if of course justified on merits.
14. The main argument on behalf of the other respondent was advanced by Shri Bhat who appears for respondent No. 1 who has filed the first complaint and the learned counsel for respondent No. 2 has adopted the same. All the contentions canvassed on behalf of the State are obviously countered. The main plank which is dominantly projected relates to the question of locus of the State if such proceeding initiated by private citizens and a further question was posed that a private citizen has every right to vindicate his grievances in any Court of law and it was stretched further by styling that such a right would include even to take vendetta through the medium of legal proceeding. On facts he submitted that a proper case has been made out for which cognizance has been taken by the learned Magistrate. He tried to paint the picture regarding the third respondent in a particular manner which is elaborately reflected in the complaint and submitted that if such prosecutions are allowed to be withdrawn at the intervention of the State then a feeling may be generated in the mind of the public that some preferential treatment is being given to some individuals who would be treated as being above law. According to him, the law and order problem is more imaginary and the contention of the State that even at the trial debate on all these sensitive issues would create further problems is hardly relevant and does not answer the issue. He also sought to place reliance on the rights accured to his client under the constitution under various Articles. In effect, he submitted that this proceeding as initiated by the State for quashing of the private complaints is not maintainable in law at all.
15. The factual structure of the allegation as reflected in complaint has been elaborately outlined at the threshold which makes its repetition unnecessary. Admittedly the prosecution is initiated on the basis of the police report or the charge-sheet. On this basis a formidable question posed and which is very much under debate is about the locus of the State in initiating the proceeding for quashing of the same and interconnected with the said issue relates to the powers and amplitude of the field available under section 482 of the Code of Criminal Procedure in the absence of any other specific provisions under the Code. Both these questions which are blended together cannot be considered in vacuum but for their consideration some aspects on facts while some incidental features are to be read in association thereof and then only the entire picture in that field would become clear which would entail in harmoniously answering the said question posed. To re-capitulate without dilating much over the factual aspect the crucial feature as reflected through the complaint suggests that the utterances of certain philosophy by the third respondent and in particular the manner in which it was displayed apparently injured the feelings of the other sect of that community which was accelerated by certain gesture within the sight of the other people which ultimately resulted in erupting communal riots. Thus the hurting of religious feelings on account of the utterances and certain gestures is the pivot of the entire episode.
16. The learned Advocate General adopted the main plank as to how the State comes in the picture in the larger interest of the society and to implement its inherent obligation to maintain peace, law and order and also harmony between the Communities. According to him, section 333 of the Old Code furnishes an under current to the provisions of section 482 of the Code which can be said to be amalgam of the said Old Provision. Section 333 of the Old Code relates to Nolle Prosequi vesting a right in the Advocate General to inform the court on behalf of the Government in a trial that the defendant therein would not be further prosecuted on the basis of which the defendant accused stands discharged. This discretion was vested in the Advocate General on behalf of the State so that all the props and cons could be considered when a conclusion is reached that for certain reasons which by themselves must be sound there was no propriety of continuing the prosecution. This valuable right though to be utilised sparingly contains a very important principle in which the State could put an end to the prosecution mis-stream before the verdict is announced if it has felt necessary. This provision no doubt does not find place in the New Code. Some parallel is found in the provisions contained in section 321 of the New Code where any public prosecutor or Assistant Public Prosecutor at any time before the verdict is announced can withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and this is to be done with the consent of the Court. No doubt it contains a qualification that it is to be done by the Public Prosecutor of the case. Therefore there is no express provision in the New code authorising the Public Prosecutor or the State to terminate a proceeding for a substaintial and sound reason when the State is not directly incharge of the prosecution. It is for that purpose that the learned Advocate General submitted that the inherent powers under section 482 of the New Code should be construed harmoniously to achieve the object without causing any dent to the scheme of the Code or without offending any of the express provisions contained in the other chapters of the Code. This provision corresponds to section 561-A of the Old Code. It prescribes the inherent powers of the High Court as :-
" Nothing in this Code shall be deemed to limit on affect the inherent power of the High Court to make such orders as may be necessary:
(1) to give effect to any order under this code, or, (2) to prevent abuse of the process of any Court, or, (3) otherwise to secure the ends of justice."
The third clause is obviously the residuary and spacious enough to envelop in its fold several situations. This provision has an under current of the requirement that the injustice is likely to be caused which should not be of a trivial character; that it should be clear and not doubtful and it arises in a situation where there exists no other provision for which the relief could be sought for. It is apparent that the restriction boldly refers that such powers cannot be invoked if the matter is covered by any specific provision of the Code and secondly if its exercise would be in consistent with any of the provisions of the Code. This provision really does not confer any power as such merely recognizes and possesses the inherent powers which are possessed by this Court. The parallel is found in the provisions of section 151 of the Code of Civil Procedure. The learned Advocate General therefore submitted that notwithstanding certain limitations as are prescribed under different ratios or judicial pronouncements this provision can be treated as amalgam of section 333 of the Old Code and even otherwise de hors thereof on its own reading the facts of the instant case would be of classic example to attract this provision so that the inherent powers can be justifiably invoked and exercised to secure the ends of justice and also to secure the larger issues of public importance which would be most harmonious for the society at large whereas non exercise of these powers would obviously entail in destroying this valuable object which would not be conducive for the public good. This line of reasoning which is in consonance with the provisions under the procedural law is quite impressive at least in this prima facie field.
17. Heavy reliance is placed by the learned Advocate General on some of the observations of the Supreme Court in Rajendra kumar Jain v. State, . The observations from various other ratios are also referred to in the said decision and many of such observations are collected there at least ex-facie appear to be quite relevant and significant in the context of the present controversy and in may opinion those have been justifiably relied upon by the learned Advocate General. Those really speaking are self explanatory which may not require any elaborate comments to reinforce their thrust and which significantly assumes much relevance in the context of the facts of the instant case also. The said case pertains to the prosecution of Shri George Fernandes and some others for alleged offences under section 121-A and 120-B of the Indian Penal Code and other sections under the Explosive Substances Act. An application was tendered by the Public Prosecutor under section 321 of the Code for permission to withdraw from the prosecution. The learned Magistrate incharge expressing an opinion that it was expedient to accord consent to withdraw from the prosecution granted his consent for the said withdrawal. This order was challenged in revision in the High Court on several counts which was dismissed against which Special Leave petition was filed in the Supreme Court. After considering all the facets of the controversy and on the facts of the said case the Supreme Court dismissed the appeal and endorsed the order of withdrawal of the prosecution though laying down guidelines as also a caution as to how the judgment is to be exercised by the Public Prosecutor incharge who should be prompted only by relevant considerations and not extraneous and irrelevant considerations and that the same should be bona fide and not mala fide and the courts also should apply their mind while according the consent. However, the larger canvass for justification of withdrawal in such cases is reflected in several observations in the said case itself as also in other cases referred to therein project a very formidable and relevant basis which could equally be applicable at least in the Prima facie field to the instant case as suggested by the learned Advocate General. It would therefore, not burden the record if some of the observations are quoted verbatim :-
".....The Court also appreciated that in this country the scheme of the administration of Criminal Justice places the prime responsibility of prosecuting serious offences on the executive authorities. The investigation, including collection of the requisite evidence and the prosecution for the offence with reference to such evidence were the functions of the executive and in that particular segment the power of the Magistrate was limited and intended only to prevent abuse.....That the wide and general powers conferred on the Public Prosecutor to withdraw from the prosecution have to be exercised by him, in furtherance of, rather than as a hindrance to the object of the law......
We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.
.....The sole consideration which shoud be guide the Public Prosecutor was the larger factor of the administration of justice....The Court also indicated some instance where withdrawal form prosecution might be resorted to independently of the merits of the case.
Of Course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. For instance, communal feeds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which might have given rise to criminal case, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instances also may be given.
The facts that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality of order in disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in Court, persuades the Executive pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised."
The Supreme Court then tabulated certain principles and guidelines in that field based on the precedents of that Court as to under what circumstances and for what considerations withdrawal can be justified. Some principles relate to the powers and functions of the Public Prosecutor while some relate to the duty of the court while according consent. Thus it is observed as:
"Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. The withdrawal from the prosecution is an executive function of the Public Prosecutor."
The Supreme Court then indicated the consideration for such withdrawal and observed as :-
"The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. the broad ends of public justice will certianly include apporpriate social, economic and, we add, political purposes sans Tammany Hall enterprises."
18. The Supreme Court also on taking resume of various precedents made its own observations amongst other things as :-
"In the past, we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, students unrest, etc.Whatever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restor peace, to free the atmosphere from the surcharge of violence to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of good will or for the purpose of not disturbing a claim which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched. In such matters who but the Government can and should decide, in the first instance, whether it should be beneful or beneficial to launch or continue prosecutions. If the Government decides that it would be in the public interest to withdraw from prosecutions, how is the government to about this task?"
19. The canvass in this field as stated is quite broad so as to accommodate various assorted relevant considerations which really speaking cast an obligation on the State either not to launch a prosecution or if already launched then not to continue with it in the larger interest of the public good. As indicated communal feud which has been amicably settled should not be allowed to re-erupt so also public peace, public justice and promotion of long lasting security in the locality to install harmony in a faction laid society and impel the executive as pro bono publico to move the Court which can be done even at the sacrifice of the pending cases for achieving wider benefit. Similarly discontinuation of a prosecution may be imperative to restore peace and to free the atmosphere from the surcharge of violence in cases touching communal riot, etc. whereas to observe inaction and persist in such prosecution where emotive issues are involved in the name of vindicating the law would really be counter productive. Non continuation also may be essential for creating an atmosphere of good will in the public interest. It is on account of these larger issues and broader considerations which are completely diversed from personal motive or individual interest would certainly fall within the realm of the State who would be enjoined under an obligation to preserve public peace and also to control law and order.
20. The learned Advocate General, therefore, submitted that if this is accepted as the formidable foundation for non continuation of a prosecution then in a case where predominantly the public interest at large is essentially involved and not the individual's right or even assuming otherwise in a case where the so-called individual's right assuming that it exists, that is practically merged in the larger stream of public interest then the State though not a party on the paper ipso facto gets involved in such proceeding and being impelled by justification in the larger interest of the people and the society can equally be justified in moving the court invoking the inherent powers under section 482 of the Code for quashing all these prosecutions even though those are initiated on the basis of private complaint. The learned Advocate General submitted that if the gist of the allegations in the complaint and some events that occurred which are beyond dispute are examined then it would become manifest that all these assorted features which justify dis-continuation of the prosecution would come on the forefront and the complainant's so- called individual right would recede in the background or at any rate it would be deemed to have been completely merged in the large interest of the entire people of the community and the society which in turn engulfs all those broader considerations of restoring public peace and avoidance of re-eruption of communal ill-feelings which in turn by necessary implication forced the State to enter the arena which ultimately would be a justification for the court to quash the proceeding. According to the learned Advocate General, therefore, this aspect of the matter answers the question of locus of the State which is harped upon by Shri Bhat, the learned Counsel for the respondent who no doubt submitted time and again that this is a private prosecution and the complainant has every right to ask for vindication of his right through the medium of court of law and the State cannot short circuit that right in such manner. According to him, there is no provision contained in the code which could vest a locus in the State asking for quashing of a private prosecution. The submissions advanced by the learned Advocate General and which are indicated herein above quite in details would really speaking at least in this prima facie field about the maintianability and propriety of such a proceeding would tend to answer the main contention raised on behalf of the respondents.
21. There are certain pointers as reflected in the complaint itself and the various events that occurred which are not debated on behalf of the complainant and which are relevant even in this prima facie field. The search would be to find out the real nature of the gravemen of the allegation and to fine doubt whether it really covers the larger interest or is completely restricted only to an individual personality and as to whether in really involves such broader issues in public interest necessitating restoration of peace and harmony between the communities which the State is more seriously concerned.
