Mr. Abhaykumar D. Ostwal, Advocate for the v. K. Kotecha, APP for
Legal Reasoning
appln-3251-2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3251 OF 2019Vasant s/o Madhavrao MundeAge: 44 years approximately, Occu.: Reporter,R/o. Chhatrapati Sanku, Sathe Chowk,Subhash Road, Beed, Taluka and District BeedPin 431122 (Maharashtra).. ApplicantVersus1.The State of Maharashtraat the instance ofAmalner Police Station, Beed,District Beed, Maharashtra.2.The Superintendent of Police,The office of Superintendent of Police,Beed, District Beed.2A.The Principal Secretary,Home Department, Government of Maharashtra,Mantralaya, Mumbai – 02.3.Ram s/o Shankar Shinde @Prof. Ram Shankar ShindeAge: 50 years, Occu.: Politicianand Social Work,Hon’ble Cabinet Minister,Government of Maharashtra WaterConservation, Protocol Department,Address as mentioned in FIR :Cuffe Parade, Mumbai. Permanent r/o. Karjat, Post: Chondi,Taluka, Jamkhed, Dist. Ahmednagar... Respondents…Mr. Abhaykumar D. Ostwal, Advocate for the applicant.Mr. V. K. Kotecha, APP for respondent Nos.1 and 2.Mr. Mahesh Sonawane, Advocate for respondent No.3 (Appointed)....[1] appln-3251-2019.odt CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 20 JUNE 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present application has been filed for quashing the proceedings inRegular Criminal Case No.10 of 2019 pending before the learnedJudicial Magistrate First Class, Patoda, District Beed arising out of theFIR vide Crime No.192 of 2017 dated 29.10.2017 registered withAmalner Police Station, District Beed for the offences punishable underSections 153,(A), 505(2), 469, 501 read with Section 34 of Indian PenalCode.2.Heard learned Advocate Mr. Abhaykumar D. Ostwal for theapplicant, learned APP Mr. V. K. Kotecha for respondent Nos.1, 2 and2A/State and learned Advocate Mr. Mahesh Sonawane, who isappointed for respondent No.3.3.Learned Advocate appearing for the applicant has vehementlysubmitted that respondent No.3 was the Ex Minister in the Governmentof Maharashtra when the FIR was lodged. He has alleged that with anintention to malign his reputation, some news item was published andcirculated as if he had made those statements in a speech. Those werethe fake news to spread the rumor. However, when offence underSection 153-A of Indian Penal Code was invoked, the prosecution ought[2] appln-3251-2019.odtto have produced the sanction, as is required under Section 196(1)(a) ofthe Code of Criminal Procedure, however, that has not been produced.Sections 505(2) and 501 are in respect of defamation and they are thenon cognizable offences falling in Chapter XXI and XXII of the IndianPenal Code. Except upon a complaint made by the person aggrieved bythe offence, the Court cannot take cognizance of such offence in view ofthe bar under Section 196 of the Code of Criminal Procedure. Section469 of the Indian Penal Code i.e. forgery for the purpose of harmingreputations will not get attracted against the present applicant, as thepresent applicant has been posed as accused No.2 and role attributed tohim is to transmit the alleged newspaper clipping to accused No.1.4.Learned Advocate for the applicant submits that originally the FIRcame to be lodged with Cuffe Parade Police Station, Colaba, Mumbai,which was on the basis of written complaint filed by respondent No.2.Part of the investigation was carried out there and thereafter the saidpolice station abruptly, after it was noticed that respondent No.2 is fromDistrict Beed and within the jurisdiction of Patoda Police Station,transferred the investigation to Deputy Superintendent of Police, whothen made it over to Amalner Police Station, District Beed. Thereafter itcame to be registered at the said police station and the investigation hasbeen undertaken. All these facts would show that unnecessarily thematter has been dragged only on the count that the informant was the[3]
Legal Reasoning
appln-3251-2019.odtMinister in the Government. Even if the material in the charge-sheet istaken as it is, yet the offence has not been made out and, therefore, theproceedings deserve to be quashed and set aside.5.Learned APP objected the application and submitted that thoughinitially the offence was registered against unknown person, yet takinginto consideration the I.P. address, accused No.1 was apprehended andfrom his mobile, it could be gathered that the present applicant hadforwarded him the said fake news. It was tried to be pretended that aninterview has been given in a daily newspaper wherein the informantalleged to have stated that he has been given the good portfolio in theGovernment only because he is capable and carries work. LateShri. Gopinath