Sri Vishwa Nath v. Sri Yogendra Nath Tripathi

V.K. KHANNA, J.

(1.) This is a petition under section 482 Cr.P.C. for quashing criminal proceedings initiated against the applicant under sections 153-A, 292, 295-A and 500 I.P.C. an the complaint moved by the opposite party No. 1 Sri Yogendra Nath Tripathi.

(2.) Brief facts for the purposes of deciding the present application are that the applicant Vishwa Nath is the editor, and publisher of monthly Hindi Magazine BHOO BHARATI. In December (1st) 1980 part, one article under the caption PILOT BABA PUR KHANDESWARI BABA KAND was published in this Magazine. On 22-12-1980 the opposite party No. 1 filed a complaint under sections 292, 295, 295-A, 500, 501 and 153-A I.P.C. against the applicant on the ground that behind the publication of the article the intention of the applicant was against the Hindu religion and lowering the prestige of khandeshwari Maharaj and Pilot Baba and their followers. According to the complaint the article has also created an atmosphere against the religion in the society and thus by publication of the Article the complainant and other persons have been defamed.

(3.) The Special Judicial Magistrate, after examining the witnesses under section 200 Cr.P.C. summoned the applicant on 11-12-1980 under sections 153-A, 292, 29S-A and 500 I.P.C.

(4.) Learned counsel appearing for the applicant has firstly urged that the Magistrate could not take cognizance of the offences under sections 295-a and 253-a without there being a sanction under section 196(1) Cr.P.C. either from the Central Government or from the State Government.

(5.) It may be stated that in this case it has not been disputed before me that there is no previous sanction of the Central Government or of the State Government for prosecuting the applicant under sections 153-a and 295-a. The relevant part of section 196(1)(a) reads as follows: p196 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 153-A, section 153-B section 295-A or section 505 of the Indian Penal Code (45 of 1860) or (b) (c) Except with the previous sanction of the Central Government or of the State Government. There can not be, therefore an iota of doubt that the Magistrate could not take cognizance of the offences under sections 153-A and 295-A of the Indian Penal Code against the applicant as there was no previous sanction of the Central Government or of the State Government. The accused could thus not be summoned under those sections by the Magistrate.

(6.) Regarding the summoning of the accused under section 292 I.P.C. It has been urged by the learned counsel for the applicant that the aforesaid section had absolutely no application in the present case as the sale of the magazine containing the article could not be termed as sale etc. of obscene books as defined under section 297 I.P.C. Reliance has been placed on the decision of the Supreme Court reported in the case of Ranjit D. Udeshi v. State Of Maharashtra . part of section 292 I P.C. reads as follows: p292 SALE ETC. OF OBSCENE BOOKS ETC (1) For the purposes of sub-section (2), a book pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to be prurient interest or if its effect or (where it comprises to or more distinct items) the effect of anyone of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances: to read, see or hear the matter contained or embodied in it). The pertinent question which has to be decided in this connection is as to whether the magazine containing the article can be termed to be obscene under section 292 I.P.C. The Supreme Court in the case of Ranjit D. Udeshi (supra) had the occasion of interpreting the word obscene as occurring in section 292 I.P.C. in the aforesaid case it was held. Cockburn C.J. laid down the test of obscenity in these words: I think the test of obscenity is this whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall it is quite certain that it would suggest to the minds of the young of either sex, or even to person of more advanced years, thoughts of a most impure and libidinous character. This test has been uniformly applied in India. In our opinion, the tend to adopt in our country regard being had to our community mores is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression and obscenity is treating with sex a manner appealing to the carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case. The entire reading of the article as extracted in the complaint and also the entire article which has been placed before me from the magazine itself, in my opinion, cannot be termed to be obscene as it does not treat with sex in any manner so as to appeal to the carnal side of the human nature or having that tendency. The article has absolutely no connection with sex and thus the applicant could not be said to have committed an offence under section 292 I.P.C. even if all the allegations made in the complaint are taken to be correct. The accused thus could not be summoned under section 292 I.P.C.

(7.) Accused has also been summoned under section 295 I.P.C. In that connection the learned counsel for the applicant has submitted that from the entire reading of the Article it could not be said that it either destroys, damages or defines any place of worship or any object held sacred by any class of persons with the intention thereby insulting the religion of any class of persons. Reliance has been placed on a decision of the Madras High Court reported in A. Veerabhadran Chettiar v. E. V. Ramaswami Naicker and others2.

