High Court
Legal Reasoning
13Cri.Appln_4026_2019said conversation. Now, as regards identity of the person is concerned,interestingly, the Investigating Officer has not recorded the statement ofVinayak Sudarshan and as per the said form, he appears to be fromChandbari, Yadgir (Karnataka State). But one of the communications byInvestigating Officer states that since the date of taking sim card till theoffence has been committed, it is with the applicant, and the accused hasgiven that confession. The Investigating Officer appears to be not wellconversant with how a confession is to be recorded and confessionalstatement given to a Police Officer is not admissible in a Court of Law. Thenthere are statements of friends and father of applicant regarding the numberbeing used by applicant. Instead of having a concrete evidence, it appearsthat the Investigating Officer is relying upon the statements under Section161 of the Code of Criminal Procedure. The mobile handset has been seizedand even it is stated that CDR, SDR has been procured, but those are notforming part of charge sheet. Even FSL report is also not produced. Therewas absolutely then no hurry for Investigating Officer to file charge sheet,which can be said to be incomplete. 10However, coming back to the conversation, as we take it as it is,we find that the said conversation absolutely does not show any disrespect toDr. Babasaheb Ambedkar. Rather it is stated that the said caller was asking 14Cri.Appln_4026_2019the informant, as to why he is using the name of Dr. Babasaheb Ambedkarwhen he is not behaving on his footsteps. At one place, it is specificallyuttered by the caller that because of them Baba (Dr. Babasaheb Ambedkar) isdefamed, he is respecting Dr. Babasaheb Ambedkar, but because of peoplelike you the respect in him (Dr. Babasaheb Ambedkar) is reduced nowadays.This conversation in no way disrespect to Dr. Babasaheb Ambedkar or depictintention to disrespect or disturb harmony between two communities.Another important fact which we will have to consider is that it was thereaction of a person from the community against whom informant hadposted provocative comments, so, that it has to be taken as a naturalreaction. Person from only one community then cannot have right to object,if he had done some provocative act. There has to be reciprocal respect forpersons amongst all the communities and castes. That is what is soul ofconstitutional scheme. We have expressed earlier also that nowadayseverybody is sensitive about his own caste and community which is withoutshowing or reciprocal respect to the other community or caste. If we take thesaid conversation as it is, then even the informant has disrespected or madeprovocative statements which are against the another community. Therefore,on the same piece of evidence he cannot say that only the applicant hascommitted the offence. If neither community and persons in thecommunity/caste are showing restraint and there are no efforts in bringing 15Cri.Appln_4026_2019harmony, such incidences would increase in future. It is not necessary thateach and every bad comment/post or speech should be reacted. There aresophisticated ways and means to show dissent to a person who give suchprovocative post. 11Here, in this case, the conversation was on a phone call, whichthe informant says that he has recorded. Nobody else has heard any of theconversation when it was going on. The intention behind enacting Section298 of the Indian Penal Code as well as Section 3(1)(u) and (v) of theAtrocities Act appears to be not to take cognizance of a private conversation(which is not heard by a third person or the telephonic conversation). Here,it appears that Investigating Officer had not collected the other posts whichinformant appears to have made viral, which were the photographs andstating ‘Brahman Mukt Bharat’ and a picture showing that the othercommunity should kick the Brahmin community and it is captioned as “TabhiAage Badhega India”. All these posts of informant were provocative, whichcan be certainly said to be with an intention to affect sentiments of thatcommunity and, therefore, certainly, when there was a reaction to hisprovocative posts, thereby he had instigated or invited the comments, hecannot now say that it amounts to an offence. In First Information Reportinformant has only chosen those words which were according to him, 16Cri.Appln_4026_2019amounted to offence, thereby eliminating other conversation is rather pickand choose method, which cannot be allowed to sustain. 