Munde, who was the then Bhartiya Janata Party leaderwas treating the informant as his son and he has learnt the politics fromhim. It is alleged that he had also stated that even the daughter of lateShri. Gopinath Munde has not learnt the politics from him as has beenlearnt by the informant. It is then stated that the informant had madedefamatory statement against the daughter of late Shri Gopinath Munde,which is stated to have created chaos with the party workers as well asin the mind of general public. According to the informant, this newsclipping has brought disrepute to him and has caused damage to hispolitical image. After the investigation, it has been transpired that nosuch news was ever published by the said newspaper, in whose name[4] appln-3251-2019.odtthe news item was circulated, therefore, it is certainly a forgedinformation for which then the offence under Section 469 of Indian PenalCode gets attracted. It is a cognizable offence and, therefore, certainly,the offence under Section 505(2) and 501 of Indian Penal Code wouldthen get attracted. Though they are non cognizable, but when they arewith the cognizable offences, then they can be tried together.6.A fact will have to be noted that respondent No.2/originalinformant, though served remained absent and, therefore, this Court hadappointed learned Advocate Mr. Mahesh Sonawane, to represent thecause of respondent No.2. Thus, in spite of being a Minister at the timewhen he lodged the FIR, respondent No.2 has failed to appear, when itcame to serving him the notice and appearance in the matter. Thelearned Advocate appointed to represent the cause of respondent No.2has supported the arguments submitted by learned APP and submitsthat when the charge-sheet has been filed and it has been transpiredthat it was the creation of accused No.1 and then he has circulated it i.e.posted it on the Facebook account, he has committed a serious offence.The present applicant cannot be said to be justified in simply forwardingwhatever he has received from any source of information. Thestatements of both the accused have been recorded and it can be seenthat both of them have admitted that the present applicant had forwardedthe Facebook news/post to accused No.1 and then accused No.1 had[5] appln-3251-2019.odtposted it on his own Facebook account/profile. Now, the FSL report hasalso been received, which would be an additional piece of evidence and,therefore, let there be trial against the applicant also. 7.The first and the foremost fact to be noted is that for proving anoffence under Section 153-A of Indian Penal Code, the prosecutionshould prove that the act may be by words either spoken or written, or bysigns or by visible representations etc. has promoted the enmitybetween different groups on ground of religion, race, place of birth,residence, language, caste or community or any other groundwhatsoever, disharmony or feelings of enmity, hatred or ill-will betweendifferent religious, racials, language or regional groups or castes orcommunities. Here, the entire story is only against the informant, evenwe take the facts as it is. At the most, it can be said to be creatingdefamation, but certainly not hatred and there was no question ofinvolvement of any group. Even if for the sake of arguments, we takethat Section 153-A of Indian Penal Code is prima facie getting attracted,yet then there is hurdle under Section 196 of the Code of CriminalProcedure. Here, the cognizance has already been taken by the learnedJudicial Magistrate First Class after filing of the charge-sheet. Section196(1)(a) prohibits any Court from taking cognizance of offence underSection 153-A of Indian Penal Code except with the previous sanction ofthe Central Government or of the State Government. Along with the[6] appln-3251-2019.odtcharge-sheet, no such document granting permission/sanction has beenannexed. Therefore, an act of taking cognizance in absence of suchsanction is illegal. On this count, for the offence under Section 153-A ofIndian Penal Code, the charge-sheet cannot be allowed to sustain. 