(8.) Learned counsel appearing for the opposite party has, however, placed reliance on a decision of the Supreme Court reported in Veerabhadran Chettiar v. E.V. Ramaswami Naicker and others (supra). Section 295 of the Indian Penal Code reads as follows p295 INJURING OR DEFILING PLACE OF WORSHIP WITH INTENT TO INSULT THE RELIGION OF ANY CLASS: Whoever destroys, damages, or defiles any place of worship of any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damages or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Supreme Court in the case of S. Veerabhadran Chettiar (supra) had the occasion to consider the import of section 295 I.P.C. it was held: Any object however, trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the Penal section... The section has been intended to respect the religious susceptibilites of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs or whether they are rational or otherwise, in the opinion of the court. The crucial question which thus falls for determination is whether by publishing the article any place of worship of any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons has either been destroyed, damages or defiled. A reading of the entire article only shows that in the Article the deeds of only pilot Baba and Khandeshwari Baba have been exposed. Neither pilot nor Khandeshwari Baba can by any stretch of imagination be called a place of worship. It has only to be considered as to whether they are objects which are held sacred by any class of persons and the Article has been published with an intention of insulting the religion of any class of persons. It is neither said in the complaint nor has come out in the evidence given by the complainant and his witnesses that either Pilot Baba or Khandeshwari Baba are propogators of any defined religion in this country. Pilot Baba and Khandeshwari Baba according to the complaint could only be termed as Babas or sadhus who came to have some mystic powers. It cannot be said that in case an article is published regarding some Baba claiming to have mystic powers that he does not have that mystic power, would result in insulting the religion of any class of persons. In my opinion the ingredients of section 295 I.P.C. are not attracted to the present case and thus the accused could not have been summoned for having committed the offence under section 295 I.P.C.

(9.) The last section under which the accused has been summoned is section 500 I.P.C. learned counsel appearing for the applicant has urged that the complainant was not a person aggrieved as defined under section 199 Cr.P.C. and thus was not entitled to maintain the complaint under section 500 I.P.C. Reliance has been placed on a decision of the Delhi High Court reported in Ganesh Nand Chela v. Swami Divyanand3. Learned counsel appearing for the opposite party has placed reliance on a decision of this court reported in the case of Tek Chand Gupta v. R.K. Karanjia and others4. In the case of Ganesh Nand Chela (supra) it was held: The defamatory allegations, even according to the learned trial court, are that Swami Purnand Ji Maharaj, who was a spiritual head of the Ashram, was leading an immoral life. The said Swami Purnand Ji Maharaj, according to the complainants own showing, owns property, namely, four Ashrams one at Delhi and the others at Haridwar; and Ahmedabad. It is nowhere stated that he has renounced this world. There is no explanation as to why the Guru or the lady with whom he is alleged to have illicit relations, cannot file the complaint. The maximum that one can say about the complainant is that he has a grievance about his Guru being defamed. But that grievance which the other members of the Ashram must also be sharing, cannot make him the aggrieved person within the meaning of sub-section (I) of section I 99 of the Code. As far as the case relied upon by the learned counsel appearing for the opposite party, i.e. the case of Tek Chand Gupta (supra), in my opinion, the same can not help the opposite party inasmuch as in that case it was held that the R.S.S. is a definite and identifiable class or body within the meaning of Explanation (2) of section 499 and a complaint by a member of R.S.S. under section 500 as to the alleged scandalour remark about the sangh is maintainable.

(10.) As far as the present case is concerned, the article only high-lights the alleged deeds of pilot Bab and khandesari Bab. As has been stated above it is not the case that there is any sect or organisation which was being run by either pilot Bab or khandesari Bab. The so called desciplies of pilot Bab arid khandesari Baba are neither definite nor identifiable calls and thus the explanation (2) to section 499 I.P.C. would not help the complainant. As has been held by the Delhi High Court in the case of Ganesh Nand Chela (supra) the maximum that one can say after reading the article is that the complainant had a grievance about his Guru being defamed. In my opinion, that can hardly make the complainant person aggrieved within the meaning of section 199(1) of the Code. The complaint, therefore, under section 500 I.P.C. could not be filed by the complainant. For the reasons stated above, the present application is allowed. The criminal proceedings launched against the applicant in Criminal Case No. 4633 of 1980 are quashed. Application allowed.