22. As stated at the threshold the third respondent who is the religious Head of Bohra Community which is the sub-sect of Shiya Muslims and which Community holds a divergent philosophy about the successor of the Prophet and which sect does not recognise the three Caliphas which is in contrast with the philosophy adopted by Sunni Muslims and the third respondent was canvassing that philosophy on the 19th as also 22nd of August and which according to the complainant also ultimately led to eruption of communal riots though it was accelerated by the gesture of the third respondent's son on 2nd of September by observing 'Matam' which according to the complainant was done as a challenge and show of strength hurled at the people of Shiya Community. There were meeting and counter meetings of the said community and it is thereafter that both prompted to restore peace and harmony in the larger interest endeavoured through their leaders to amicably settle the matter whereafter ultimately written apology was tendered by the third respondent in the presence of the Honourable the Chief Minister and which was telecast on the Doordarshan and which was apparently accepted by the people which according to the State enabled to restore peace and harmony because no untoward incident happened thereafter. Thus propagating a religious philosophy which was not acceptable to the other sect and more particularly the manner of its execution and display was the basis though it had some other shades which perhaps triggered the explosive situation. Nonetheless the foundation to some extent remains intact that it was on account of the divergent religious philosophy. The further fact is accepted in the complaint itself that the riots that had erupted obviously had the label communal riot which was the outcome of religious ill-feeling between the two communities on account of these utterances by the third respondent. These riots took disproportionate turn and caused immense harm even to both the communities apart from the public since there was enough damage of property and loss of human life also. Everyone then realised that this communal ill-feeling should be completely suppressed and public harmony should be restored which was most paramount in the interest of both the communities and that is why efforts were made first by the leaders of both the communities and thereafter stepped in the Honourable the Chief Minister as also the other Honourable Minister which ultimately entailed successful in subsiding the storm and restoring the calm. Thus on these very facts which are alleged and accepted by the complainant himself in the complaint the necessary foundation and the considerations which are well settled and which are indicated herein above were very much in existence and continued to be so even when the complaint was filed. May be that both the complainants who belongs to Sunni community were aggrieved because their religious feelings were hurt on account of those utterances accompanied by the mannerism and gestures in exhibiting the same but they are the part and parcel of the entire community of sunni Muslims and which community itself was agitated and the religious feeling of the said entire community was hurt and as such from that point of view the contention that the individual feelings of the complaints actually merged in the larger stream of the entire community and consequently therefore the restoration of peace and harmony in the larger stream of the entire community and consequently therefore the restoration of peace and harmony in the larger interest of both the communities become relevant and for which purpose the State which primarily shoulders that responsibility stepping in and persuading this Court to invoke the inherent jurisdiction as discontinuation of the prosecution is in broader interest of the society has much relevance even in this prima facie field. It cannot be over looked that there was no individual ill-will or motive not or the so- called utterances were directed against any individual from the other community. Similarly it was out and out a communal riot and not a dispute between two individuals. It was an outcome of conflict of divergent religious philosophy though as alleged there have been some over-tones and gestures and unjustified utterances and comments, still the basic foundation had the label of religious feeling. On the plain reading of the complaint itself the complainant cannot escape from this inference as submitted by the learned Advocate General.
23. In that field anothers feature becomes equally relevant even at this stage in the prima facie field. The offences alleged and the process issued by the learned Magistrate relates to those under sections 153, 296 and 298 of the Indian Penal Code. A short survey of these provisions in the context of the other relevant provisions would highlight the question under debate. Section 153 of the Indian Penal Code prescribes about giving provocation to cause riot and the requirement is that the provocation should be such which is the outcome of doing something which is illegal by itself and which in addition should be done malignantly or wantonaly and the further prescription is that it should be so done to any person with an intention or knowledge that the said provocation is likely to cause the offence of rioting to be committed. It further prescribes different sets of punishment in case where the riot does not take place and the one in which riot actually takes place in pursuance of said provocation. In the first instance as suggested by the learned Advocate General and which is further elaborated by Shri K.M. Desai, the learned Counsel for respondent No. 3, the entire prescription under this provision even prima facie is not spelt out even on the plain reading of the complaint. The alleged act according to them was not illegal by itself, that it was not done malignantly or wantonly and nor was the provocation with the intention or likelihood to cause rioting. Similarly is the contention regarding the offences under section 296 of the Indian Penal Code which deals with disturbing religious assembly prescribing that any one who voluntarily causes disturbance to any assembly which is lawfully engaged in the performance of religious worship or religious ceremonies would come under the clutches of that provision. According to the learned Counsel this by itself does not apply. These contention in the context of the facts as alleged and even assuming that those would be established at the trial, the requirement and prescription under those provisions make it quite arguable and even debatable about the formulation of those offences even ex facie. However, this aspect need not be considered much less concluded in this proceeding, since, as to whether the offence in fact as also in law is properly and prima facie formulated under these provisions would not be a germane consideration in this proceeding and the learned Advocate General therefore submitted and rightly so that even one proceeds on that footing in favour of the complainant that some offence might have been committed, though it is not admitted that any offence was committed by respondent No. 3, still it does not change the complexion of the main aspect. Section 298 of the Indian Penal Code relates to uttering of words with deliberate intention to wound religious feelings. However, the more germane point lies somewhere else. It is worth noting, as discussed earlier, that the most dominant foundation of the entire allegations on facts relates to wounding or hurting religious feelings of the community at large of Sunni Muslims and ultimately resulting in eruption of communal riots on account of this religious disharmony. This pivot is inescapable. If that be so, then the provisions of sections 153-A, 295-A and section 505 of the Indian Penal code would be really speaking more germane and more relevant to attract those allegations. In fact these are the main provisions which may cover the allegations and properly formulate the offences. To illustrate, section 153-A carves out different categories touching the question of promoting enmity between different groups on grounds of religion, race, etc. and doing acts which are prejudicial to the maintenance of harmony and those sub-clause expressly cover such a case where by word or gesture if anything was done to promote disharmony and feelings of enmity hatred or ill-will between religious groups or communities on the ground of religion, etc.or an act is done which is prejudicial to the maintenance of harmony between different religious groups or where such acts are done in any place of worship of in an assembly engaged in the performance of religious worship are expressly covered by this provision. Really speaking this provision would tend to cover the alleged facts and formulate the offences provided of course, that the facts as alleged are established. and the further prescription under that provision is also established. Similarly the provisions of section 295-A also become relevant in this context which prescribe that any one with deliberate and malicious intention of outraging the religious feelings of any class of citizens by word or gesture insults the religions of any class of citizens by word or gesture insults the religious beliefs of that class shall come under the clutches of that provision and it would formulate the said offence. Section 505 also has relevance in that context which has three clauses and prohibits any statement made with intent to promote or likelihood of promoting on the ground of religion, feeling of enmity, hatred and ill-will between different religious groups and come under that provision and if it is done in any place of worship or in an assembly engaged in the performance of religious worship gets an aggravated form. However, in that respect also apart from establishing the factual foundation the necessary requirements of these provisions are also to be satisfied, since more utterances by themselves in vacuum may not formulate any of these offences.
24. This discussion would indicate that these are really the most relevant provisions under which the offences may be formulated if proved on the facts as alleged by the complainant in the complaint itself as also if the requisite mens rea is established. These are the primary provisions whereas there is some substance in the contention raised on behalf of the State that the offences carved out in the complaint are not the germane ones. Realising this difficulty even the complainant has moved the concerned Honourable Minister to accord sanction by the State to prosecute the third respondent in addition for the offences under sections 153-A, 295-A and 505 of the Indian Penal Code. A letter in that behalf asking for the sanction has been addressed to the concerned Minister on behalf of the complainant through his learned Counsel on November 2, 1988. In fact the trend of the the recital in the said letter itself supports this view that it was out and out a communal riot arising out of those utterances tending to cause hatred between the two communities which ultimately erupted in communal riots. Thus hurting of feelings of the entire community and the larger interests of that community itself have been brought into play by the complainant through that letter which by necessary implications recedes in the background the individual right or individual vendetta.
A significant statement made in the said letter which reads as-
"I hardly need add that maintenance of law and order is one of the primary functions and duties of the State.
.....I however hope that the Government would act purely in the interest of communal harmony and public peace.
These features speak for themselves.
25. There is yet another tinge to this aspect. The provisions of section 196 of the Code of Criminal Procedure thus come into play and become relevant at this stage. It prescribes the necessity of sanction of the State or Central Government as the case may be a condition precedent for launching a prosecution for certain offences meaning thereby that the right of an individual citizen to initiate prosecution for those offences has been either withdrawn or atleast circumscribed not only by the State's intervention but by the State's concurrence in launching such a prosecution which in turn means that the State's discretion very much comes into play in respect of such offences which can decide as to whether such a prosecution should be allowed to be launched at all or not and one of the well settled considerations in that field may be of public interest. Though the State may not be impelled by any extraneous circumstance or political motive still with-holding of a sanction may be in a given case justified on the ground of public policy or the State may feel legitimate that launching of such a prosecution would be really " counter productive" and would cause more harm than to do remedy and would tend to completely erase the harmony which would disturb the stability of the society. Therefore, the consideration for withdrawal of prosecutions or for moving the Court for quashing of the proceeding may in a given case become relevant for not according sanction. It is then significant to note that the provisions of sections 153-A, 153-B, sub-sections (1) ,(2) and (3) of section 505 are clubbed in that category which are in addition to the other provisions including the offence of criminal conspiracy. This would therefore serve as a pointer that the State is very much concerned in respect of the offences as alleged under sections 153-A, 295-A and 505 of the Indian Penal Code which obviously relate to the outcome of disharmony between the two communities on account of hurting the religious feeling. This therefore again serves as a pointer that in such cases at least the matter does not rest to the choice of individual citizen and this is essentially because it does not restrict to the individual right of that person but as stated it merges in the larger stream of the entire community and the interest of the rival communities and in turn the interest of the society at large becomes more relevant making it imperative as an obligation for the State to restore harmony and not to encourage an act which may even remotely tend to make the scar once again bleed which scar by that time has undergone the process of healing. This would be the primary responsibility of the State as accepted by the Supreme Court in the case cited supra. It prescribes as one of the considerations behind this provision of section 196 though it would have some other considerations also with which however we are not concerned in this proceeding.
26. It would thus become relevant even in this prima facie field that by the scheme under the Code and and on the anvil of the settled principles and guidelines the State cannot be just an onlooker or a silent spectator even after realising that an act of prosecution and its continuation may completely break the harmony which has restored and would promote to re-erupt the storm after the calm has been achieved and it would be obviously unproductive to the public interest. It is from that point of view that it has been indicated that it is really that offences namely 153-A, 295-A and 505 of the Indian Penal Code which would properly cover the allegations as reflected in the complaint whereas the other features are really speaking secondary and if that be so then the State's concern in the proceeding is very much likely to come into play. The complainant's move for asking for sanction to prosecute for these offences itself reinforces this inferences and the recitals in the letter which are indicated herein above again justify the concern of the State in the entire proceeding. If the complainant has posed a question in that letter that the maintenance of law and order is the primary function and duty of the State for which purpose sanction is asked for, it really speaking cannot be restricted to those offences only for which sanction is asked for because the facts formulating those offences are very much of the same set of facts which formulate the offences in respect whereof the processes has been issued and from that point of view also the concern of the State at least at this prima facie stage regarding the maintainability of the proceeding cannot be wiped out. It cannot be overlooked that under the scheme even the offences punishable under Chapter 7 of the Indian Penal Code are covered under the provisions of section 196 of the Code. This scheme therefore further tend to justify the involvement of the State in such sensitive matters which have repercussions against the harmony of the society at large the maintenance of which would be the primary obligation of the State which is even acceptable to the complainant. Expanding this argument it can be observed though incidentally that the Indian Penal Code itself indicates different chapter many of which are restricted to individual conflicts and individual disputes and individual grievances whereas in contrast others are grouped to suggest that those very much travel beyond the pale of individual disputes but are against the interest of the harmony of the society or against the national interest and therefore vis-a-vis the State's obligation and concern in any of such proceedings in these two different categories of the offences cannot be overlooked or under-mined.
27. The prescription for the offences as carved out in the complaint and the relevance of other provisions under the Indian Penal Code formulating the offences on the facts of the instant case has already been discussed. The third respondent was propagating his school of thought and also his religious philosophy and not necessarily the same containing any provocation or instigation. It was also not directed against any individual as such or even likely to cause any impact on the individual but the likelihood was more on the other community as a whole which was opposed to that philosophy and from that point of view a distinction will have to be kept alive between in individual grievances and the grievances of the community so also the question about the consequence of any one honestly canvassing his philosophy on a particular subject will have to be seriously considered. It is also worth noting that the provisions of section 153 and 153-A are placed in Chapter 8 which relate to the offences against the public tranquility which inherently and basically would touch the main question of public tranquility and not individual indignation. Similarly section 295-A and 298 as also section 296 are placed in Chapter 15 which relate to the offences relating to the religion while the offence under section 505 is placed in Chapter 22 and it relates to statements pertaining to public mischief or promoting enmity or ill-will between the classes. Therefore, the charges that are levelled and for which process has been issued really fall to those chapters were the public cause very much comes in the picture whereas those provisions by themselves may not effectively attract the facts as alleged and at any rate the concern of the State in that behalf cannot be completely wiped out. It is also contended that all the said offences placed under the particular Chapters in the Code relating to public tranquility and to religion have a specific objective and legislative intent one of which is to secure communal harmony and as such the continuance of the prosecutions far form achieving this objective would frustrate it and promote disharmony between two factions. This contention of the State would also require serious consideration.