12Now, as regards First Information Report is concerned, when itwas lodged, that is, on 14.08.2019, he had given his religion as ‘Navbauddha’and as aforesaid, later on his supplementary statement has been recordedand then he says that he was not having the certificate. During the course ofinvestigation he had placed the certificate and, therefore, only on that countwe may not be with learned Advocate for applicant. 13However, taking into consideration the reasons stated above, itwould be abuse of process of law if the applicant is asked to face the trial.This case would definitely come within the category No.7 of guidelines inState of Haryana and others vs. Chh. Bhajan Lal and others [AIR 1992 SC604], which reads as under : “7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with anulterior motive for wreaking vengeance on the accused and with aview to spite him due to private and personal grudge.”14Therefore, the application deserves to be allowed. Hence,following order. 17Cri.Appln_4026_2019ORDERi)Criminal Application stands allowed. ii)The proceeding in Special Case No.52/2020 pending beforelearned Special Judge, under the S.C. & S.T. Act, Aurangabad arising out ofFirst Information vide Crime No.89/2019 dated 14.08.2019 registered withPolice Station, Daulatabad, Dist. Aurangabad, for the offence punishableunder Sections 298, 505, 505(2), 506, 507 of the Indian Penal Code, 1860and under Sections 3(1)(u), (v) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989, stands quashed and set aside asagainst applicant Devendra Rajiv Patil. ( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.4026 OF 2019Devendra Rajiv Patil,Age 27 yrs., Occ. Service,R/o Flat No.4, Kamal Apartment,Nirantar Baugh, Pundliknagar road,Aurangabad. … Applicant… Versus …1The State of Maharashtra2Ravi Baburao Gaikwad,Age 42 yrs., Occ. Labour,R/o House No.E-30/9,Buddhabhushan Sambhaji Colony,N-7, CIDCO, Aurangabad,Tq. & Dist. Aurangabad. At Present r/o Daulatabad,Dist. Aurangabad. … Respondents...Mr. S.S. Varma, Advocate h/f Mr. S.S. Ladda, Advocate for applicantMr. S.A. Gaikwad, APP for respondent No.1Mr. P.B. Waghmare, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.RESERVED ON :03rd FEBRUARY, 2025PRONOUNCED ON :05th MARCH, 2025 2Cri.Appln_4026_2019ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed initially for quashing FirstInformation Report vide Crime No.89/2019 dated 14.08.2019 registered withPolice Station, Daulatabad, Dist. Aurangabad and by way of amendment forquashing proceedings in Special Case No.52/2020 pending before learnedSpecial Judge, under the S.C. & S.T. Act, Aurangabad, for the offencepunishable under Sections 298, 505, 505(2), 506, 507 of the Indian PenalCode and under Section 3(1)(u), (v) of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act, 1989 (for the sake of brevityhereinafter referred to as “the Atrocities Act”). 2Heard learned Advocate Mr. S.S. Varma holding for learnedAdvocate Mr. S.S. Ladda for applicant, learned APP Mr. S.A. Gaikwad forrespondent No.1 and learned Advocate Mr. P.B. Waghmare for respondentNo.2. 3Learned Advocate for applicant has taken us through FirstInformation Report and entire charge sheet. The main contention at theinitial stage before the amendment was that in First Information Reportrespondent No.2 has given his caste/religion as ‘Navbauddha’ and for thatpurpose he has annexed the list of Castes and Tribes in Maharashtra that is as 3Cri.Appln_4026_2019per the constitutional amendment and submits that there is no such religionor caste which has been held to be a scheduled caste or scheduled tribe and,therefore, the offence was initially not registered under the Atrocities Act andlater on during the course of investigation a supplementary statement ofinformant has been recorded on 18.10.2019, wherein he has stated that as hehad no caste certificate at the time of lodging of First Information Report, hehad mentioned as ‘Navbauddha’, but, now, he has certificate issued by SubDivisional Officer, Collector Office, Aurangabad, which shows that he is amember of a Scheduled Caste and, therefore, he has produced it. Thereupon,sections from the Atrocities Act have been added. Thus, there is totalsuppression of facts when the First Information Report was lodged. Therewas no question of addition of sections under the Atrocities Act after theregistration of First Information Report. 