SHALIBHADRA SHAH Vs. SWAMI KRISHAN BHARTI

JUDGEMENT

(1.) The petitioner in both these applications is the editor printer and publisher of a Gujarati Weekly AASPASS. In the issue of 31 July 1977 of his Weekly an article appeared under the caption Why Acharya Rajnishji leaves Pune ? which contained remarks concerning the said religious leader which are stated to be of a scurrilous and defamatory nature Respondent No. 1 in both the petitions are the devotees of the said Acharya Rajnishji whom they worship as Bhagwan (God). Respondent No. 1 of Miscellaneous Criminal Application No. 786 of 1978 filed a private complaint in the Court of the learned Judicial Magistrate First Class Karjan alleging that the petitioner had by publishing the said article in his Weekly committed offences punishable under secs. 295A and 298 of the Indian Penal Code. Respondent No. 1 of the other Miscellaneous Criminal Application filed a similar complaint No. 425 of 1978 in the Court of the learned Judicial Magistrate First Class Baroda (Fourth Court) alleging that the petitioner had committed offences punishable under secs. 295A and 298 of the Indian Penal Code. The learned Magistrates before whom these two complaints were filed issued process against the petitioner of the present two applications for the commission of offences punishable under the aforesaid two provisions of the Indian Penal Code. The petitioner has therefore filed the present two petitions for quashing the process issued against him in the aforesaid two Criminal proceedings. The process is sought to be quashed on two grounds namely (1) that the prosecution for the offence under sec. 295-A of the Indian Penal Code could not be commenced without a prior sanction from the Government under sec. 196(i) of the Code of Criminal Procedure 1973 and (2) that the prosecution in respect of the offence under sec. 298 of the Indian Penal Code is bad in law inasmuch as it does not apply to any written article appearing in a Weekly but merely applies to wounding of religious feelings by utterance of oral words making of any sound in the hearing of that person making a gesture in the sight of that person or placing any object in the sight of that person. We will deal with these two submissions made by the petitioner in the order in which we have set them out.

(2.) Sec. 295-A of the Indian Penal Code lays down that whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words either spoken or written insults or attempts to insult the religion or religious beliefs of that class shall be punished with imprisonment upto two years or fine or both. Sec. 196 (1) of the Code of Criminal Procedure inter alia provides that no Court shall take cognizance of any offence punishable under sec. 295-A of the Indian Penal Code except with the previous sanction of the Central Government or of the State Government. Obviously therefore under sub-sec. (1) of sec. 196 in the absence of a sanction from the concerned Government no Court can take cognizance of an offence punishable under sec. 295-A of the Indian Penal Code. It is therefore obligatory on a person who proposes to move the criminal law under sec. 295-A of the Indian Penal Code to obtain the necessary sanction from the concerned Government before doing so. The obtaining of a sanction is therefore a sine qua non and no Magistrate can take cognizance of a complaint under sec. 295-A of the Indian Penal Code unless the order granting sanction is produced. In these two cases as it is common ground that no such prior sanction of the concerned Government was obtained the learned Magistrates were not entitled to take cognizance of the offence punishable under sec. 295-A of the Indian Penal Code.

(3.) Mr. H. M. Mehta the learned advocate appearing on behalf of respondent No. 1 in both the applications however contended that sub-sec. (1) of sec. 196 of the Code of Criminal Procedure which makes it imperative for a person who desires to move the criminal law under sec. 295A of the Indian Penal Code to obtain prior sanction of the concerned Government is unconstitutional as it violates Art. 14 inasmuch as it permits arbitrary discrimination between complainants who complain of the commission of an offence under sec. 295-A of the Indian Penal Code and the other complainants who complain about the commission of an offence under sec. 298 of the Indian Penal Code. In the first place it is necessary to bear in mind that the offence punishable under sec. 295-A of the Indian Penal Code is far more serious than the offence punishable under sec. 298. Under sec. 298 whoever with the deliberate intention of wounding the religious feelings of any person utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person is liable to be punished with imprisonment of either description for a term which may extend to one year or with fine or with both. The section speaks of the deliberate intention of wounding the. religious feelings of any person whereas sec. 295-A speaks of deliberate and malicious intention of outraging the religious feelings of any class of citizens of India. The use of the word wounding and the use of the word outraging also shows that the offence under sec. 295-A is far more serious than the offence punishable under sec. 298 of the Indian Penal Code and this becomes further clear if we bear in mind the punishment provided for the commission of the said two offences. Therefore there can be little doubt that those who complain of the commission of the offence punishable under sec. 298 stand on a different footing from those who complain of the commission of an offence under sec. 295-A of the Indian Penal Code. It is therefore difficult to understand the contention of the learned advocate that sec. 196(1) of the Code of Criminal Procedure discriminates between complainants who complain about an offence punishable under sec. 295-A by imposing a fetter on their right to move the criminal law by providing that previous sanction of the concerned Government shall be a sine qua non to the Court taking cognizance of an offence alleged to have been committed under the said provision and those complainants who complain about the commission of an offence punishable under sec. 298 of the Indian Penal Code.