Karnataka High Court
Atul Kumar Sabarwal @ Madhugiri Modi vs State Of Karnataka on 21 March, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.150 OF 2022 (GM-RES)
BETWEEN:
ATUL KUMAR SABARWAL @ MADHUGIRI MODI
AGED ABOUT 47 YEARS,
S/O RAMACHANDRAPPA
R/AT HONNAPURA VILLAGE
DODDERI HOBLI MADHUGIRI TALUK
TUMKUR-572132
... PETITIONER
(BY SRI MADHUSUDHAN ADIGA B., ADVOCATE (PHYSICAL
HEARING))
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF HOME
REP. BY THE PRINCIPAL SECRETARY
TO GOVERNMENT
VIDHANA SOUDHA
BENGALURU - 560 001
2. THE SUPERINTENDENT OF POLICE
TUMKUR DISTRICT
TUMKUR-572102
3. THE STATION HOUSE OFFICER
BADAVANAHALLI POLICE STATION
MADHUGIRI TALUK
TUMKUR-572112 ... RESPONDENTS
2
(BY SRI ROHITH B.J., HCGP (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA R/W. SECTION 482 OF CR.P.C. PRAYING
TO QUASH THE FIR IN CR NO.56/2020 DTD. 29.08.2020,
U/S.153(A), 295(A), 504, 506, IPC, ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (JUNIOR DIVISION) AND JMFC COURT, MADHUGIRI
TALUK, TUMKUR DISTRICT VIDE ANNX-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner calls in question proceedings in Crime No.56/2020 registered on 29.08.2020 for offences punishable under Sections 153A, 295A, 504 and 506 of the IPC.
2. Heard Sri.Madhusudhan Adiga.B., learned counsel for petitioner and Sri.Rohit.B.J., learned High Court Government Pleader for respondents.
3. Petitioner was charged for forwarding WhatsApp message, which contained certain derogatory message, which reads as follows:
"Muslim Terrorist gangster Ansari's house has been demolished by Yogiji; in a few years the Prime Minister of Hindu Rashtra will demolish the houses of each and every 3 supporter of Muslim Terrorists, Madrasa and Masjids. It had the title Hindu Samrat Dharmasena."
4. The Co-ordinate Bench of this Court, in identical circumstances in W.P.No.24900/2018 disposed on 27.01.2020, interpreting Section 153A of the IPC, has held as follows:
"9. For the purpose of brevity, I quote Sections 153A and 295A of IPC.
"S. 153 A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-Whoever -
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racials, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or (c ) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional 4 group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Offence committed in place of worship, etc --(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
295A. Deliberate and malicious acts, intended to outrage reli-gious feelings of any class by insulting its religion or reli-gious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.]"
On close reading of Section 153A of IPC, it indicates that a person either by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racials, language or regional groups or castes or communities, or commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, then the said offence constitute and in order to constitute an offence, it is essential that the act of the accused must be with intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is 5 the sine qua non of the offence under Section 153-A IPC. This issue also came up before the Hon'ble Apex Court in the case of Manzar Sayeed Khan Vs. State of Maharashtra and Another (quoted supra) at paragraph No.16, it has been observed as under:
"16. Section 153-A IPC, as extracted hereinabove, covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquillity. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book and the circumstances in which the book was written and published. The matter complained of within the ambit of Section 153-A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning."
Even as could be seen from section 295A of IPC, it indicates that what is penalizes is only those acts of insults or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention then the provisions of Section 295A of IPC is attracted. This issue also came up before the Hon'ble Apex Court in the case of Mahendra Singh Dhoni (quoted supra), at paragraph No.6, it has been observed as under:
"6. On a perusal of the aforesaid passages, it is clear as crystal that Section 295-A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and 6 malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty."
