Swararaj @ Raj Shrikant Thakeray & Anr. v. State & Anr.

Delhi High Court · 2023:DHC:2758

Jasmeet Singh

CRL.M.C. 2972/2013

2023:DHC:2758

criminal appeal_allowed Significant

AI Summary

The Delhi High Court quashed the summoning orders for lack of mandatory inquiry and prior sanction but refused to quash the criminal complaint alleging provocative speech hurting religious sentiments.

Full Text

CRL.M.C. 2972/2013
HIGH COURT OF DELHI
CRL.M.C. 2972/2013, CRL.M.A. Nos. 11255/2013 & 33687/2018
SWARARAJ @ RAJ SHRIKANT THAKERAY & ANR. ..... Petitioners
Through: Mr Arunabh Chowdhary, Sr. Adv. with Mr Ashutosh Dubey, Mr SayajiNangre, Mr Abhishek Chauhan, Mr Vaibhav
Tomar, Mr Amit P Shahi and Mr Karma Dorjee, Advs.

VERSUS

STATE & ANR. ..... Respondent
Through: Ms Rupali Bandhopadhya, ASC for State with Mr Akshay Kumar and Mr Abhijeet
Kumar, Advs.

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH : JASMEET SINGH, J (ORAL)

JUDGMENT

1. This is a petition seeking quashing of proceedings in Complaint Case NO. 12/2A/13 (C.A. NO. 946 of 2008) pending before learned ACMM (Special Acts), Tis Hazari Courts, Delhi as well as quashing the summoning order dated 04.12.2008 and 03.01.2009 passed by learned Magistrate, Patna City in C.A. 946 of 2008 summoning the petitioners under Sections 124A/153A/153B/295A/506/114 IPC.

2. The petitioner also seeks setting aside/quashing of the Order dated 26.07.2013passed by the Ld. Additional Chief Metropolitan Magistrate (Special Acts) in Criminal Complaint No. 12/2A/13 (arising out of C.A. No. 946 of 2008).

3. Though the complaint in the present case was filed in Patna city, the Hon’ble Supreme Court vide order dated 08.01.2010 transferred the proceedings to the competent Criminal Court, Tis Hazari, Delhi. Since the complainant/respondent No.2 neither appeared before the trial Court nor has heappeared in the present proceedings, vide order dated 22.09.2022 the complainant/respondent No.2 was proceeded ex parte, by this court.

4. As per the complaint it is stated that the petitioner had made some comments with regard to a particular festival. (I have intentionally refrained from naming the festival and the State). It is stated in the complaint that because of the comments made by the petitioner the religious sentiments of the complainant and the people of the respective state have been hurt. It is further stated that the alleged speech was shown across news channels. It is stated that the speech was provocative in nature and caused hurt to religious feelings. It is also stated in the complaint that the speechof the petitioner was against the basic structure of the constitution which amounted to sedition as it has affected the unity and integrity of India and as a result of the speech of the petitioner, one PawanKumarwas killed while he was going to Mumbai to appear in a competitive exam.

5. At the outset, learned senior counsel for the petitioner on petitioner’s instructions and for and on his behalf has stated that the petitioner has not made any inflammatory provocative speech as alleged in the complaint. It is further stated that the alleged speech seems to have been distorted. Assuming without admitting that the speech was made and if it has caused any inadvertent and unintentional hurt to any religious sentiments of any person orcommunity, the petitioner tenders his unconditional apology and expresses regret and sadness for the same. The statement of the counsel for the petitioner made for and on behalf of the petitioneris taken on record.

6. Without prejudice to the above, Mr. Chowdhary, learned senior counsel has challenged the summoning order in two parts. Regarding the part of summoning order u/s 506/114, it is stated that the sameis in violation of section 202 Cr.P.C and as regards part of the summoning order u/s124A/153A/153B/295A it is stated that the same is in violation of section ARORA 196Cr.P.C. Summoning Under section 506/114 IPC being in violation of section 202 Cr.P.C.

7. Mr Chowdhary, learned senior counsel has submitted that as regards summoning the petitioner under Section 506/114 IPC is concerned, the same is in violation of section 202 Cr.P.C. He states that admittedly the petitioner was outside the territorial jurisdiction of the Magistrate. The Magistrate was exercising jurisdiction within Patna city while the Petitioner is a resident of Mumbai. Hence the summoning order u/s 506/114 IPC is in violation of section 202 Cr.P.C.

8. Section 202 Cr.P.C reads as under: Postponement of issue of Process (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he ARORA thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. (emphasis supplied)

9. Mr Chowdhary has drawn my attention to the judgment of Hon’ble Supreme Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar,(2017) 3 SCC 528:

25. For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. This requirement is emphasised by this Court in a recent judgment Mehmood Ul Rehman v. Khazir Mohammad Tunda [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420: (2016) 1 SCC (Cri) 124] in the following words: (SCC pp. 429-30, paras 20 & 22)

“20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements

ARORA recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter. ***

22. The steps taken by the Magistrate under Section 190(1)(a) Cr.P.C. followed by Section 204 Cr.P.C. should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section ARORA 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C., the High Court under Section 482 Cr.P.C. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”

26. The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. What kind of “enquiry” is needed under this provision has also been explained in Vijay Dhanukacase [Vijay Dhanuka v. NajimaMamtaj, (2014) 14 SCC 638: (2015) 1 SCC (Cri) 479], which is reproduced hereunder: (SCC p. 645, para

14)

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“14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word “inquiry” has been defined under Section 2(g) of the Code, the same reads as follows: „2. (g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;‟ It is evident from the aforesaid provision, every inquiry other

ARORA than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.”

