High Court
Facts
(1) 25-appln-2542-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2542 OF 2025SUDHIR VACHIST GULBHILEVERSUSTHE STATE OF MAHARASHTRA...Mr. Arun G. Pawar h/f Mr. Rahul Rajiv Deshmukh, Advocate forApplicant.Mr. P. S. Patil, Addl. PP for Respondents-State.… CORAM : SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATED : 18th AUGUST, 2025.P.C. 1.The present application has been filed under Section 482 ofthe Criminal Procedure Code, 1973 for quashment of theproceedings in Regular Criminal Case No.105/2025 pending beforelearned Judicial Magistrate First Class, Kaij, Dist. Beed arisingout of First Information Report vide Crime No.141/2024 dated13.06.2024 registered with Yusuf Wadgaon Police Station, TalukaKaij, District Beed, for the offences punishable under Section505(2) of Indian Penal Code, 1860.2.Heard learned Advocate Mr. Pawar holding for learnedAdvocate Mr. Deshmukh for applicant and learned Addl. PP Mr.Patil for respondent-State.3.In order to cut short it can be stated that both sides havemade submissions in support of their respective contentions. Inpresent case, FIR has been lodged by Police Constable Yogesh (2) 25-appln-2542-2025.odtKeshavrao Samudre attached to Yusuf Wadgaon Police Stationand, therefore, there was no necessity for him to be included asparty/respondent separately.4.In FIR it has been alleged that secrete information wasreceived that after Lok Sabha Election various objectionable postsand comments were posted in respect of caste and religion withinBeed District. The atmosphere that was intended to be createdwas not conducive to social life. Even at Wadwani, Shirur-Kasar,Beed and Parli when such objectionable posts were made orcreated, persons from different community had raised agitation.He received some screenshot from some secrete informant onWhatsApp at 10.00 am on 13.06.2024. When he saw screenshot, itwas on group by name ‘vkEgh fnisoMxkdj’. He has then noted that oneSudhir Gulbhile, a member of the said group, had posted a postregarding the number of persons in the village belonging to theVanjari community, stating that he would give his vote to aparticular political party and that if anybody had any objection,they should contact him. He is then in a way invited by sayingthat ‘always welcome anytime anywhere’. All these statementswere stated to be on the next day of result of Lok Sabha Election.The informant then says that if this post is considered, then thatwould create hatred amongst Vanjari community of village and,therefore, said FIR was lodged alleging that present applicant has (3) 25-appln-2542-2025.odtcommitted offence punishable under Section 505(2) of Indian PenalCode.5.The charge-sheet would show that from the accused, mobilephone has been seized and then there are statements of witnesses,who are members of said WhatsApp group. All of them have statedthat the present applicant had posted the said post. There isstatement of one Shyam Gulbhile, who claims that he is Admin ofsaid group, but his statement does not show that immediately aftersaid post whether he has taken any action for deleting message, sothat other members should not see the same.6.Even if for the sake of argument it is accepted that presentapplicant had posted the said post and contents of charge-sheetincluding FIR are attracted ingredients of Section 505(2) of theIndian Penal Code, next question then arises as to whethersanction as required under Section 196(1-A)(a) of CriminalProcedure Code was obtained or not and was placed before learnedMagistrate alongwith charge-sheet or even thereafter beforecognizance was taken. By our order dated 29.07.2025 after takingnote of the fact that Fehrist (list of documents) alongwith charge-sheet does not show sanction and when it appeared that summonshas been issued to applicant, that means cognizance has beentaken by learned Magistrate; before taking further steps we calledupon learned Judicial Magistrate First Class, Taluka Kaij, District
Legal Reasoning
(4) 25-appln-2542-2025.odtBeed before whom RCC No.105/2025 is pending to submit report asto when the charge-sheet was presented on 15.04.2025, there wassuch sanction order as contemplated under Section 196(1)(a) ofCriminal Procedure Code or it was filed between 15.04.2025 to22.04.2025 i.e. before he took cognizance of matter. Now report hasbeen received from concerned learned Magistrate stating that nosuch sanction was produced alongwith charge-sheet nor it was filedbetween 15.04.2025 to 22.04.2025. However, the concerned Courthas taken cognizance of offence under Section 505(2) of IndianPenal Code on 22.04.2025. 7.The learned APP is also producing written instruction fromconcerned Police Station. They are taken on record by markingExhibit ‘X’ for identification, wherein even police have acceptedthat no such sanction was ever taken.8.Time and again, this Court in various matters in past hasclarified and brought the provisions to the note of the learnedMagistrates, still at the ground level things are not going in properdirections. Fortunately or unfortunately, the learned Magistratewho had passed the order of taking cognizance on 22.04.2025 wastransferred in the Annual General Transfers, and the Magistratewho has submitted the report today took over the charge in June2025. (5) 25-appln-2542-2025.odt9.Section 196(1-A)(a) of Criminal Procedure Code provides that“No Court shall take cognizance of – (a) any offence punishable under sections 153-B or sub-section(2) or sub-section (3) of section 505 of the Indian Penal Code, or (b) a criminal conspiracy to commit such offence, ----except with previous sanction of the Central Government orof the State Government or of the District Magistrate.” 10.This sanction is not an empty formality. While granting suchprevious sanction, there has to be an application of mind byCompetent Authority taking into consideration the facts. Thissanction is necessary since the State is duty bound to maintainharmony in society among persons of different castes, creeds andreligions. When any group or religion is attacked by such an act,sanction is required not only to proceed against the person againstwhom such allegations are made, but also to safeguard theconcerned person, caste, or religion. The said Section createsstatutory bar for Magistrate for taking cognizance of said offence.Of course, it does not prohibit filing of charge-sheet without suchsanction, but before cognizance is taken the investigating agencywill have breathing time to get such sanction. When there isstatutory bar, Magistrate is duty bound to consider all documentsespecially whether such sanction as contemplated under provisionsof Act or Code is placed on record or not. The Magistrate may (6) 25-appln-2542-2025.odtrefuse to take cognizance of offence, if such sanction is not obtainedor may by postponing matter ask Investigating officer to clarifysituation. 11.Here no precaution appears to have been taken by learnedMagistrate before passing order of issuing process i.e. takingcognizance. The Magistrate failed to see that sanction order ascontemplated under Section 196(1-A)(a) of the Criminal ProcedureCode is not annexed with charge-sheet. Now, police have clarifiedthat no steps has also been taken. Thus, when cognizance has beentaken inspite of Bar of statutory sanction or provision, then itwould be an abuse of process of law to ask applicant to face trialand, therefore, we are of the opinion that case is made out forexercise of powers under Section 482 of Criminal Procedure Code.Hence, we proceed to pass the following order.ORDERa.The Criminal Application stands allowed.b.The proceedings in Regular Criminal Case No.105/2025pending before learned Judicial Magistrate First Class, Kaij, Dist.Beed arising out of First Information Report vide CrimeNo.141/2024 dated 13.06.2024 registered with Yusuf WadgaonPolice Station, Taluka Kaij, District Beed, for the offencepunishable under Section 505(2) of the Indian Penal Code, 1860,stands quashed and set aside as against the present applicant. (7) 25-appln-2542-2025.odtc.The learned Registrar (Judicial) of this Court is directed tocirculate this order to all the Courts in Maharashtra.(SANJAY A. DESHMUKH) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/August-2025