On close reading of the said provision and the decisions quoted supra, makes it very clear that in order to attract the provisions of Sections 153A and 295A of IPC, the said act of the accused, must be an intentional one. On close scrutiny of the charge sheet material which has been made available indicates thats except the voluntary statement of accused No.3 and the statement of one Mr. R. Vasanth Kumar, who is the owner of the Gujari shop for having purchased two heads of dead pigs, no other materials have been produced to show that with deliberate intention, the petitioner/accused along with other accused persons have purchased two heads of dead pigs to commit the offence. Even as could be seen from the contents of the complaint, it indicates that the police officials while on patrolling duty, at about 5.15, a.m. they saw the head of dead pig, which were kept by someone in Masjid. But there is no material to show that it is petitioner/accused No.3 along with other accused persons have brought the same and have kept in front of Masjid. Though it is contended by the learned High Court Government Pleader that an inference or presumption can be drawn that it is petitioner/accused No.3, ought to have purchased the said heads of dead pigs and he has kept the same in Masjid so as to affect the religion feelings but it is well settled proposition of law that only on the basis of presumption, it cannot be inferred that the accused persons were having an intention and with that intention, petitioner/accused has purchased the two heads of the dead pigs and thereafter, the same has been kept in front of Masjid. In 7 the absence of any link or material, no inference can be drawn as against accused.
10. Looking from any angle, I am of the considered opinion that the essential ingredients, which have to be satisfied as contemplated under the law, the same are lacking. Even the allegations are based upon the voluntary statement of the accused. The voluntary statement of the accused cannot be used for any other purpose other than as contemplated under Section 27 of the Evidence Act, 1872 and as could be seen from the records, the voluntary statement of accused No.3 has been recorded on 19.09.2008 and prior to that, the statement of R. Vasanth Kumar has been recorded on 30.07.2008 and also the voluntary statement of accused No.5 has been recorded on 10.07.2009. The said statements of the accused are also in a stereo type recording.
11. Taking into consideration of the above said facts and circumstances of the case I am of the considered opinion that in order to constitute an offence, there must be mens rea. Without there being any intention, the accused cannot be convicted for the alleged offences.
12. Be that as it may. As could be seen from the sanction order of Government dated 21.06.2013, it indicates that it has only referred the sending of material and contents of the complaint. Thereafter, stated that the statement of the witnesses and other things, constitute an offence under Section 196 of the IPC. In order to constitute an offence, there must be a sanction of Central Government or the State Government and without there being any sanction; no Court shall take the cognizance of the offence. No doubt the sanction order has been produced. A fair perusal of the sanction order produced by the prosecution indicates that the requisite materials constitute the alleged offences and are not placed before the sanctioning Authority. The sanction has been accorded only on the basis of the requisition made by the DGP and IGP and the said order does not refer to the facts and statement of the 8 witnesses for having perused the same and without satisfying the sanction order itself has been issued. Though it is contended by the learned High Court Government Pleader that the said Section 196 does not say that there must be an application of mind. But when the sanction has to be issued, the object and spirit of the Section if it is taken into consideration, then the frivolous and a false complaint should not be encouraged as it affects the tranquility and the peace of the country in that light, the said provisions has been made. Entire material if it is perused, it indicates that where he has seen the intention of the accused and where he has satisfied and also has not been specifically stated that it is one of the essential ingredients to constitute an offence. In the absence of such material, the sanctioning Authority has not applied its mind before issuing the sanction order dated 21.06.2013. Looking from any angle, the materials produced does not constitute an offence so as to proceed against the accused.
13. It is the contention of the learned High Court Government Pleader that at this juncture, the matter has to be considered and appreciated at the time of evidence and arguments. But it is well settled proposition of law that the ingredients of the offences are lacking. Under such circumstance, the proceedings and holding a trial that itself is nothing but an abuse of process of law and it is a waste of Courts time. In that light also, the contention of the learned High Court Government Pleader is not acceptable.
14. Looking from any angle, the prosecution has not made out any case so as to proceed against petitioner/accused No.3.
15. In the light of the discussions held by me above, I am of the considered opinion that it is a fit case to exercise the power under Section 482 of Cr.P.C. In that light, petition is allowed and the proceedings in C.C. No.14793/2013 on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru for the offences 9 punishable under Sections 295A, 153A and 120B read with Section 34 of IPC in so far as petitioner/accused No.3 is concerned are quashed."
4. In the light of the aforesaid order passed by the Co-
ordinate Bench of this Court (supra) interpreting Section 153A of the IPC and quashing proceedings for non-compliance of the provisions of law, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned proceedings in Crime No.56/2020 dated 29.08.2020 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC Court, Madhugiri Taluk, Tumkur District stand quashed.
Sd/-
JUDGE bkp CT:MJ