8.Now, the second cognizable offence that has been stated to begetting invoked is Section 469 of Indian Penal Code. It prescribes thatwhoever commits forgery intending that the [document or electronicrecord forged] shall harm the reputation of any party, or knowing that it islikely to be used for that purpose, shall be punished. Now, in the entirecharge-sheet, there is nothing on record to show that the said forgeryhas been committed by the present applicant. As per the prosecutionstory, the said news clipping under heading “Ikadtk uOgs eqaMs lkgsckapkjktdh; okjlnkj & uk- jke f’kans ” was available in his mobile, thentransmitted the same to the WhasApp of accused No.1, who had thenposted it on his Facebook account with I.D. Munde Dada. That means,already somebody had created that news item and from some othersource, it had reached to the WhasApp of the present applicant. Thereis no investigation as to from whom the applicant had received the saidnews item. We cannot rely on the statement of the present applicant asthe statement of the accused recorded by police is inadmissible. Undersuch circumstance, Section 469 of Indian Penal Code will not get[7] appln-3251-2019.odtattracted against the present applicant. It cannot be stated that therewas common intention between accused No.1 and applicant becausethe applicant has not published the said news item to anybody.Secondly, time and again, this Court has stated that the messagesbetween the two mobile numbers on WhatsAPP are end to endencrypted and unless one of them forwards it, the said post/news cannotgo viral. Only those two persons can see the post and, therefore, neitherSection 153-A of Indian Penal Code nor Section 469 of Indian PenalCode would get attracted against the present applicant.9.As regards offences under Sections 501 and 505(2) of IndianPenal Code are concerned, those are non cognizable in nature and asaforesaid, the cognizable offences are not made out in the presentmatter as well as common intention under Section 34 of Indian PenalCode cannot get attracted here. 10.Another most important fact in this case is that initially the offencecame to be registered with Cuffe Parade Police Station, copy of which ismade available. It can be seen that on the letterhead of the informant,the said complaint was written and given to the police station. It wasthen numbered as Crime No.118 of 2017 with Cuffe Parade PoliceStation. Part of the investigation has been carried out wherein it appearsthat the police had reached up to original accused No.1, then all of a[8] appln-3251-2019.odtsudden, taking into consideration the fact that the Facebook post wasuploaded from Beed District, i.e. the place where accused No.1 resides,the FIR has been transferred by Deputy Commissioner of Police,Mumbai. Thereafter, Deputy Superintendent of Police, Beed hastransferred it to Amalner Police Station. When in fact it is a Cyber crimeand it was seen by the informant in Mumbai, then in view of Section 179of the Code of Criminal Procedure i.e. when an act is an offence byreason of anything which has been done and of a consequence whichhas ensued, the offence may be inquired into or tried by a Court withinwhose local jurisdiction such thing has been done or such consequencehas ensued. That means, the consequence of the act if we take theprosecution story as it is had ensued at Mumbai and therefore, the CuffeParade Police Station was having jurisdiction to make inquiry into. Now,at the time of transfer of the offence, proper procedure has not beenadhered to. Deputy Commissioner of Police, Mumbai has no jurisdictionto transfer the FIR/offence after its registration. It was not the case thatat the time of recording the FIR the police got the knowledge as to whichpolice station other than itself has the jurisdiction to make inquiry andinvestigation and then after recording the FIR under zero number, it wastransferred. In our opinion, the transfer of the present offence after itsregistration and part of investigation could have been only through thisCourt.[9] appln-3251-2019.odt11.Further fact that is required to be noted is that when the offencecame to be freshly registered with Amalner Police Station vide CrimeNo.192 of 2017, the document which has been styled as FIR is notsigned by the informant. Therefore, the basic requirement of Section 154of the Code of Criminal Procedure are not adhered to. 12.With all these reasons, it would be an abuse of process of law, ifthe applicant is asked to face the trial. Hence, the following order :-ORDERI)Criminal Application stands allowed.II)The proceedings in Regular Criminal Case No.10 of 2019pending before the learned Judicial Magistrate First Class,Patoda, District Beed arising out of the FIR vide Crime No.192 of2017 dated 29.10.2017 registered with Amalner Police Station,District Beed for the offences punishable under Sections 153,(A),505(2), 469, 501 read with Section 34 of Indian Penal Code,stands quashed and set aside as against the present applicant -Vasant s/o Madhavrao Munde.III)Fees of learned Advocate, who is appointed to represent thecause of respondent No.3, is quantified at Rs.7,000/- to be paid bythe High Court Legal Services Sub Committee, Aurangabad. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[10]