4Learned Advocate for applicant further submits that in FirstInformation Report itself it is clarified by informant himself that after he sawthe procession on the occasion of Lord Parshuram Jayanti on 08.05.2019, hehad given some post on his Facebook and WhatsApp. He states that it washis personal opinion, to which he received good as well as bad comments.That means, he had instigated the other persons to react. The alleged phonecall from the cell number on his mobile was received around 11.04 p.m. on 4Cri.Appln_4026_201909.05.2019. It was in relation to his Facebook post and then according tohim, abuses were given and then he says that there is defamation of Dr.Babasaheb Ambedkar in whatever was the dialogue from the said caller. Thesaid caller was not known to respondent No.2. He has given only cellnumber and, therefore, First Information Report was also against the callerfrom that cell number. Now, in the investigation the prosecution is relying onthe statement of father of present applicant, who has stated that presentapplicant is using two sim cards and one is the said number from which theinformant alleged to have received phone call. Similar is the statement ofother two persons i.e. witness Sachin Shelke and Shashank Jaiswal, who arestated to be the friends of applicant. Call records are not fetched and serviceprovider shows that said number/sim card number is in the name of oneVinayak Sudarshan. There is no statement of said Vinayak Sudarshan. Now,police also want to rely on a consent letter signed by applicant stating that hehad given a phone call to informant and, therefore, then his voice sample hasbeen taken. Before the report of Voice Analyst is received, the charge sheet isfiled. The said consent letter cannot be used as confession. Therefore, thecharge sheet which is filed without proper evidence needs to be quashed andset aside. Even in charge sheet the transcripts have been given and perusal ofthose transcripts or conversations would show that applicant has not shownany disrespect to late leader Dr. Babasaheb Ambedkar. It was against the 5Cri.Appln_4026_2019informant who was then taking disadvantage of his caste and makingallegations and comments against other religion or caste. The documentswhich have been taken under Right to Information Act from police wouldshow that show cause notice was issued against informant on 05.06.2019and then by order dated 21.02.2019 the appropriate authority had externedhim for two years from entire district of Aurangabad and Jalna. Thearrogance and terror of informant can be seen from contents of FirstInformation Report, those are lodged against him. Informant is involved in1) Crime No.569/2017 registered with Kranti Chowk Police Station, for theoffence punishable under Section 143, 147, 148, 149, 341, 342 of the IndianPenal Code and under Section 135 of the Maharashtra Police Act, 2) CrimeNo.2/2018 registered with CIDCO Police Station, for the offence punishableunder Sections 307, 326, 427, 332, 143, 147, 148, 149 of the Indian PenalCode, under Sections 3 & 4 of the Damage to Public Property Act and underSection 135 of the Maharashtra Police Act and 3) Crime No.209/2018registered with CIDCO Police Station, for the offence punishable underSections 353, 332, 506 read with Section 7 of Criminal Law (Amendment)Act. There was no intention to disrespect any leader of any caste; even if it isheld that said phone call was given by applicant and, therefore, it would beunjust to ask him to face the trial. 6Cri.Appln_4026_20195Per contra, learned APP as well as learned Advocate representingrespondent No.2 strongly opposed the application and submit that there issufficient evidence against present applicant. He has stated that he had givensaid call to informant. Informant has recorded the said call. The transcriptof same has been provided which would show that he has used abusivelanguage and shown disrespect to Dr. Babasaheb Ambedkar. The connectionbetween said mobile number and accused has been established whenstatements of witnesses have been recorded. Two of them are friends ofapplicant and other is his father. He has also accepted in the ‘Sammatipatra’that he had made conversation with informant. The voice recording report isstill with Forensic Science Laboratory and it would be submitted before theTrial Court in due time. So also, the Subscriber Details Record (SDR), CallDetail Record (CDR) has been recovered, but the certificate under Section 65-B of the Indian Evidence Act was not appended and, therefore,communication has been made. After it is received, that can be placed onrecord before the concerned Court. Taking into consideration the CDS issueinvolved, this cannot be taken as a fit case where First Information Reportand proceedings can be quashed and set aside. 