High Court

Legal Reasoning

(1) appln-2345-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2345 OF 2020Dr. Ganesh S/o. Shridharrao Dhawale,Age: 45 years, Occu: Medical Practitioner,R/o. At Post. Limbaganesh, Tq. Beed,Dist. Beed...ApplicantVersus1.The State of MaharashtraThrough Police Inspector, City Police Station Beed, Tq. and Dist. Beed.2.The Superintendent of Police,Beed, Tq. & Dist. Beed.3.Dr. Ashok Sanpatrao Thorat,District Civil Surgeon Beed,Tq. & Dist. Beed...Respondents …Mr. M. S. Bhosale, Advocate for the Applicant.Mr. A. R. Kale, APP for Respondent Nos.1 and 2. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 20th SEPTEMBER, 2024.ORDER (Per S. G. Chapalgaonkar, J):-1.The applicant has approached this Court under Section 482of the Criminal Procedure Code seeking quashment of FIR inCrime No.210/2020 dated 09.09.2020 registered with City PoliceStation Beed, Tq. & Dist. Beed for offences punishable underSections 188, 505(2) of the Indian Penal Code and Section 51(b) ofthe Disaster Management Act, 2005. During the pendency of thisapplication, charge-sheet came to be filed before Chief JudicialMagistrate at Beed. Consequently, applicant has added prayer toquash and set aside charge-sheet and consequential criminal (2) appln-2345-2020.odtproceeding in R.C.C. No.144/2021 pending before Chief JudicialMagistrate at Beed.2.The respondent no.3-District Civil Surgeon, Beed lodgedreport dated 09.09.2020 alleging that he is discharging his dutiesat Civil Hospital, Beed. The emergency situation has been arosedue to outbreak of Covid-19 pandemic. There are large number ofpatients in Beed District. The Health Department is busy intreating such patients and providing health facilities. In thissituation, accused/applicant has uploaded Facebook post defamingHealth Department and creating unrest amongst patients.Further, accused declared name of Covid victim through his socialmedia post, which is prohibited under law. The accused person is,therefore, guilty of offences punishable under Sections 505(2), 188of the Indian Penal Code and Section 51(b) of the DisasterManagement Act, 2005.3.On the basis of aforesaid report, Crime No.210/2020 has beenregistered with City Police Station Beed against applicant. Aftercompletion of investigation, charge-sheet has been filed.4.Mr. Bhosale, learned Advocate appearing for the applicantsubmits that prosecution has been withdrawn in respect of offencespunishable under Section 188 of the Indian Penal Code and Section51(b) of the Disaster Management Act, 2005 as per GovernmentResolution dated 20.09.2022. Therefore, criminal proceeding ispending only to the extent of offence punishable under Section505(2) of the Indian Penal Code against applicant/accused. Hewould invite attention of this Court to the order dated 13.09.2024passed by the Chief Judicial Magistrate, Beed, thereby permittingwithdrawal of the prosecution for offences punishable under (3) appln-2345-2020.odtSection 188 of the Indian Penal Code and Section 51(b) of theDisaster Management Act, 2005 and permitting prosecution to theextent of Section 505(2) of the Indian Penal Code.5.Mr. Bhosale would submit that no case can be made outagainst applicant for offence punishable under Section 505(2) of theIndian Penal Code on the basis of stipulations in the FIR. Theapplicant has raised genuine concern as regards to the healthservices and facilities provided by the District Administrationduring pandemic situation. He would submit that to attractoffence under Section 505(2) of the Indian Penal Code, thepublication or circulation of the statement must be with intent tocreate or promote enmity, hatred or ill-will between classes on theground of of religion, race, place of birth, residence, language, casteor community etc. In present case, no such intent is discernible.He would, therefore, urge to quash and set aside FIR andconsequential proceeding pending against applicant. 