28. There is yet another quite compelling circumstance which would very much tend to tilt the scales and being in favour of the contention of the State at least in the prima facie field. It is asserted in the petition on behalf of the State that the incident of 22nd of August, 1988 the details of which need not be repeated when certain utterances were made by the third respondent, the Sunni Muslims started agitating against the Dawoodi Bohra Community and several meetings were held in various places in which highly emotional speeches were delivered. It is further stated that on behalf of that community a meeting was convened at Saboo Siddiqui Polytechnic by Shri Mulana Ziauddin Bukhari where highly provocative speeches were delivered and according to him provocative language was used against Bohra Community. It then mentions further as---
"In that meeting, the Sunni Muslims demanded that respondent No.3 should tender apology to Sunni Muslims for utterances of 'Laanat' on the above referred persons by 1-9-1988..........By 1-9-1988 the respondent No. 3 did not tender any apology. Sunni Muslims parted some pamphlets using objectionable language against Bohras Head Priest."
29. The petition then continues to narrate as to how the thought of apology was carried forward and as to how it culminated ultimately in the third respondent giving an apology. It is very much reflected in paragraph 6 onwards. Thus it is indicated that when the violence break up in the mean time meetings were held between the leaders of Sunni Muslim community and Dawoodi Bohra Community " to amicably settle the matter." Dr. Ishaq Jamkhanwalla, the Honourable Minister for Urban Development had also offered his good offices to bring about the settlement between the two communities who were then torn apart by the religious enimosity. In the presence of Dr. Ishaq Jamkhanawalla " a meeting was held between the representatives of the respondent No. 2 and Maulana Ziauddin Bukhari representing Sunni Muslim community." and it was agreed that the respondent No. 3 would issue a statement expressing regret for his utterances on 22-8-1988. Accordingly on 3rd of September, 1988 a statement of the respondent No. 3 was released to the Press by Dr. Jamkhanawalla, but after the release of that statement certain objections were raised by the leaders of Sunni Muslim Community that they were not satisfied about the same whereupon another statement was issued on the letter-head of respondent No. 3 on the same day. An objection was also taken by some members of Sunni Muslim Community that it was not acceptable because the second statement did not bear the signature of the respondent No. 3. It is further stated that "Ultimately pursuant to further understanding apparently arrived at between leaders of two factions," the brother of respondent No. 3 issued a statement on his letter-head which he signed for and on behalf of respondent No. 3 and "that statement was handed over to Sunni Muslim leaders Maulana Ziauddin Bukhari and respondent No. 2." It further indicates that thereafter also some protests were raised by some section of that community who refused to accept the statement which was issued on behalf of respondent No. 3. A demand was then raised by Sunni Muslim Community that " the respondent No. 3 must appear on T.V. and offer his apology to the Sunni Muslim Community."
30. The petition then goes further to narrate as to how the intervention of the Chief Minister Shri Sharad Pawar came in the picture. It states that " to bring about peace and amicable settlement between the two communities, Shri Sharad Pawar, the Honourable the Chief Minister for Maharashtra, also intervened in the matter and offered his good offices for settlement., At the instance of the Chief Minister, a meeting was convened between the leaders of the Sunni Muslim Community and Dawoodi Bohra Community at his residence at 'Varsha'. On behalf of Sunni Muslim Community, Maulana Ziauddin Bukhari was present." It then further mentions that in that meeting it was "agreed" that the agreed statement will be signed by the respondent No. 3 on his letter head in the presence of the Chief Minister who would announce on T.V. that the said letter was signed in his presence by respondent No. 3 and his brother would read out the contents of the letter on T.V. and pursuant to the Agreement arrived at in that meeting, a statement was signed in the presence of the Hon'ble Chief Minister by the respondent No. 3 and the same was telecast on Doordarshan on 5-9-1988.
31. The petition then makes it very clear in no unmistakable terms that after the said publication as per that agreement complete peace and normally returned to the disturbed areas and the people started mixing with each other freely and normal social and commercial relationship was resumed between the Sunni Muslims and Dawoodi Bohra Community. It may be mentioned here that the disturbed areas are congested localities in Bombay and principally inhabited by Sunni Muslims and Dawoodi Bohra community. It was therefore imperative to bring back normally in the area to prevent further loss and damage to the lives and properties of the people. No untoward incident took place since 5-9-1988. The Urdu press also carried the news of the settlement and accepted the statements issued by the respondent No. 3. The large sections of Sunni Muslims also have accepted the statement made by the respondent No. 3 in the larger interest of maintaining peace and amity in the Muslim Community and the matter appeared to be closed.
32. These recitals speak for themselves requiring no comments indicating the event that occurred when repeated efforts were made to amicably settle the matter and ultimately after several rounds of deliberations and over-coming several protests that a statement was telecast on Doordarshan and its authenticity became beyond doubt since it was signed in the presence of the Honourable the Chief Minister and which according to the State was accepted by the Shiya Muslims and it was evidenced by the further event that there was complete calm and peace in the locality as also harmony between the two communities and no untoward incident occurred thereafter which according to the State is a pointer in favour of the conclusion that the said agreement and statement was accepted by the Shiya Muslim Community and their leaders had participated in the deliberations and were satisfied with the outcome.
33. This finds substantial support in the First information lodged by the Police Inspector Shri Jaswant Singh Sodhi attached to Dongri Police Station on 2nd of September 1988 when riots erupted. The relevant portion in the complaint reads as :-
"Prior to this there were also meetings held by Sunni Community in the various places at Nagpada and Dongri area, in which the provocative languages are used against the Bohra Community The Sunni Muslim had also asked this Bohra Community, whatever language used by Dr. Sayedna Burhanuddin, he should apologize and they have given the time of deadline as 1st September, 1988. However, he failed to do so and as such there was tension in the locality."
34. The matter however does not rest there because there are strong pointers in the complaint itself the recitals of which cannot be disowned by the complainant. The complaint contains different topic under different heads such as historical background, the utterances and one topic is specially devoted with the label as 'apology' and other as "inferences from the apology". At one stage in paragraph 27 it is mentioned as :-
"On August 28, 1988, a mass meeting took place to protest against the accused for his offending and hurting the religious feelings of the Sunni Muslims. This was called by Maulana Ziauddin Bukhari."
It then mentions the names of the speakers in that meeting and suggests that :-
"Number of meetings were held to protest against the accused between 22nd August, 1988 to 5th September, 1988 in the Municipal 'B' and 'C' Wards area and in some towns in Maharashtra." Then there is a positive statement in paragraph 29 which reads as :-
"There was a public clamour for an apology from the accused. The accused was asked to apologise before 1st September, 1988 (Thursday). The accused did not tender an apology."
Under the head of Apology in paragraphs 35 and 36 the following recitals are incorporated which speak for themselves and therefore can be quoted in the words of the complainant himself as :-
"On 2nd September, 1988, Urdu Times Eveninger, published a copy of the apology purported to have been given by the accused and the same apology was also published by Inquilab and the Urdu Times on 3rd September, 1988. When it was found by Maulana Bukhari, Maulana Kashmiri and others that the signature on the letter of apology was not genuine and did not match the usual signature of the accused, Maulana Buhkari issued a press statement that the apology was unacceptable."
Para 36 is a continuation thereof which reads as :-
"Therefore, negotiations continued between Maulana Bukhari and the accused. The Chief Minister Mr. Sharad Pawar was brought into play a conciliatory role. On 4th September, 1988, they met at Mr. Sharad Pawar's residence. Thereafter, there was a meeting with the accused and Mr. Sharad Pawar. The accused returned to his residence leaving behind most of the people who accompanied him to Mr. Pawar's residence. Further discussions ensued. On 4th September, 1988, Mr. Sharad Pawar went to the residence of the accused along with Maulana Bukhari where a letter of apology (as per Exhibit 'G') was written, signed and handed over. Further the Doordarshan was kept in readiness to record these events as per terms, it was telecast on the Maharashtra Network. Exhibit 'G' also bears the signature of Mr. sharad Pawar as signed before him by the accused.
35. The verification of the complainant also accepts this position when it is specifically mentioned that the Sunnis thereafter held the protest meetings and ---It was suggested that the accused should tender his apology to the Sunni Jamat." It then mentions that for some days thereafter even though there was suggestion that the third respondent should tender apology it was not given by him. Then it recites that on 4th of September, 1988 under the pressure of Chief Minister Shri Sharad Pawar the accused tendered his apology and it suggests that he tendered his apology in the presence of Shri Sharad Pawar and "the apology in question was broadcast." The complainant then refers to one statement of apology which according to him was bogus. He referred to another paper cutting which contains the said apology given by third respondent which according to the complainant did bear the signature of the third respondent and it was signed by him in the presence of the Chief Minister Shri Sharad Pawar. The State itself has produced the English translation of the statement issued by respondent No. 3 and the statement referred to by the complainant in his complaint appears to be identical and the complainant himself suggests that it bears the signature of the third respondent. It is at Exh. 'C' and it reads as :-
"SYEDNA'S STATEMENT Bombay, September 3, Dr. Syedna Mohammed Burhanuddin Saheb, Head of the Dawoodi Bohra Community has issued the following statement :-
"BISMILLAH- AL- RAHEMAN- AL- RAHIM.," In the name of Allah, the most Beneficent and the most Merciful.
Praise be to Allah, peace be upon Mohammed Saiyed al-Mursalin, Khatam al-Nabiyeen and his chosen progeny and companions.
Keeping in mind the prestige of Islam, the Unity and brotherhood of Millah and its traditions for which I and my predecessors have striven hard, because of some words said by me on 22nd August 1988, the religious sentiments of Sunni Muslims were hurt, for which I wish to be excused.
It has always been my endeavours that inspite of the differences in the beliefs, mutual unity and love must prevail in Ummat because all of us are of firm belief that we are united on the Kalimah 'LA- ILAHA- ILALLAH.' Yesterday an unpleasant situation occurred in this city and because of this strong bonds of Millah became weakened. It is in the mutual interest of all of us that we forget this anguish and embrace each other with sentiments of love and brotherhood.
I pray to Allah that he may guide us on the right path and increase the prestige of Islam."
