Criminal Application No. 1598 of 2022 · Bombay High Court
Case Details
Cr. Appln. No.1598.2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1598 OF 2022 Kishor s/o. Gundappa Malkunaik, Age : 46 years, Occ. Service, r/o. Flat No.14, B-Wing, Amrutsai Plaza Building, Aurangabad 1. 2. Vs. The State of Maharashtra, Through Police Inspector, Satara Police Station, Aurangabad Karbhari s/o. Namdeo Nalawade, Age : 52 years, Occ. Service, r/o. Satara Police Station, Tq. and Dist. Aurangabad ---- Mr.A.B.Girase, Advocate for applicant Mr.A.R.Kale, APP for respondent nos.1 and 2 ---- ..Applicant ..Respondents CORAM : R.G.AVACHAT AND SANJAY A. DESHMUKH, JJ. DATE : AUGUST 10, 2023 ORDER :- This application under Section 482 of the Code of Criminal
Facts
Procedure, has been filed for quashment of the FIR, being Crime No.138 of 2022, registered with Satara Police Station, Tq. and Dist. Aurangabad, for the offences punishable under Sections 505(1)(b) and 505(1)(c) of Indian Penal Code and Section 135 of the Maharashtra 2 Cr. Appln. No.1598.2022 Police Act. 2. The First Information Report (FIR) has been lodged by a Police Head Constable, attached with Police Station, Satara, Tq. and Dist. Aurangabad. The gist of averments/allegations in the FIR is that the informant was on duty on 23.04.2022. On that day, at about 07.30 p.m., his colleague received a call, informing him that at the time of “Azaan” of Muslims in Masjid, songs and Hanuman Chalisa were being played on loudspeaker at one of the flats in `C’ Wing of Amrutsai Plaza Society. The informant with other police staff, therefore, rushed to that place. They met Sk. Shafiq Sk. Shabbir, Imran Khan @ Bablu, Mudassir Ansari and other Muslim persons. A sizable group of Muslim persons had gathered there. There was tense situation. Some of them pointed the informant and his colleagues the particular flat, from which loud sound had been emanated. The police personnel, therefore, went up-stairs and inquired with the occupant thereof. He disclosed his name as Kishor Malkunaik (applicant herein). He was serving as Police Sub Inspector, Railway Police Force at Parali-Vaijnath, Dist. Beed. His headquarters was at Hyderabad. On search of his flat and inquiry 3 Cr. Appln. No.1598.2022 with him, it was realised that songs were being played on loudspeaker. A speaker was kept at the window, facing towards the Masjid. 3. It has further been averred in the FIR that the Commissioner of Police, Aurangabad, had promulgated an order dated 22.04.2022 under Section 37(1) and (3) of the Maharashtra Police Act, 1951, prohibiting public utterance of cries, singing of songs, playing of music, etc. Said order was in force. It has, ultimately, been averred in the FIR that songs were played by the applicant on loudspeaker only with a view/intention to create unrest between two communities, i.e. Muslims on one hand and the others, on the other. It was also his intention to commit breach of public piece and cause alarm amongst members of the society. 4. The crime is under investigation. The statements of persons from the vicinity have been recorded. It is, however, not known that over 16 months are over post registration of the crime, why charge sheet has still not been filed. Be that as it may. 5. Heard learned counsel for the parties. 4 Cr. Appln. No.1598.2022 6. Learned counsel for the applicant would submit that it was birthday of the applicant’s son. The applicant and his family members along with friends and relations were celebrating birthday. Birthday songs were being played through blue-tooth. The applicant had no intention to disturb the prayer made at the nearby Masjid. According to him, no ingredients of the offence punishable under Sections 505(1)(b) and 505(1)(c) of Indian Penal Code could be attracted. He, therefore, urged for allowing the application. 7. Learned APP would, on the other hand, submit that the averments in the FIR, prima facie, make out the offence. The statements of witnesses reinforce the allegations in the FIR. He, therefore, urged for rejection of the application. 8. Considered the submissions advanced. Perused the FIR and the police papers relied on. 9. True, it was the time of offering prayer (Azaan) at Masjid. The applicant has his flat in the society, nearby a Masjid. The statements of the persons belonging to Muslim community 5 Cr. Appln. No.1598.2022 suggest that religious songs were loudly played on speaker kept at the window of the flat. The statements of the occupants of the building, wherein, the applicant stays, indicate that it was the time of celebration of birthday of the applicant’s son and birthday songs were being played. They also stated that Hanuman Chalisa was also played. There is a communication dated 01.02.2022, made by the Police Station Officer to the applicant herein, asking him to surrender his cell-phone used for playing of Hanuman Clalisa and other religious songs. 10. The question is, whether there is material to indicate the applicant to have committed the alleged offence. It is, therefore, necessary to advert to the relevant provisions of I.P.C., invoked against the applicant. Section 505 of I.P.C. reads thus :- “505. Statements conducing to public mischief.- (1) Whoever makes, publishes or circulates any statement, rumour or report, - (a) ….. (b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or 6 Cr. Appln. No.1598.2022 (c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years or with fine, or with both.” 11. We have every reason to observe that it was the time of birthday celebration of the applicant’s son. The statements of the occupants of the building in which the applicant resides, vouch for the same. It was the evening time. Hanuman Chalisa was also played on the speaker. There is no prohibition to play religious songs at the residence of oneself. Close reading of Section 505 of I.P.C., would suggest what is made punishable is making, publishing or circulating any statement, rumour or report with intention to cause or which is likely to cause fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquility; or with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community. 7 Cr. Appln. No.1598.2022 12. It appears that celebration of birthday and the time of
Legal Reasoning
offering prayer at the Masjid did coincide. There is prima facie nothing to indicate the applicant had published or circulated any statement, rumour or report with the aforesaid intention. So far as regards offence under 135 of the Maharashtra Police Act is concerned, the same is non-cognizable. It is also doubtful as to whether the Commissioner of Police can promulgate such order, prohibiting playing of songs at one’s residence. In our considered view, no ingredients of offences punishable under Sections 505(1) (b) and 505(1)(c) of Indian Penal Code and Section 135 of the Maharashtra Police Act, are even prima facie made out. The FIR is, therefore, liable to be quashed. 13.
Decision
In view of the above, the application is allowed in terms of prayer clause (B). [SANJAY A. DESHMUKH, J.] [R.G. AVACHAT, J.] KBP