6.Per contra, Mr. Kale, learned APP appearing for respondent-State submits that when District Administration was doing its bestto save maximum patients from pandemic, applicant was busy increating unrest in the mind of public at large and creating ill-willagainst employees of the Health Department.7.We have considered submissions advanced on behalf oflearned Advocate appearing for respective parties. Chapter XXII ofthe Indian Penal Code deals offences relating to criminalintimidation, insult and annoyance. The relevant part of Section505 of the Indian Penal Code reads as under:“505. Statements conducing to public mischief —(1) ………………...(a) …………………. (4) appln-2345-2020.odt(b) ………………..(c) ………………..(2) Statements creating or promoting enmity, hatredor ill-will between classes —Whoever makes, publishes or circulates any statement orreport containing rumour or alarming news with intent tocreate or promote, or which is likely to create or promote, ongrounds of religion, race, place of birth, residence, language,caste or community or any other ground whatsoever, feelingsof enmity, hatred or ill-will between different religious,racial, language or regional groups or castes orcommunities, shall be punished with imprisonment whichmay extend to three years, or with fine, or with both. (3) ……………….”8.The cognizance of aforesaid offence is guarded by Section 196of the Criminal Procedure Code. The relevant part of Section 196of the Criminal Procedure Code reads as under:“196. Prosecution for offences against the State and forcriminal conspiracy to commit such offence(1) No Court shall take cognizance of—(a) any offence punishable under Chapter VI or undersection 153A, section 295A or sub-section (1) of section505 of the Indian Penal Code (45 of 1860), or(b) a criminal conspiracy to commit such offence, or(c) any such abetment, as is described in section 108A ofthe Indian Penal Code (45 of 1860), except with theprevious sanction of the Central Government or of theState Government(1A) No Court shall take cognizance of —(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of theIndian Penal Code (45 of 1860), or(b) a criminal conspiracy to commit such offence, exceptwith the previous sanction of the CentralGovernment or of the State Government or of theDistrict Magistrate”9.The plain reading of aforesaid provision, particularly Sub-Section (1A), which is inserted by Act 63 of 1980 w.e.f. 23.09.1980stipulates that no Court shall take cognizance of any offence under (5) appln-2345-2020.odtSub-Section (2) or (3) of Section 505 of the Indian Penal Code,except with previous sanction of the Central Government or of theState Government or of the District Magistrate. In light ofaforesaid provision, we have specifically called upon learned APPto point out, if any, sanction has been accorded by the competentauthority. The learned APP on specific instructions madestatement that no such sanction has been accorded or evenattempted before filing of charge-sheet. From the record ofproceeding before the learned Magistrate we find that learnedMagistrate has taken cognizance after filing of charge-sheet inR.C.C. No.144/2021 on 01.03.2021. The Sub-Clause (1A) of Section196 of the Criminal Procedure Code clearly stipulates that noCourt shall take cognizance of offence under Sub-Section (3) ofSection 505 of the Indian Penal Code, except with previoussanction of the Central Government or the State Government or ofthe District Magistrate. Admittedly, neither any proposal forsanction was moved to the competent authority nor such sanctionhas been accorded. We find that in absence of sanction, it wouldnot be permissible for learned Magistrate to take cognizance ofoffence under Section 505(2) of the Indian Penal Code. Hence,charge-sheet and consequential criminal proceeding in pursuanceof FIR in Crime No.210/2020 dated 09.09.2020 registered with CityPolice Station Beed is liable to be quashed and set aside. Hence,we proceed to pass following order:ORDERa.Criminal Application is allowed.b.The FIR in Crime No.210/2020 dated 09.09.2020 registeredwith City Police Station Beed, Tq. & Dist. Beed for offencespunishable under Section 505(2) of the Indian Penal Code as well (6) appln-2345-2020.odtas criminal proceeding in R.C.C. No.144/2021 pending before ChiefJudicial Magistrate at Beed, is hereby quashed and set aside.c.Criminal Application is disposed of.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/September-2024