36. The composite reading of the petition, the Police Inspector's complaint, the complaints and verification of respondent No. 2 and the purported statement of respondent No. 3 in question harmoniously flow out certain unescapable inferences which are capable of deducing equally inescapable conclusions. It is manifestly clear that after the event of those utterances protests was levelled by Sunni Muslim Community and their leaders delivered speeches in different meetings in protest of those utterances. It is clear that Shri Maulana Ziauddin Bukhari is not only the leader of the said Sunni Muslim Community but he was very much participating in the entire episode practically of the said community. He had himself approached the police, he himself convened various meetings, he himself delivered speeches in those meetings in the protest of the utterances and he was also party to the demand for an apology from the third respondent. He then participated in moulding the events to get the statement from the third respondent. It is manifestly clear that respondent No. 2 who is Pesh Imam of a particular Masjid also participated at every stage right from the process of demanding apology to ultimate moulding of the apology from respondent No. 3 He is cited as witness in 1st respondent's complaint and is himself the complainant in the second complaint and moreover was not acting only in his individual capacity but very much in representative capacity. The first two statements were not acceptable to him and therefore he and the community and the other leaders rejected those statements on the grounds which are indicated herein above such as they doubted the signature of the third respondent while the second statement did not bear his signature at all. In the last round of deliberations and negotiations he himself participated and there are strong indications that significantly the second respondent also himself actively participated in all these events and negotiations and was also himself demanding an apology from the third respondent. In the meeting with the Honourable the Chief Minister the agreed statement was arrived at between the representatives of the two communities to which the second respondent had associated in every respect and thereafter the leaders of that community who represented that community demanded a certain course that the said statement should be signed in the presence of the Chief Minister and not only that but it should be telecast on Doordarshan and the Chief Minister should proclaim in that telecast that the statement was signed by the third respondent in his presence and it was to be read over by the brother of the third respondent. Therefore, right from the beginning a thought was generated in the mind of the Sunni Muslim community in general to ask for an apology of the third respondent. It is true that they prescribed the deadline of 1st of September for giving an apology and they perhaps waited for that event. However, for some reason the apology was not tendered within the stipulated period. However, it appears quite clear that the chapter thereafter was not closed inasmuch as negotiations on the same lines continued and demand for apology also continued even after the stipulated period was over and which ultimately culminated in the respondent giving apology and telecasting it on Doordarshan as per the demands of Sunni Muslim community. Every thing that was demanded was done. Thus the demand was initiated from the Sunni Muslim community as a whole and it was complied with by the third respondent in letter as also in spirit. The genuinemation thereof was not doubted by that community because of the proclamation by the Chief Minister and every one from that community was obviously satisfied. Those negotiations were carried on by the representatives of the community and final shape was given to the agreed statement by the said representatives themselves and ultimately the said statement was accepted by the entire community. The involvement of the second respondent in this entire episode relating to the apology is very much on the surface and it can hardly be doubted. It is true that in the complaint some inferences are sought to be drawn out of the said apology such as it amounts to the so-called confession by the third respondent and it also indicates that the delay in giving the statement and the earlier two statements indicated that the accused may not be repentant. However, all these inferences are difficult to be accepted even in this limited field, since the most crucial under-current in that behalf has been either missed, overlooked or purposely not referred to in the complaint and the same relates to the most formidable feature which has already been discussed about the community demanding the apology and the third respondent ultimately conceding to that demand and giving the apology and lastly the community as a whole accepting that apology because it was the outcome of the negotiations participated by their own leaders and representatives and it was exactly as per their suggestions. The further contention that thereafter there has been harmony between these two communities and there also has been social as also commercial activities between the communities and no untoward incident occurred thereafter and normally was restored, is again a strong pointer in favour of the inevitable inference and conclusion that the apology was demanded by the community and was accepted by the community as a whole and the said community has closed the chapter thereafter. A question, therefore, can be harmoniously posed as in the first instance what would have happened if the apology was in fact tendered by the third respondent on the scheduled day i.e. 1st of September, 1988 and the answer would have been that the chapter would have been closed there only. However, not tendering the apology on the scheduled day does not create any dent to the situation because of the further events inasmuch as even thereafter that community itself kept the said issue very much alive and open and continued to demand apology and participated in the negotiations for getting that apology. There was enough application of mind as reflected in the fact that two earlier statements were not accepted by that community whereas the third statement was as per the agreement and the agreed course of intervention of the Honourable the Chief Minister and telecasting it on the Doordarshan with certain proclamation by the Chief Minister and that was also as per the agreed formula which was accepted by the said community. This apology was given on the 3rd of September, 1988, that is, after the scheduled period was over and still it was demanded and accepted by the community and all the agreed suggestions were translated into section and therefore the further question which can harmoniously be posed is about the effect and impact of this apology tendered and accepted by the community. For both these questions the inevitable answer would be that it had entailed into the resultant consequence of closing down the entire chapter by the Sunni Muslim Community itself which they also felt was in the larger interest of both the communities since they felt the necessity to restore harmony and peace and very much anxious to see that the scar is completely healed and is not provoked to bleed once again. Thus prevention of such a provocation is implicit in that course adopted and accepted by that community and they realised the tangible results of that section as thereafter the normalcy restored in the locality and harmony prevailed in the two communities and there was no untoward incident thereafter. The plausibility of these contentions advanced on behalf of the State cannot be lightly brushed aside even at this stage.
37. The State, therefore, contends with sufficient justification even in this prima facie filed that in view of this unmistakable situation accepted by the Sunni Muslim Community itself of which the so-called two respondents are part and parcel, will it be permissible for them to re-open the issue under this situation and thereby offering provocation for the potential danger, recurrance and revival of the nightmare and the unhappy memories. As stated the community as a whole unmistakably indicated its decision to close down the chapter and prevent any provocative action in the future in respect of the same incident. That was practically the mandate of the community and therefore, the learned Advocate General posed a question whether the first and second respondents who practically want to go back should be permitted to undergo that exercise, which has also a potential danger implicit therein, of once again creating an explosive situation by reviving the memories. It also cannot be overlooked that the said apology was tendered to the entire community and was conveyed to every one on Doordarshan even as per the said demand of the representatives and if so it obviously was given to respondent No. 1 and 2 also as they are in that community and therefore the impact of that apology would be common to those two respondents also just as to the community. They cannot stand separate and at distance from the community.
38. This chapter in my opinion spells out an impressive pointer in favour of the State's submission that apart from all other aspects this is a peculiar case on account of which feature it is more than necessary that there is full justification for the State to approach this Court under section 482 of the Code of Criminal Procedure for quashing of the proceedings and it would equally be necessary for this Court to exercise the inherent powers in the instant case to achieve the ends of justice and which concept in the instant case makes it imperative to continue to maintain the harmony and peace in the communities and to take every step and care not to make the said scar bleed again and it is in that context that the State's role as having been involved in the process of maintenance of law and order would come into play in making that request to this Court and the State's obligation and the resultant consequence to be in the larger interest of the society as a whole would be the paramount consideration for the Court to exercise the inherent powers. This contention raised on behalf of the State, which is quite relevant as also impressive at least in this prima facie field, would therefore require a serious and anxious consideration and assessment.
39. This aspect also unfolds through it another shade of the matter. If there was such a settlement and when it was at the insistence of the community and in the interest of the entire community and which was also accepted by the community then whether an individual who himself is a part and parcel of that main stream of the community can be allowed to throw over-board the said settlement which would be against the interest of of the community itself and thereby taken upon himself the risk of once again exploding the calm and peace that has been restored in the locality. In answering this question it cannot be overlooked that the utterances which have given rise to this proceeding were not directed against any individual from that community nor the incident related to any personal feud or private dispute but it was on the larger canvass where the entire community is placed saying that the feelings of the entire community have been hurt and therefore it is the community's interest as a whole that should over-ride the interest of an individual though really speaking by virtue of the settlement and its acceptance that individual's interest also completely merges in the larger interest of the society. This is one angle where the complainant is concerned. In the second angle comes in the picture the State who as stated earlier can contend that since the interest of the community has been safeguarded by the said settlement it may not allow the same to be destroyed once again by an individual of the same community more so since its repercussions would affect the interest of the State regarding the obligations of restoring peace and harmony between the two communities and maintenance of law and order. Thus from this point of view also the individual's opinion may recede in the background. On the third point of the triangle comes respondent No. 3, the original accused who would contend that since that was the insistence of the entire community he tendered an apology with a clear understanding between the parties that the chapter would be closed so that no complaint would be lodged against him in that behalf and yet the complainant lodged the complaint which would be against that agreement in letter and spirit and which apology was also motivated by the larger interest of the society to restore harmony and peace which should not be allowed to be over-shadowed and cracked down by the restricted interest of an individual. The common factor in all these three points relates to an admitted position that the community as a whole was aggrieved and hurt by the utterance and there was no individual dispute between the accused and the complainant and the community as a whole has already patched up the exposed. Incidentally in that context it is submitted on behalf of respondent No. 3 that even though he may not filed any different petition for quashing of the proceeding, still when the Court is seized of the matter and when the inherent powers are being invoked for quashing of the proceeding the same can be done legitimately even in this proceeding initiated by the State since the object to be achieved is common being quashing of the proceeding. The relevance the impact and the apparently justified thrust of all these contentions cannot be lightly brushed aside and in fact at least in the prima facie field their plausibility cannot be ignored and at any rate all these features would justify in the minimum a further inquiry in the matter. Even at the cost of repetition it can be mentioned that the observations of the Supreme Court in the case cited supra become prominently relevant namely :----
"For instance, communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the brader connotation may perhaps warrant withdrawal from the prosecution."
40. In Gokulchand Dwarkadas Korarka v. The King a question arose about the validly of sanction for launching prosecution under Clause 23 of the order in question relating to the Cotton Cloth and Yarn (Control) because thereunder such a sanction was prerequisite condition for prosecuting the concerned person. The requirement of that Clause was examined such as whether the facts constitute the offence charged should be shown on the fact of the sanction or not when it was observed that---
".....The Government have an absolute discretion to grant or with hold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example that on political or economic grounds they regard a prosecution as inexpedient".
This, therefore, suggests according to the learned Advocate General that existence of a good case is not the Governing factor where as consent or sanction can be withheld inspite of existence of such a case on other grounds which are deemed to be expedient. It further lays down a very sound and well reasoned principle that the ends of justice are always wider than the ends of law. This philosophy in the context of the present facts would obviously become relevant and would play an important role in the entire proceeding.
41. In Souriet v. Union of Post Office Workers and others, 1977, 3 All England Law Reports, 70, certain observations were made which are relied upon by the learned Advocate General. The case pertained to refusal to grant consent by the Attorney General to relator action. The Attorney General refused his consent to the application on the observations as-
"Having considered all the circumstances included the public interest relating to the application for my consent to bring relator proceedings.... I have come to the conclusion that in relation to this application I should not give my consent."
"Having considered all the circumstances included the public interest relating to the application for my consent to bring relator proceedings.... I have come to the conclusion that in relation to this application I should not give my consent."
Thus the public interest played a paramount role in moulding that opinion. In the course of the judgment while approving the decision of the Attorney General certain observations are made as-
"There is no greater nonsense talked about the Attorney General's duty, said Sir John Simon in 1925, then the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers call" a case". It is not true that no one who has held that office supposes that it is. However clear it appears to be that an offence has been committed, it is as Sir Hartley Shawoross then Attorney-General said in 1951, the Attorny-General's duty in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevent facts, including, for instance, the effect which the prosecution, successful as the case may be, would have upon morale and order."
It was further observed as--
"It seems to me entirely appropriate that responsibility for deciding whether to initiate preventive proceedings for injunction or declaration in the public interest should be vestedin a public officer, and for historical reasons that Officer is the Attorney General. It is well established that he is not bound to prosecute in every case where there is sufficient evidence, but that when a question of public policy may be involved the Attorney-General has the duty of deciding whether prosecution would be in the public interest. .....
Enforcement of the criminal law is of course a very important public interest, but it is not the only one, and may not always be the predominant one. There may be even more important reasons of public policy why such procedure should not be taken at a particular moment, and it must be proper for the Attorney General to have regard to them. ....."
These observations and ratios equally emphasis the consideration of public policy, public interest and public morale for non launching the prosecution by not granting sanction and equally by analogy for non continuation of the prosecution. It is, therefore, submitted by the learned Advocate General that the merit of the case is not always the governing consideration for continuation or withdrawal of the prosecution but several other considerations which may touch the larger interest of the public may dominate in that field. The further shade of this ratio is quite relevant inasmuch as therein as long as there was the question of private grievance as the postal packet was not delivered to the concerned person, no question could arise of asking for consent of the learned Attorney General. However, as soon as it was sought to be transformed into a dispute of public injury, when it was intended to initiate a proceeding for injunction against the Association itself, the consent of Attorney General was found necessary. This distinction is quite relevant under this controversy also.