6Taking into consideration the scope of Section 482 of the Code ofCriminal Procedure, we are considering the material and also in view of 7Cri.Appln_4026_2019recent decision of Hon’ble Apex Court in B.V. Ram Kumar vs. State ofTelangana and another in Criminal Appeal No. ….. of 2025 (arising out ofSLP (Cri.) No.7887 of 2024 decided on 10.02.2025 wherein it has beenobserved that - “14.The position of law is well settled by catena of judgments ofthis Court that in order to entertain a challenge to the FIR, chargesheet or an order taking cognizance, all that has to be seen is,whether from a bare reading of the charge sheet, the ingredients ofthe sections charged therein are being prima facie made out or not.Reference in this regard may be made to the judgment of this Court inState of Haryana v. Bhajan Lal [[1992 Supp (1) SCC 335] wherein itwas held that : “102. In the backdrop of the interpretation of the various relevantprovisions of the Code under Chapter XIV and of the principles of lawenunciated by this Court in a series of decisions relating to theexercise of the extraordinary power under Article 226 or the inherentpowers under Section 482 of the Code which we have extracted andreproduced above, we give the following categories of cases by way ofillustration wherein such power could be exercised either to preventabuse of the process of any court or otherwise to secure the ends ofjustice, though it may not be possible to lay down any precise, clearlydefined and sufficiently channelised and inflexible guidelines or rigidformulae and to give an exhaustive list of myriad kinds of caseswherein such power should be exercised. (1)Where the allegations made in the first information report orthe complaint, even if they are taken at their face value and acceptedin their entirety do not prima facie constitute any offence or make outa case against the accused.(2)Where the allegations in the first information report and othermaterials, if any, accompanying the FIR do not disclose a cognizable 8Cri.Appln_4026_2019offence, justifying an investigation by police officers under Section156(1) of the Code except under an order of a Magistrate within thepurview of Section 155(2) of the Code.(3)Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the same do notdisclose the commission of any offence and make out a case againstthe accused.(4)Where, the allegations in the FIR do not constitute acognizable offence but constitute only a non-cognizable offence, noinvestigation is permitted by a police officer without an order of aMagistrate as contemplated under Section 155(2) of the Code.(5)Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which no prudentperson can ever reach a just conclusion that there is sufficient groundfor proceeding against the accused.(6)Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under which a criminalproceeding is instituted) to the institution and continuance of theproceedings and/or where there is a specific provision in the Code orthe concerned Act, providing efficacious redress for the grievance ofthe aggrieved party.(7)Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with anulterior motive for wreaking vengeance on the accused and with aview to spite him due to private and personal grudge.”(emphasis supplied)Thus, it is trite that the constitutional courts are whollycompetent to exercise their extraordinary power to quash the criminalproceedings to prevent abuse of the process of the Court or otherwiseto secure the ends of the justice if the allegations in the FIR orcomplaint neither disclose the commission of any offence nor makeout a prima facie case against the accused. 9Cri.Appln_4026_20197Since in this case the charge sheet is filed, we will have toconsider the entire material in the charge sheet also to see whether theoffences under which First Information Report and charge sheet is filed areprima facie made out or not. As regards offence under Section 505 or 505(2)of the Indian Penal Code is concerned, we will have to read Section 196 ofthe Code of Criminal Procedure together with the same. Section 196(1A) of the Code of Criminal Procedure prescribesthat - “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 the Indian Penal Code…………………..Except with the previous sanction of the Central Government or of theState Government or of the District Magistrate.”Therefore, for prosecuting a person for the offence punishableunder Section 505 or 505(2) of the Indian Penal Code there should be acompliance of Section 196(1A) of the Code of Criminal Procedure. In chargesheet, there is a letter dated 16.10.2019 given by Investigating Officer toCollector, Aurangabad. Perusal of the same would show