27. When we peruse the summoning order, we find that it does not reflect any such inquiry. No doubt, the order mentioned that the learned Magistrate had passed the same after reading the complaint, verification statement of the complainant and after perusing the copies of documents filed on record i.e. FIR translation of the complaint, affidavit of advocate who had translated the FIR into English, etc. the operative portion reads as under: “On considering facts on record, it appears that complainant has made out prima facie case against the accused for, the offences punishable under Sections 500, 501, 502 read with Section 34 of the Penal Code. Hence, issue process against the accused for the above offences returnable on 23-12-2009. Case be registered as summary case.”

28. Insofar as these two accused persons are concerned, there is no enquiry of the nature enumerated in Section 202 Cr.PC.”

10. In the present case there has been no inquiry conducted by the learned Magistrate before proceeding to issue summons. As held by the Hon’ble Supreme Court conducting inquiry is not an empty formality but the same is a ARORA mandate of law.The purpose of an inquiry as contemplated under Section 202 Cr.P.C. has also been highlighted by the Hon’ble Supreme Court in Abhijit Pawar(supra) 23..There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment.

11. Hence in the absence of inquiry, the summoning of the petitioner u/s 506/ 114 IPC, cannot be sustained. Summoning u/s 124-A 153A, 153B, and 295A in violation of Section 196 Cr.P.C.

12. It is argued by Mr Chowdhary, learned senior counsel appearing for the petitioner that in the present case there is also non-compliance of Section 196 Cr.P.C. The learned senior counsel for the petitioner argues that there is no previous sanction by the Central Government/State Government as contemplated under Section 196 Cr.P.C.

13. Section 196 Cr,P.C reads as under:

196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.— (1) No Court shall take cognizance of— (a) any offence punishable under Chapter VI or under section 153A, [section 295A or sub-section (1) of section 505] 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 ARORA of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State 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 the Indian Penal Code (45 of 1860), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.] (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit [an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary. (3) The Central Government or the State Government may, before according sanction [under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section

155.

14. In the present case, since prior sanction is required of the Centre or a State Government for initiating proceedingsunder Section 124-A, 153-A/153- ARORA B/295A IPC and admittedly no such sanction has been taken, the summoning order,according to me is liable to be quashed. Reliance has correctly been placed on the judgment passed by a Coordinate Bench of this Court in RAGHURAJ SINGH &ORS.v. STATE OF NCT OF DELHI & ANR., CRL. M.C. Nos. 4623 and CRL M.C.4859-71 of 2005, decided on 05.02.2008 and more particularly to para 10 which reads as under:

“10. Having considered the materials on record and the submissions of learned counsel for the parties, this Court finds that the complaint and the impugned summoning order call for interference only with regard to the offence under Section 153A IPC. There can be no manner of doubt that Section 196 (1)(a) Cr.P.C. mandates the prior sanction of the Central Government for proceeding to prosecute the accused for that offence. In this case admittedly such sanction was not obtained. Therefore there is no difficulty in quashing the summoning order as regards the offence under Section 153A IPC is concerned.”

15. Similar view has been taken in the case of Swaraj v. State, 2015 SCC OnLine Del 11986 decided on 10.09.2015 by a Coordinate Bench of this Court.

16. Hence the part of the summoningorder,summoning the petitioner under Sections 124-A 153A, 153B, and295A cannot be sustained. In view of my findings hereinabove, the impugned orders dated 4.12.2008 and03.01.2009 against the petitioner are quashed.

17. As regards the prayer for quashing of the complaint is concerned, the law has been settled by the Hon’ble Supreme court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article

ARORA 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no ARORA prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

18. Hence,as far as the quashing of the complaint is concerned, I am of the view that the same is not covered under any of the parameters enumeratedby Bhajan Lal (supra).The reliance of the ld counsel on the judgment titled Salman Kurshid v. State of U.P. &Anr. (2023) SCC Online 7452 is misconceived. The petitioner in that case had made certain remarks against an individual whereas in present case the remarks have been made against a certain community as well as a State.In addition, the alleged impugned statements of the petitioner are also not before this court. Hence the prayer for quashing of the criminal complaint is ARORA rejected.

19. Having observed the above, I am of the view that India is a country which is unique due to various religions, faiths and languages which co exist with side by side. Its unity lies in this coexistence.Religious feelings and religious sentiments cannot be so fragile as to be hurt or provoked by a speech of an individual. Religion and faith are not as fragile as human beings. They have survived for centuries and will survive for many more. Faith and religion are more resilient and cannot be hurt or provoked by views of / instigation by,an individual.

20. In this view of the matter, the petition is partly allowed with regard to summoning order dated 04.12.2008 passed by learned Magistrate, Patna City in C.A. 946 of 2008 summoning the petitioners under Sections 124A/153A/153B/295A/506/114 IPC. Consequently, the issuance of bailable warrants vide order 03.01.2009 and NBWs vide order dated the order dated 26.07.2013 passed by the Ld. Additional Chief Metropolitan Magistrate (Special Acts) in Criminal Complaint No. 12/2A/13 (arising out of C.A. NO. 946 of 2008) are also hereby quashed. The prayer for quashing of the criminal complaint is rejected.

21. The petition, along with applications, if any, is disposed of.

Swararaj @ Raj Shrikant Thakeray & Anr. v. State & Anr.

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