42. This discussion really speaking very much touches and actually answers at least in the prima facie field the main contention raised by Shri Bhat, the learned Counsel for the respondent, about the locus of the State in initiating a proceeding for quashing of the same arising out of a private complaint and equally the jurisdiction, propriety and justification for the Court to entertain and even to grant such a relief under section 482 of the Code of Criminal Procedure. According to him, the complainant has a right under the procedural law and also under the Constitution to launch a private complaint which right cannot be short-circuited much less wiped out by any one, not even by the intervention of the State. It was thus submitted that private citizen cannot be allowed to be gagged by initiation of such proceeding by the State. He also relied on the fundamental rights under Articles 14, 19, 21 and 25 of the Constitution of India in support of his plea. According to Shri Bhat, not allowing to prosecute respondent No. 3 would offend Article 14 of equality before law because that would mean that the respondent No. 3 is above law or would not give equal protection of law to the complainant by frustrating his right of prosecuting the accused. As regards Article 19, Shri Bhat submits that it does not directly apply to the facts of the case. As regards Article 21 it is contended that the personal right of the complainant to prosecute the accused is violated by denying that liberty to the complainant which should be deemed to be his personal liberty which should be protected. As regards Article 25, the learned Counsel submits that this right to freedom of religion is also violated because the complainant's right to religion is not protected from the attack on the same by the accused. The learned Advocate General on the contrary contended that all these Articles really speaking would be out of place in the context of the controversy since the main issue lies some where else inasmuch as even assuming that the complainant has all such rights accrued to him which should be preserved, still those are not being violated by asking for non continuation of the prosecution since the fundamental consideration of such plea for non continuation lies in an entirely different field which is already discussed. He also clarified that none of these Articles would apply even individually to the facts of the instant case. He further submitted that barring Article 32 a right vesting in a citizen to take any proceeding in any Court of law is not a fundamental right at all but it is always a statutory right and consequently there is no question of violating any fundamental right. He also submitted that the concept of religion does not mean fighting a case and therefore protection of religion is entirely different from contesting a case in a Court of law. The concept and the meaning of religion has been high lighted in S.P. Mittal v. Union of India and others, which has been relied upon by the learned Advocate General where different facts of that different facts of that meaning are extensively considered the details of which however may not be elaborated at this stage. Shri Bhat, the learned Counsel for the respondent, sought to place reliance on the ratio in Smt. Meneka Gandhi v. Union of India and another, . and in particular paragraph 54 when it is indicated that personal liberty as the inter-relation between Articles 19 and 21 and it is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the personaliberties and according to the learned Counsel, therefore, all the varieties of such personal rights are to be considered in a composite form. He also placed reliance on the ratio in Abdul Jalil and others v. State of U.P. and others, , in support of his contention that if doing of a thing is permissible in law then the consideration of maintenance of public order and peace cannot be allowed to over-come that right. Therein the directions were given by the Court of the shifting of two graves in question which act was criticised as interference with the religious practice and which would have affected the maintenance of the public order though it was indicated that the rights under Articles 25 and 26 relating to religious matters are not absolute. It is difficult to extract any analogy from the judgment cited on behalf of the respondent to the facts of the instant case as against which cases as cited on behalf of the State would have some relevance at least in the prima facie field and therefore their thrust and impact will have to be more seriously and elaborately considered at the later stage.
43. Shri Bhat, the learned Counsel, proceeded to submit that sections 296 and 298 of the Indian Penal Code relate to hurting of religious feelings and in fact the complaint's religious feelings have been hurt on account of the utterances which cast objectionable remarks against the younger wife of the Prophet and the complainant being firm believer in Islam and having highest respect for the Prophet obviously cannot encourage passing of such remarks. Such religious feelings according to him are always personal feelings and hurting of personal feelings of the complainant must entail in allowing him to seek redress through the Court of law and the complainant cannot be stified in that process. He also submitted that the authenticity of respondent No. 3's signature on the apology in question is very much in doubt and the further contention is that the respondent No. 3 had observed a very shrewd silence in not making any statement either way about the said apology and his signature thereon. He also contended that the said apology suggests that the Honourable the Chief Minister signed the same on 5th of September whereas the apology is alleged to have been given and signed by the 3rd respondent on 3rd of September and that when it was telecast on Doordarshan respondent No. 3 himself was not present. The learned Advocate General submitted that the petition of the State proceeds on that footing about the authenticity of that apology as also the signature when it is mentioned as "Pursuant to the agreement arrived at in that meeting a statement is signed in the presence of the Honourable the Chief Minister by respondent No. 3 and the same was telecast on Doordarshan on 5-9-1988". He also cited several recitals in the complaint itself which is firmly reflectly in various portions of the complaint and in particular paragraphs 35 and 36 under the head Apology.' As indicated earlier that the apology given on the 2nd and 3rd was not acceptable to the people from that community and also respondent No. 2 who had doubted the genuineness of the signature and it is thereafter that the negotiations continued between Maulana Bukhari and the accused and conciliation efforts were made by the Chief Minister when they met on the 4th of September whereafter the Chief Minister went to the house of the accused along with Maulana Bukahari where a letter of apology as per Exh. 'G' was written, signed and handed over and it further recites that the Doordarshan was kept in readiness to record these events as per the terms and it was telecast on the Maharashtra Network. It also recites that Exh. 'G' which is the said document of apology " also bears the signature of Mr. Sharad Pawar as signed before him by the accused." These recitals speaks for themselves and furthermore some inferences are sought to be drawn which themselves proceed on the footing that the said apology was treated as genuine one bearing the signature of the third respondent because whenever there was any doubt about the authenticity the apology was rejected by the people to that community. However, in addition thereto, as stated in the verification of the complainant, first respondent, he has stated that one apology was shown to him which was found to be bogus and that was placed on record at Exh. X-1. He then mentions in verification as-
"I am shown another paper cutting containing the written apology given by the accused. It bears his signature.
It was signed by him in presence of our Chief Minister Shri Sharad Pawar. On this apology as a witness appears the signature of Shri Pawar. It is put in and marked Exh. X-2."
Under these circumstances the learned Advocate General cannot be said to be unjustified in proceeding on that footing about the genuineness of the apology and the signature of the third respondent and authenticity being supplied since it was signed in the presence of the Chief Minister and this appears to have been also accepted by the complainant in his complaint. Shri Bhat, the learned Counsel, submitted that this court should ask respondent No. 3 about the said apology and his signature thereon. However, in the first instance it is not necessary in view of all these features and the recitals in the complaint itself and secondly I am afraid it may not be permissible to ask an accused person any such question which may solicit any admission. Any way, proceeding on the footing of that apology as being genuine is apparent.
44. Shri Bhat, the learned Counsel for the respondent, endeavoured to rely on certain observations and recommendations as incorporatted in the report of the Commission Enquiry made into communal disturbance at Bhiwanti, Jalgaon and Mahad by Hon'ble Justice Madon, acting as the Commissioner, in support of his plea that the recommendations therein suggested that the persons responsible for communal riots should be prosecuted and the observations further suggest in the opinion that it was not proper to protract the issue of grant of sanction under sections 153-A and 295-A of the Indian Penal Code so that such delay in granting sanction may not have the deterrent effect or the confidence in law and order may be shaken and it was further opined that it was an error of the judgment on the part of the State not to have given sanction to prosecute the persons concerned. However, this can hardly be served as an analogy in the instant case since there is much divergence in the acts and the texture of two episodes. Obviously, therefore, this cannot serve as an analogy. Shri Bhat no doubt submitted in that behalf that the persons who have committed riot, arson and looting, etc. are to be prosecuted whereas the person who could be held to be responsible for all these consequences on account of his utterances and conduct should not face the trial which according to the learned Counsel sounds very odd. However, as stated the issue lies entirely on different track as submitted by the learned Advocate General according to whom the person who actually committed riots and arson, etc. cannot stand on the same footing as that of the respondent No. 3 at least on the question of non continuation of the prosecution and secondly many times the participants in such arson, etc. may include some antisocial elements also and those are the acts which constitute serious offences which obviously cannot be short circuited by withdrawing the prosecutions and taking this course continuation of prosecution against the persons who ultimately had indulged in those illegal acts of violence in that respect cannot ipso facto be a pointer for continuation of the prosecution against respondent No. 3. This contention of the learned Advocate General also deserves serious consideration. Shri Bhat endeavoured to submit further that his client the complainant has every right "to seek vengeance thought the medium of Court" and for that purpose he tried to place reliance on the observations of Salmond Jurisprudence. However, the learned Advocate General countered this contention on the broad basis that the theory of vengeance or concept of vendetta is totally unknown to jurisprudence in any civilised country as according to him such a feeling should not be allowed to be even fomented because ultimately the Court is not a venue nor can it be a catalysing agent to achieve such an effect. The thrust of this contention of the learned Advocate General is obviously prima facie quite plausible. A concept of personal vengeance is really unknown to the stem of administration of justice.
45. The learned Advocate General then placed for consideration an allied tinge through his arguments. According to him, a distinction which is very much real will always have to be made between the public wrong or injury and private wrong or injury. In respect of wrong the concerned person who has been wronged obviously may not be interfered with his right to redress the said wrong through the Court of law. However, if it is a case of out and out public wrong then of course the State pre-dominantly comes in the picture. In the third category if the said two types of wrongs are intermingled and closely blended then also it becomes the State's concern. Therefore, according to him in respect of any public injury it becomes the State's paramount duty and obligation to stopping in track such a public injury. He submits that the State in such situation and for that matter at all times and in such circumstances has to discharge the role of custodian of public law. Therefore, in such cases where the public peace is at stake and consequently discharging of the State's obligation is in jeopardy then it is the Statcinency irrespective of the fact whether on paper the State is a party or not because impliedly the State is always concerned with any such proceeding or situation and not making the State as a formal party would hardly make any difference. It is this theory of public wrong versus private wrong or injury that is very much canvassed on behalf on the State by the learned Advocate General in this field. On the factual aspect he submits that this theory would obviously come on the forefront and get attracted immediately since the overall picture of the entire situation leaves no manner of doubt that it is the case of public wrong or public injury right from the beginning even de hors of an apology and certainly after the event of the apology and consequently who assumes, though erroneously, about any private injury having been caused to him can be stopped on the track and even in the mid-stream from proceeding further if the proceeding is already launched though according to him this is not a case of any private wrong at all. As discussed earlier, even otherwise the complaint being very much the component of the entire community he in the first instance may not be said to have suffered any private injury at the hands of the respondent No. 3 and in any case after the event in question when every thing was patched up his so-called grievance which merged in the larger stream can get faded awar by reason of the closer of the Chapter by the community as such so contends the learned Advocate General, though he maintains that this is not a case where even initially any private wrong was caused. It is from that point of view that according to him the State's concern becomes very firm and bold and thereby the locus of the State to move the Court for quashing of the proceeding would legitimately come into effect. As stated, Shri Bhat has submitted that the complainant having his own right to practise a particular faith in religion, his individual feelings are also hurt on account of the act of the third respondent and therefore he is entitled to stand out quite away from the community even if the community thinks otherwise and therefore it continues to be a case of private wrong. In my opinion at least in the prima facie field the submission made by the learned Advocate General on behalf of the State is more appealing though it can be better adjudicated upon after a further probe. In any way, in the prima facie field the said contention on behalf of the State cannot be lightly ignored.
46. Reference to certain observations in two decisions in this field may not be out of place. In State of West Bengal v. S. N. Basak, , a question arose as to whether the Court may be justified either under the revisional jurisdiction or under the inherent powers to interfere with the investigation into cognizable offences by the police which are in progress and it was answered in the negative though on the facts of the said case. However, it is indicated therein itself that it was so because the Court would hardly take cognizance as no charge was framed nor any charge-sheet was filed and therefore every thing was at the stage of investigation. However, it was strongly indicated that the Court can start functioning may be under inherent powers to interfere and pass appropriate orders not accepting the validity of the process of framing the charging on filing of the charge-sheet. It is in that context observed as-
"... The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course subject to the right of the intervene in an appropriate case when moved under section 491 of Criminal Procedure Code to give directions in the nature of habeas corpus."
The further observations in that context are however more relevant to the controversy such as-
" In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then."
Then observation were extracted and relied upon from a decision of the Privy Council in Emperor v. Khwaja Nazir Ahmed , the limited purpose for which it can be utilised is to see that the Court's functions start when the charge is preferred in the Court though in certain cases the trend of other decisions indicate that in a fit case it can be done even during the course of investigation. However, at least in the minimum the Court gets jurisdiction when the matter is lodged in the Court of law Extending the same to the facts of this case in cannot be overlooked that the case has already been lodged in the Court and not only that but the learned Magistrate has taken cognizance thereof and has actually issued process. Consequently this Court's jurisdiction to deal with the matter in such a case can hardly be doubted.
47. In Thakur Ram and others v. The State of Bihar, , though the question arose in different context still some observations are quite relevant to the controversy in the present case. There the trial protracted for quite some time before the learned Magistrate when it had made substantial progress on evidence and it is at a belated statge that the prosecution moved the learned Magistrate to commit or to refer the case to the Court of Session for framing of charge under certain provisions of the Indian Penal Code which according to the prosecution were triable by the Court of Session. The learned Magistrate declined. In revision the Sessions Court held otherwise and directed the committal of the case to the Court of Session for being tried there. The High Court confirmed the order of Sessions Court on the ground that some of the offences were triable by the Sessions Court or at least with serious enough which should be made triable by the Session Court. The provisions of section 437 of the Criminal Procedure Code were under debate. It may be observed that the revision application in the Session Court was filed not by the prosecution but by the informant in one of the cases. The Supreme Court ultimately quashed the said order of commitment and directed the trial to continue before the learned Magistrate. However, though incidentally some relevant observantions are made which are much relevant in the context of the present controversy as-
" ...The criminal law is not to be used as an instrument of wracking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book."