that it is only theinformation and not for according sanction as contemplated under Section196(1A)(a) of the Code of Criminal Procedure, for the offence punishable 10Cri.Appln_4026_2019under Section 505(2) of the Indian Penal Code. It ought to have beenaddressed to ‘District Magistrate’ and not as ‘Collector’, even if the said postsare held by the same person. However, even after taking note of that letterdated 16.10.2019, which was received by Collector’s office, no previoussanction has been given. Neither there is previous sanction from CentralGovernment nor from the State Government nor from District Magistratealso. The charge sheet has been filed on 07.01.2020. We are unable to getthe date of taking cognizance by Special Judge, under the Atrocities Act, but,certainly, when special case has been registered in 2020, the concerned Courtought not to have delayed the act of taking cognizance till the date we heardthe matter. The legal bar appears to have not been taken into considerationby the concerned Judge. 8Further, as regards offence under Section 505(2) of the IndianPenal Code the requirement is that the person should make, publish orcirculate any statement or report containing rumour or alarming news withintent to create or promote on the ground of religion, race etc., feelings ofenmity, hatred or ill-will between different religious, racial, language orregional groups or castes. Here, the conversation is on telephone. Though itis stated to have been made by a person; yet, except the informant nobodyelse had heard it. Therefore, the conversation qua informant, which cannot 11Cri.Appln_4026_2019be covered under the ingredients of Section 505 or 505(2) of the IndianPenal Code. 9For proving an offence under Section 298 of the Indian PenalCode the prosecution will have to prove that the accused with the deliberateintention of wounding the religious feelings of any person, utters any word ormakes any sound in the hearing of that person or makes any gestures in theside of that person, would then be punishable under the said section.Together with this section, then we will have to consider Section 3 (1)(u) ofthe Atrocities Act, which punishes a person, who by words either written orspoken or by signs or by visible representation or otherwise promotes orattempts to promote feelings of enmity, hatred or ill-will against members ofthe Scheduled Castes or the Scheduled Tribes; and for offence under Section3(1)(v) of the Atrocities Act the accused had by words either written orspoken or by any other means disrespects any late person held in high esteemby members of the Scheduled Castes or the Scheduled Tribes. Thus, takinginto consideration the ingredients of Section 298 of the Indian Penal Codeand Section 3(1)(u) of the Atrocities Act the ingredients are almost similar.For this purpose, contents of First Information Report and prosecution story isthat the words have been used which will show disrespect to the religiousfeelings of informant or those were uttered to promote feelings of enmity, 12Cri.Appln_4026_2019hatred or ill-will against him. In First Information Report the informant hasstated that he had given the post on Facebook as well as on WhatsApp, afterhe had seen the procession on account of Parshuram Jayanti on 08.05.2019.In the charge sheet, copy of the said post has been annexed. Certainly, wewill have to take note of it in view of the admitted fact. The said post wasagainst Brahmins. It was then stated that the said procession was to supportterrorist activities of Brahmin community and even the post then makesallegations against the Brahmin community and at the end it is stated that ifsuch persons are not stopped, then the security of the Indian Constitution isin danger. Obviously, it can be clearly seen that he had made allegationsagainst another community/caste. Then what was the reaction from otherpersons ought to have contemplated by him or apprehended before he couldplace the post. He cannot justify his post or act of posting by saying that itwas his personal opinion. He himself has stated in First Information Reportthat he received good as well as bad comments. What were those badcomments has not been explained by him and it appears that he has takenaction against the person who had called from a particular number. Now, asregards caller from that particular number is concerned, was obviously notknown to him and the call was stated to have been received by him at 11.04p.m. Of course, taking into consideration the responses he was receivingwhen it was a call from unknown person, it appears that he has recorded the