As stated the jurisdiction of the Court was sought to be invoked by a private party though that party claimed to be the aggrieved party and it is in that context that these observations are made which very significantly suggest and lay down the capacity of the State "as the custodian of the social interest of the community at large" and it also indicates that a private party also aggrieved it may be, should not be encouraged to wreck private vengeance when the social interests of the community are very much likely to affect. The relevance of these observations in my opinion would have its own impact in the wake of the controversy and would tend to support the submissions advanced on behalf of the State in that behalf.
48. The learned Advocate General however addressed another view point on a different platform though in the direction of achieving same object. According to him, even de hors of the question of locus of the State to file this petition, still in the second category when the Court comes in the picture then some further considerations would become relevant. In that field he submits that in a situation of this type for invoking the inherent powers under section 482 for quashing of the proceeding really speaking the more germane question would be that the Court through some process or some agency should be apprised of the situation and once the Court is seized of the matter, whatever may be the source through which the proceeding is initiate then it would case an obligation on the Court to consider the pros and cons of that situation and if satisfied on merits then the Court should not hesitate to quash the proceeding and the so-called challenge to the qualification of the source which initiated the proceeding can hardly serve as a disqualification for passing such an order by the Court. The two tracks in that behalf therefore will have to be kept in water tight compartments and the more paramount consideration of achieving the ends of justice would govern the fate of the proceeding irrespective of procedural technicality about the capacity of the agency which has initiated such a proceeding. In other words the Court being in possession of the matter it is the Court's satisfaction about the merits which would completely over-shadow all other aspects including the challenge to the capacity and locus of the petitioner. In other words even assuming that in the strict sense the petitioner in a given case may not have complete locus as such, still that would not debar the Court from passing adequate order in order to achieve the ends of justice. He further submitted that this Court in a given case can even suo motu intervene and pass the necessary orders if the situation demands. The Courts can be made aware of that situation by any citizen even though technically he may not be a party to that proceeding. According to him, the State really speaking stands on a better and strong footing having a locus, but even irrespective thereof the State can bring the situation to the notice of the Court and once that function is over then the obligation is transferred to the court to pass the appropriate orders taking cognizance of that situation. Thus upto the stage of apprising the Court in such matters it can be any one and it can certainly be the State, when the limited function of bringing it to the notice of the Court is over and nothing more is done by such a source whereafter much is required to be done by the Court to do justice to him. Thus the half way path can be travelled by any one for the purpose of communicating the grievance to the Court whereafter the Court has to take its cognizance whereas in the other variety of cases even such agency need not be on the track at all even for the purpose of communicating to the Court when the Court itself on its own and suo motu can take cognizance of the situation which is certainly and permissible course at least for this Court. This is accepted under the procedural law and this is very much evidenced through the provisions of revisional jurisdiction under section 401 as also under the inherent powers under section 482 of the Code of Criminal Procedure. The learned Advocate General also contended that wide jurisdiction is given to this Court at least for taking cognizance by this discretion to discharge certain obligations and in some cases even to exercise powers conferred in the Court of appeal and one of the contingencies expressly incorporated in that provision is that the cognizance can be taken by this Court of any proceeding "Which otherwise comes to its knowledge" which itself connotes the vast expansion of the jurisdiction vested in this Court for the purpose of taking notice or cognizance of the proceeding and which impliedly embraces the situation where there is no initiation of any such proceeding before this Court by any agency whatsoever. If that be so, then a situation when the proceeding is initiated by the State would be on a better footings, so contends the learned Advocate General. His further submission takes stock of the provisions of section 482 of the Code and according to him, there is wider amplitude and much expanded field available under these provisions in comparison to the demarcated field available under the revisional jurisdiction under section 401 of the Code. In other words, it is contended that if cognizance can be taken of a proceeding even suo motu or through any source of knowledge by this Court then the expended jurisdiction is all the more available to this Court to take cognizance of the situation equally through any source or even without a source under section 482 of the code. It is in that context that the ratio in Souriet v. Union of Post Office Workers cited supra would assume some relevance because as discussed earlier in that case so long as there was the question would arise about getting the consent of the Advocate General for launching any proceeding. However, the moment the proceeding is required to be intended to be lodged in respect of public wrong when an injunction was sought for against soliciting or procuring any person wilfully to delay any postal package in the course of transmission, the role of the Attorney General came into effect who in that case refused to grant consent. This tends to highlight that the two different tracks, one of a private wrong and the other of a public wrong or injury and in the latter the State's concern comes into force. The thrust of all these contentions even in this prima facie field is quite impressive and is apparently supported by various provisions under the procedural law and the legislative intent in that behalf.
49. In Nadir Khan v. The State (Delhi administration), , the question related to the power of the High Court to enhance sentence in the revisional jurisdiction in which the structure of the said revisional jurisdiction under section 401 was considered and the observations of the Supreme Court are relevant in the context of this proceeding and the submissions made on behalf of the State. The Supreme Court observed as :-
"It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduct appliction at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice keeps a constant vigil and wherever it finds that justice has sufferred, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate Court prompt remedical action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases for food adulteration, reacts to public concern over the problem and may act sou motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders........
Section 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court......."
Thus it is accepted in this suggestion that the High Court is not required to act in that jurisdiction only through the conduct application at the instance of the aggrieved party. Shri Bhat, the learned Counsel, in that behalf however submitted that though this is permissible it is not an unqualified permissibility since the High Court can proceed in that behalf even suo motu whenever it finds that "justice has suffered" and according to the learned Counsel, therefore, not only justice has not suffered but on the contrary it would suffer by the intervention of this Court if the proceedings in which event these observations would not apply. It also covers the situation where there is abuse of process of law. However, it cannot be overlooked that these are not the only instances but there are varieties of contigencies in which the High Court may be justified to intervene and pass necessary orders. Therefore, the permissibility of the proceeding not being initiated through an aggrieved party is one thing and it is really the foundation of the argument on behalf of the State whereas after taking cognizance the propriety of passing necessary orders would depend on facts and circumstances of each case though both cannot be confused for each other. At present the question canvassed is as to whether it is open for this Court to take notice of the situation through a proceeding initiated by the State who is not a party to that proceedings in the trial Court whereas it is thereafter that the question would be posed for answering it where on the facts of the case the relief sought for deserves to be granted or not. On the first count, therefore, the State's contention is very much supported by this ratio.
50. The circuit becomes complete by referring to the provisions of Code of Criminal Procedure when the learned Advocate General submits that when there is such permissibility in a revisional jurisdiction then the field of permissibility is very much expanded under the inherent powers under section 482 of the Code. For that purpose reliance is placed on the decision on the Supreme Court in Municipal Corporation of Delhi v. Ramkishan Rohatagi and other, 1983 Criminal Law Journal, 159 and some of the observations therein are quite relevant namely :-
" ...Section 482 of the present code had a different parameter and was a provision independent of section 397(2). This Court further held that while section 397(2) applied to the exercise of revisional powers of the High Court, section 482 regulated the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the Court.....
This provision confers a separate and independent power on the High Court alone to pass order ex-debito justitia in cases where grave and substantial injustice has been done or where the process of the Code has been seriously abused. It is not merely a revisional power meant to be exercised against the order passed by subordinate courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts. Thus, the scope ambit and range of section 561-A (Which is now section 482) is quite different from the powers conferred by the present Code under the provision of section 397. It may be that in some cases there may be over-lapping but such cases would be few and far between."
51. These two decisions read in the composite manner would therefore at least prima facie tend to lend enough support to the line of reasoning adopted by the leaned Advocate General on behalf of the State regarding the wider field available for this Court to get jurisdiction under the inherent powers. The totality of this discussion would further gain support to the arguments advanced on behalf of the State at least in the Prima facie field that in the first instance the State may be vested with the locus to move the Court under certain circumstances when the State's imperative obligation comes into play when the situation is likely to adversely effect the social and public order as also when it may be compelling in the larger interest of the community and the society as such. Even otherwise de hors of the State's capacity to move the Court it is permissible in certain cases for the Court to take serious note and cognizance of the situation if brought to the notice through any source whatsoever and in certain cases even suo motu without there being any formal application by any agency whatsoever. The merits of the case by itself may not be the governing factor if it can be legitimately over-shadowed by other considerations which may justify on the facts and circumstances of that case for discontinuation of such a proceeding, even in a case where even prima facie there might be formulation of some offence and which may also take within its fold the allied principle that in such cases a private individual even assuming that he is aggrieved may not necessary be allowed to wreck private vengenance if it is likely to entail into serious consequences affecting the harmony of the society and provided further that the larger interest of the community of which such an individual is also the component part are likely to be affected adversely with a potential danger of creating further complications which may not be conducive to the harmony of the society and with which the State is very much concerned. The element of conflict between public wrong and private wrong which is already discussed also assumes relevance in the wake of this controversy as relied upon on behalf of the State. The thrust of all these contentions raised on behalf of the State would obviously require a serious thought and as such at least in the minimum it would require a further deeper examination and assessment on its merits which in turn makes a stage for further detailed probe inevitable.
52. This discussion obviously unfolds through itself the amplitude of the inherent powers of the Court under section 482 of the Code and second about the necessity and propriety as also justification for interfering in this proceeding by directing an order of quashing of the said two complaints as prayed for on behalf of the State. As regards the latter question it is really covered by the entire discussion so far made though in the context of other features and which discussion squarely applies to this question also and as such repetition is unnecessary. In affect the facts and circumstances of the instant case are such that at least in the prima facie field it cannot be said that there would be no occasion or justification for this Court to invoke the jurisdiction under these inherent powers and to quash the proceeding on the larger issue and in the larger interest of the said two communities and the society as a whole. All the fatal relating to the State's concern and the necessity felt by every one for patching up the differences to restore peace and harmony within the two communities would be relevant in equal force touching this question, about the propriety of the Court to direct quashing of the proceedings. The differences having been settled on account of the apology by the third respondent, which was accepted by the community after getting satisfied about the genuineness and authencity thereof and also after getting satisfied about the genuine desire and intention behind the same and also after being further satisfied that it was necessary to close the chapter after the said apology would tend to make the position further firm for the State to the argue that this would be pre-dominantly a fit case to justify exercise the said inherent powers. In formulating justification at least in the prima facie field to urge that this Court should exercise the said jurisdiction for quashing of the proceedings. All these questions as also the facts and circumstances are harmoniously blended together and the whole texture spells out in this prima facie field at least for the State to advance that argument which obviously cannot be lightly brushed aside. The larger and broader interest of the society as a whole would always be paramount and if those are to be achieved carrying with them the harmony between the two communities and peace in the society which would avoid the eruption of the said night-mare and violence which had occurred in the past coupled with the further relevant feature indicating the existence of public wrong would normally be relevant features for the Court to persuade itself to exercise the inherent powers in favour of discontinuing the said proceedings especially when it may be convincingly realised at the proper stage that to act otherwise and continue the proceeding would be very much destructive to the harmony and peace and would also destroy the cherised desire and expectations of the society as a whole because any civilised society is always peace loving and would not encourage any violence as such. It is in this context that the contention advanced on behalf of the State that this would be pre-dominantly a fit case to exercise discretion and lean in favour of quashing of the proceedings requires serious examination and further detailed probe which obviously can be done at a later stage. The plausibility of this contention and a reasonable probability of this view being ultimately acceptable collectively co-exist at least in the prima facie field.
53. As indicated earlier the Court would obviously get jurisdiction especially after any case is lodged in a Court and in the instant case not only a complaint has been filed but the cognizance has been taken by the learned Magistrate. If there is abuse of any process of the Court then that itself may justify exercise of inherent powers under section 482 of the Code. The Court ultimately will have to seriously consider whether on the facts of the instant case and especially after the matter was completely settled by the community at large whether it would amount to abuse the process of the Court and if so whether its prevention would be necessary. However, the Court would be more concerned with the residuary clause under section 482 which justified exercise of inherent powers by this Court which are necessary "otherwise to secure the ends of justice". The concept of ends of justice has a peculiar mould in the context of the facts and circumstances of this case and as discussed in details the view point of the State that preserving the harmony between the two communities and preventing the recurrence of an explosive situation to destroy the requisite harmony of the society would formulate a situation which would fall within this mould and attract this residuary clause formulating the concept of securing he ends of justice and when Court is specifically conveyed of this situation then it really is the obligation on the Court, according to the State, to step in and exercise the inherent powers and to pass appropriate orders for quashing of the proceedings to secure the ends of justice. Shri Bhat, however, tried to submit that securing of ends of justice can be done only by giving justice to the complainant and which in turn can be done only by allowing the private prosecutions to continue. The State obviously countered this contention and as indicated the learned Advocate General submitted quite strenuously that this would be counter productive to the larger interest of the society which very much desirous to have peace, harmony in the communities especially when the matter has been settle. The contention raised by the learned Advocate General therefore would require an anxious thought to be given by this Court at the time of final adjudicating in this proceeding especially because the Court having seized of the matter through whatever agency it may be and having conveyed about the reality of the situation with implied potentials the Court would be under the obligation to seriously assess the situation and pass appropriate orders, which in the minimum at least necessitate a further probe in details which can be done at the appropriate stage. This contention raised on behalf of the State cannot be brushed aside at this stage.
54. It is apparent that there is no express provision under the Code either for withdrawal of such prosecutions or even for their discontinuation not at the instance of the complainant. Further granting of the relief sought for in quashing and thereby discontinuing the proceedings would not be inconsistent with any provisions under the Code. The Court has a corresponding obligation when brought to its notice and if of course the merits of the matter so demand to prevent abuse of process of the Court and at any rate to pass appropriate orders to secure ends of justice either or both of which can be achieved by quashing of the proceeding in an appropriate case. The permissibility of exercising inherent powers and its propriety as also legality is well prescribed under the inherent powers of this Court under section 482 of the Code which powers are expressly saved and preserved thereunder. It is relevant to note that even in private prosecution the State is required to be made a party at the appellate stage after conclusion of proceeding in the trial Court. The principle behind this is also material. As discussed, provisions of section 333 of the Old Code relating to Nolle Prosequi could invest full power authority in the Advocate General to step in the capacity of pro bono publico and invite termination of the proceeding before the verdict is declared. This was itself on sound principle of public policy and the State really being the custodian of law so that a frivolous or vexations prosecution or a prosecution acting against the larger interest of public and the society or one otherwise desirable to be discontinued or not being maintainable for any reason can be stopped midway on the track and the accused could be discharged. This provision is deleted from the Code Provisions of section 321 of the New Code may have some trace of this principle, but it obviously does not cover the entire field in view of the obvious restrictions and limitations prescribed therein as is apparent from its terminology and consequently it does not replace the said provisions under the old Code, notwithstanding that it may containing the consideration of public policy and public interest and obviously therefore it cannot cover a situation as is available in the instant case and in fact it cannot cover several such contingencies which can be envisaged and which may really justify discontinuation and quashing of proceeding for sound reasons in the larger interest of the society and the State. Absence of provisions of section 333 of the Old Code and non-applicability of the provisions of section 321 of the New Code thus becomes apparent. Consequently all the requirements of section 482 of the Code are thus very much in existence. Those are not covered by any express provision under the Code nor are they inconsistent with any other provision under the code. Deleting Old section 333 does not mean that the sound principle behind the same was to be completely obliterated. The forms are not material but the consideration of object of withdrawal or discontinuation of prosecution behind all these provisions is more germane. From that point of view it can be legitimately said that the provisions of section 482 of the Code are in a sense the "amalgam" of the provision and principles of section 333 of the old Code.
55. The applicability of the inherent powers, therefore, at least in the prima facie field would be quite rational. It is no doubt true that it must be exercised within the accepted and well-settled framework and mould and it is equally true that those should be used sparingly and not as a matter of course, though in a proper case Court may not hesitate to exercise those powers and quash the proceeding. Thus a proper balance is to be struck based on facts of each case. Learned Counsel for both sides wanted to place reliance on several rations in that field to supplement their propositions either way. There can hardly be any hope for a debate in respect of those ratios, though however, those are all always based on the facts and circumstances of each case, though the common pattern and under current flowing smoothly through all those decisions is based on well-settled principles available in that respect However, it is really the application of such principles to the facts and circumstances of a given case that entails in a more strenuous exercise requiring proper and marshalling. It is, therefore, not necessary to refer to all those decisions which time and again re-enunciate the well-settled and well-accepted guide lines regarding the amplitude as also the corresponding restrictions and limitations in exercise of such powers which are already discussed. It would, however, not be out of harmony to refer to some pertinent and eloquent observation of the Supreme Court in that field while dealing with the powers under section 482 of the Criminal Procedure Code in State of Karnataka v. L. Muniswamy, .
" In the exercise of this whole-some power, the High Court is entitled to quash a proceeding if is comes to the conclusion that allowing the proceeding to continue would be an abuse of process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High court's inherent powers, both in civil and criminal matters is designed to achieve a salutory public purpose which is that a Court proceeding ought not to be permitted to degeneration into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution the very nature of the material on which the structure of the prosecution rests of the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations in that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its objects it would be impossible to do justice between the State and its objects it would be impossible to appreciate the width and contours of that salient jurisdiction."
56. It may be clarified as submitted by the learned Advocate General that the thrust of the complaint's grievance does not concentrate not it is based wholly on the alleged utterances by the third respondent by themselves or even by the religious philosophy and faith as adopted, practised and proclaimed by him, because the said divergence in the two schools of thought and faith has been in existence since several years and according to the learned Advocate General even the pronouncement of 'Laanat' and observance of 'Matam' has been in vague and practise for years together and that both communities have been free to embrace their own faith, view and religious philosophy, otherwise to prevent respondent No. 3 from embracing and practising that particular faith would really offend the provisions of Article 25 of the Constitution, but according to him and as reflected in the complaint itself the main objection at least to some extent relates to the so called objectionable manner in which the discourses have been displayed through loudspeakers in loud tone fixed in particular direction which disturbed the people of the other community in their prayer which they were offering at that time in the nearabout mosques and the said manner which hurt the feelings of the other community in the context of the utterances triggered and exploded the situation though the import of the utterances is not completely wiped out even as reflected in the complaint. Shri Baht, the learned Counsel for respondent, substantially accepted this position. Shri K.M. Desai however submitted that nothing could have been so intended by respondent No. 3 much less the anticipation of likelihood of any explosive situation more so there was no special occasion or reason a that time. All this, however, is incidental since it does not in any way change the texture of the foundation.
57. The amalgam of this discussion of all the relevant shades does tend to spell out enough justification for the State at least in the prima facie field to apprehend that the continuation of the prosecutions would carry with it the compelling potential of destroying the peace and harmony that has been already restored after so much turmoil as also it may crack the equilibrium and stability in the society as a whole which by itself would be counter-productive. Essentially the episode relates to public wrong or public injury. The State would have further impressive and formidable justification in support of their plea derived from the admitted position that the dispute has been fully and finally settled which was so done even by the complainant's community of their own volition and earnest desire whereas it was not imposed on them and was thereby freely and fully accepted by that community and was further fully implemented and honoured as well since it is evidenced in the fact that there has been no untoward incident thereafter and complete harmony has been restored among the two communities and peace in the locality. This settlement is fully reflected in and clearly flows out of the statement styled as the apology of respondent No. 3 which has been accepted by the said community as a whole which they also felt to be in their best interest with the effect of restoring and preserving cordiality, peace and harmony between the two communities. This settlement therefore unmistakably very much changes the whole texture and complexion of the controversy. The learned Counsel for respondent No. 3 on instructions fairly and candidly submitted that the third respondent has also earnest desire to preserve peace and harmony and he would very much endeavour to preserve the same by honouring and acting as per the letter and spirit of the said recitals in that statement. The said recitals are quite significant and not empty. A genuine regret is expressed for the said utterances. The author makes it clear that inspite of the differences in the beliefs, mutual unity and love must prevail more so since both communities are united by a common bond. It is also indicated that every thing was unintended. The author further appealed to every one to forget the anguish arising out of the said incident and that they all shall embrace each other with sentiments of love and brotherhood. This in fact was the agreed statement and it was then accepted in every sense. The recitals are quite eloquent to dispel any doubt in that field and the earnest desire behind the said appeal cannot be doubted and the thrust of the said appeal is very much likely to promote peace and harmony with a feeling of brotherhood between the two communities. It is further submitted on behalf of the State that there would be some unavoidable features coming on the forefront to the knowledge of the public if the prosecutions are continued. Thus for instance the complainant himself asserts in the complaint that the third respondent as the spiritual head and leader of Dawoodi Bohra Community wields tremendous charisma for his followers who are large in number scattered every where who are nearly one million in the country. Hence there is likelihood of some turmoil and tension in the two communities when the cases are fixed for hearing before the trial Court. This would lead to a situation of a repetitive anxiety for the State regarding maintenance of public order. Further the root cause of the riots and disturbances have been the religious differences of opinion between the two sects and it would be inevitable that during the course of the trial divergent views would be put forth by the rival witnesses which would once again get published generating further tension among the two communities with potential of grave apprehension regarding the breach of public order. Court proceeding in such matters may really become hot-hed of religious controversies leading to bitterness between the two factions as the Court may not be proper platform for such an exercise though otherwise by the learned Magistrate. Section 153 of the Indian Penal Code relates to public tranquility with the main objection to maintain public peace. Similarly sections 296 and 298 of the Indian Penal Code are enacted in Chapter relating to offences to religion. The primary object of all these provisions is to ensure communal harmony. By continuing the proceedings, far from achieving this objective it would promote disharmony between the two factions. These are some of the illustrations given by the learned Advocate General though the list is not exhaustive. All this gets a firm stamp of finality in view of the settlement between the parties and the State would be obviously anxious to see that the effectiveness of the said settlement is not diluted or obliterated or otherwise it is very much likely to affect public tranquility and law and order. The contention sought to be raised by Shri K.M. Desai, learned Counsel on behalf of respondent No. 3 while adding to these grounds of apprehension that the Court proceeding may attract presence of several people in the Court room which may create difficulty in controlling the crowd and the proceeding is wholly irrelevant since obviously a proceeding cannot be quashed on that score or otherwise it would give almost a blanket mandate in all proceedings where several people may attend the Court to hear the proceeding. Learned Advocate General in usual fairness did not endorse the said view and rightly so and submitted that controlling the crowd in the Court would be the State's responsibility which would not be shirked. This inner circle therefore is non-existent whereas the outer and larger circle contain many shades as contended by the learned Advocate General in support of the plea of the consequences and justified apprehensions on broader and larger issues.
58. In turn the Court will also have to consider seriously and anxiously its obligation to step in and assess the situation to find out if it demands the interference even by quashing the proceedings in the larger interest of the society as also to serve the ends of justice. All the considerations and factors discussed in relation to State's obligation and their locus under the situation as submitted by the learned Advocate General squarely apply to this field also when the Court enters the picture, The settlement in question affirms and prompts that obligation more firmly. Every only would be eager to cherish and even revive the pleasant memories with nostalgia while no one would like even to think much less to revive memories of any horrifying or even an unpleasant experience. Every society would love to promote peace and harmony and not violence and hatred and would like to heal the scar but not to foment its agonies. Both the communities are well cultured and educated and their earnest desire is firmly reflected throught the course of conduct in setting the dispute. The Court cannot be oblivious of the assorted elements of public peace and harmony law and order, public interest and welfare of the people at large as also the interest of justice in the social context if of course, available within the framework and structure of law. This remains to be so irrespective of the source through which the reality of the situation is brought to the notice of the Court.
59. As observed by the Supreme Court, to persist that prosecutions where emotive issues are involved in the name of vindicating the law may be counter-productive and it may be necessary in a fit case to interfere to create an atmosphere of goodwill or for the purpose of not disturbing calm which has been restored so also the broad ends of public justice may include social purpose and such interest of public justice may overflow the legal justice of a particular litigation and it was also indicated that the communal fueds which have been amicably settled should not be allowed to re-erupt on account of such prosecutions. Such consideration would also include those of public justice and of promoting long lasting security in locality and also creating an order in a disorderly situation. It is also indicated that every offence has a social or economic cause behind it. In view of all these circumstances which have been canvassed by the learned Advocate General even in the context of the role of the Court to be played in such matters, the Court will have to seriously assess the situation and to go to the root of the merits or final adjudication since the prima facie plausibility of these contentions cannot be denied in view least such an obligation would justify a further detailed probe and enquiry by the Court in making its final adjudication on merits essentially and this can obviously be done at the state of final hearing.
60. One feature may be referred to though incidentally. Shri Baht, the learned Counsel, submitted that the stance adopted by the State smacks of mala fides and the intervention of the Chief Minister has also been placed under debate and some oblique motive's suggested so as to protect respondent No. 3. Normally I would not have even considered this aspect at least at this stage of admission in view of the other dominant features which are already discussed and the Court would be slow to examine such features unless it is necessary under the circumstances. However, Shri Bhat insisted on this feature as according to him even assuming the locus by the State it is governed by the oblique motive and since the locus is very much under debate, atleast a cursory reference to this feature has become inevitable even at this stage. As stated, the learned Counsel wanted to suggest that there is some dubious motive to save respondent No. 8 and it is for that purpose that a camaflouge has bean created by the State whereas there is no such problem of law and order and it was also questioned though in a veiled manner about the intervention of the Chief Minister in getting the apology from the third respondent. The learned Advocate General has contested this position and in my opinion rightly so. The situation appears to be otherwise. As stated the Community as a whole clamoured for an apology from the third respondent and it was so demanded before 1st of September. At that stage the Chief Minister was not in the picture. Even though the date was over the demand continued and which was obviously on account of the earnest desire on the part of the community to restore harmony. Then also the Chief Minister was not in the picture. Then on two occasions some statement was taken from the third respondent though one was through his brother on his behalf. Both these statements were not acceptable to the community for certain reasons as they doubted their genuineness. Then also the Chief Minister was not in the picture though Dr. Jamkhanawalla did offer his services in that behalf. It is only thereafter that it was felt that the apology should be tendered but it should be genuine to the satisfaction of all people and it should be published to the entire community which could be done only through the telecast of Doordarshan and thus it was felt that for the authenticity of the statement and signature some agency which was acceptable to all was necessary and it is only at that stage that the Chief Minister's intervention was sought for, who in turn realising that if a statement it made by the third respondent as demanded by the community the whole chapter is likely to be closed which would enable for restoration of peace and harmony and obviously it is with that object that the Chief Minister appears to have consented and did obtain the statement from the third respondent which is claimed to have been signed in his presence and thereafter it was shown on the Doordarshan when the Chief Minister was present, all of which was for the entire community and it is by that community that the statement was accepted as genuine and also with satisfaction and earnest desire of the third respondent and therefore the chapter was closed. The Chief Minister as the Head of the State was obviously concerned to restore harmony between the two communities and when he was made to realise that his intervention at the last stage would bring about the result he came in the picture. This is properly indicated in the complaint itself. In the second chapter it would be too hazardous to indulge in any conjecture as is sought to be done on behalf of the respondent when it is submitted that the stance adopted by the State in moving this Court is mala fide being with the only intention to save respondent No. 3 which may be for some other purpose. On this count also there does not appear to be any basis whatsoever. On the contrary it is rightly submitted by the learned Advocate General that if a settlement was brought about through the intervention of the Chief Minister though at the last stage of negotiations and it was accepted by the entire community then it was expected that the chapter would have been closed and would not be allowed to be re-opened by any one and therefore as the Head of the State realising that the efforts that were put in getting the settlement and satisfying the entire community would get frustrated since the decision would not be honoured even by one person from that community by lodging the complaint and which in that vein that it could be legitimately felt by the Chief Minister as the person being instrumental to get the settlement which as not imposed by him but it was invited by the community even for his intervention and therefore in the capacity as the Head of the State it is equally legitimate for him to endeavour to see that the said settlement is not frustrated or otherwise it would re-open the potential for disharmony which would create further problems for the State and it is with that object that the State has decided to move the Court in that behalf. These contentions raised by the learned Advocate General on this point at least in the prima facie field appear to be justified especially when there is no element whatsoever to the contrary and no rational can be traced in the said contention raised on behalf of the respondent. Any way on the material as it stands this contention of the respondent cannot be accepted. It may be incidently observed that there is reference to several other features in the complaint about the third respondent such as the allegations that he has amassed wealth by dubious mode and he has been exploiting his followers for which purpose some of his alleged objectionable acts in the name of religion are described in the complaint elaborately under different headings. The learned Advocate General submits that these are thoroughly irrelevant and the further submission is that he does not want even to touch the question of mala fide on the either side because that is irrelevant or otherwise he could have argued that there are mala fide in filling of those complaints. In my opinion the said allegations as incorporated in the complaint are wholly irrelevant so far as the issue involved is concerned and therefore it would be better if that aspect remains untouched either way.
61. As regards the second compliant filed by the second respondent the learned Advocate General submitted that it is not maintainable and at any rate even assuming otherwise there was no justification for the learned Magistrate to take cognizance thereof. It was submitted that the learned Magistrate erred in taking cognizance of the said complaint on 29th September and in recording the verification of the second respondent on 10th of October. Reliance is placed under the provisions of section 190 of the Code of Criminal Procedure in the context of the concept of taking cognizance and it is submitted that though it is not specifically defined under the Code it means taking notice of the offence involving in formal action when the Magistrate applies his mind to the same. It is submitted that in the instant case the learned Magistrate has already taken cognizance of the offences under sections 153, 296 and 298 of the Indian Penal Code in the first complaint filed complaint filed by the first respondent and therefore it was not open for him to take piecemeal cognizance of the same offences practically arising out of the same incident by different complaint. The gravamen of the allegations and carving our the offences in both the complaints is practically identical and it is bound to be so since it arises under the same incident. Section 505 of the Indian Penal Code has been added in the second compliant, though it is over-looked that for that provision prior sanction of the State Government under section 196 of the Code is necessary which is based on the sound principle of public policy and justice. The learned Advocate General therefore submits that it is the basic principle of jurisprudence everywhere that there should be no multiplicity of judicial proceedings and therefore even though in theory any one can set the criminal justice in motion, still its corollary that Court should take notice of complaints of all such persons who know about the incident and the crime would be wholly unacceptable. It is also worth noting that the second respondent is cited as a witness in the first complaint filed by the first respondent and furthermore the second respondent who is Pesh Imam of a mosque has personally actively participated in the negotiations being arrived at the time of settlement. Under the circumstances, the learned Advocate General submits that the second complaint is not maintainable and allowing it to be continued would obviously be abuse of process of Court which should be rectified by quashing of that complaint. All these contentions are acceptable even in this prima facie field which perhaps may necessitate the Courts intervention still more.
62. Irrespective of the outcome of this proceeding the validity of two spacious propositions, one canvassed on behalf of the respondents and other enunciated by the learned Magistrate, both tending to have almost universal application can hardly be endorsed. According to Shri Bhat, the learned Counsel, every aggrieved person has a right to take personal venegance or vendetta against the one who committed the wrong through the medium of Court. Any such concept and feeling of vengenance is allien and total misfit in the structure of any system of administration of justice. The learned Magistrate observed that the Court is the best place to resolve such religious controversies. On the contrary it is far from that as it may become hot bed of religious controversies leading to bitterness between two factions and the experience and history states otherwise about some of the controversies remaining unsolved and unresolved.
63. The assessment of all the relevant shades of the controversy rationally entails in some deductions though restricted to this prima facie field at this stage and those being only tentative and not final and which thereby justifies and necessitates continuation of this proceeding for final hearing. This would be the minimum outcome of this discussion. Thus restricting to the peculiar facts and circumstances of the case strictly in the prima facie field and view it may be acceptable that the State could get vested with the locus to file this petition, which could be notwithstanding that the proceeding arises out of the private complaints wherein the State is not made party, having regard to the peculiar facts and circumstances of the case. Irrespective of any such formal capacity the State may still be entitled to bring to the notice of the Court the nature of the controversy the potentials of the resultant consequences and the necessity for Court's intervention. Even de hors thereof, such feature can be brought to the knowledge of the Court through any conduit or source. Thus the court having been seized of the matter through the State's intervention or through any source, then the Court has an obligation to apply its mind to all the shades of the controversy and the reality of the situation and asses the merits of the proceeding. The Court in a given case can even suo motu examine the situation without the intervention of any agency. Resolving of such controversy as is demanded in this case is capable to fall in the field and canvass of the inherent powers of the Court under section 482 of the Code requiring quashing of the proceedings. The scheme of the Code and any specific provision being not available. The amplitude and field of section 482 of the Code is capable of being brought into play on the facts of the instant case. The matter involves several material and even larger questions of public importance some of which are quite sensitive and the outcome of which would also cover the question of public tranquility and social equilibrium.
64. As is manifest the proceeding involves several sensitive issues of public importance touching the broad based aspect of public welfare, social harmony and public tranquility as also law and order. Many of such questions are also made since both sides conceded that there is no decision of any authority in this field. Two cases are already filed in this metropolis whereas some cases are alleged to have been filed in other State. The repercussions are bound to have extended roots and material effects either way. Under the circumstances it would be desirable to have a authoritative pronouncement in this field. Consequently therefore, this would be a proper proceeding which should be finally decided by Division Bench of this Court and as such reference in that direction would become justified.
65. It is no doubt true that an unusually elaborate discussion is reflected in this judgment even at this stage. However. There are some salient formidable features in that behalf which would furnish justification for such an exercise, which makes the classification necessary. In the first instance the matter was argued at length in details covering every thing of the controversy. Both sides referred to various features in law as also in fact. Several decisions have been cited. In fact both sides argued as if at the final hearing stage. It was suggested by the learned Advocate General that instead of having two rounds the matter can be finally disposed of at this stage itself one way or the other since all points that would be available at the final hearing have been covered at this stage by both the sides and as he also realised that in the nature of things the discussion even at this prima facie stage is bound to be elaborate. Though argued in all details the learned Counsel for respondent Nos. 1 and 2 did not agree to that course being adopted though they also realised the necessity of detailed reasons being assigned. Both sides insisted on a detailed order touching all the points canvassed by them containing elaborate reasons even at this stage, may be for different or even identical purpose. The petition along with its annexure is quite bulky and so are the two complaints filed in the trial Court. As stated, several issues of public importance touching the question of law and order, public tranquility and maintenance of peace and harmony in the society and especially between the two communities are involved. The State's role and capacity in the situation is also very much under controversy and so also the scope and amplitude of the field under section 482 of the Criminal Procedure Code. This is not a case where a cryptic or even one word order either of admission or rejection would serve the purpose. This is a case where since at the threshold challenge is made to the locus of the State and since apparently and ostensibly it may sound rather odd about the State applying for quashing of private complaints, the view point and jurisdiction in that respect as also the contrary view point canvassed on behalf of the respondents has got to be brought on the surface which could be done only through projecting some allied features or otherwise in its absence the picture would be completely hazy and even perplexing. Reference to the factual structure has occurred that would contribute in arriving at the correct position of law also which question could not be answered and even the verification has relevance even at this stage. The manner of demanding the statement from the third respondent and he giving a statement accordingly and the impact of that statement on the whole confurther support to various contentions. The scheme of the Code to be considered since there is no specific provision which could be pin-pointed to resolve this controversy. The nature of the offences and the probability of covering the facts under some other offences under the Indian Penal Code is also required to be considered in details even at this stage or otherwise that the blended questions regarding the State's role and the debate regarding he locus as also the amoplitude of the inherent powers could not be properly appreciated. The reference to some of the decisions had also become necessary at this stage to extract support to the propositions. Unless the entire exercise on this pattern amalgamating all these assorted features which are really scattered and which are required to be collected to have a coherence, is done even at this stage, the real nature of the controversy, the crux of the matter as also the thrust of the rival contentions cannot be clarified. This is one of the rare cases where even at this prima facia stage the discussion would be more or less to the same extent as would be done at the final hearing of the proceeding and this is practically accepted by both the sides. When the matter is being referred to the Division Bench it is felt desirable that both the view points in the context of the factual structure and the principles of law are placed before that Bench so that in a composite and co-herent manner the clarity of the entire picture would become apparent. This obviously could not cause any prejudice to either of the sides and to respondent Nos. 1 and 2 because this discussion and these findings ae obly so that all the points being left open even the respondents to canvass and agitate all their contentions before the Divisions Bench who obviously would decide the matter as per their view irrespective of and even ignoring he observations hereinabove in their independent judgment. This would, therefore, protest the interest of both the sides at the final hearing.
66. There is no final expression of opinion on merits. All the points are left open.
67. The admission of the petition therefore become inescapable. Staying of the proceedings also must follow the admission.
68. Rule.
69. Interim stay of further proceedings of Criminal Case No. 53 of 1988 filed by the first respondent as also that of Criminal Case No. 55 of 1988 filed by the second respondent and which complaints are pending in the Court of the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay.
70. The office to place the papers of this proceeding before the Honourable the Chief Justice and seek necessary orders since it is recommended that this petition be posted for final hearing before an appropriate Division Bench of this Court.