In two criminal writ petitions and one disposed as infructuous, the High Court dismissed WPMS challenging FIRs for religious disharmony offences. The court rejected limitations arguments and republished inciting material as not reproducible.
FIRs not quashed. Rule discharged. Interim relief vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
( 1 )
crwp1063.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1063CRIMINAL WRIT PETITION NO. 1121CRIMINAL WRIT PETITION NO. 195* * * * *CRIMINAL WRIT PETITION NO. 1063 |
OFOFOFOF |
2009200920102009 |
|
|---|---|---|---|
1. |
Chandrashekar s/o. Govind BehereAge. 62 years, Occ. Business,R/o. Behere Chowk,Matoshri Radha Sankul,Mehta Road, Nandurbar,Dist. Nandurbar. |
.. |
Petitioners |
2. |
Kaushubh s/o. Chandrashekar BehereAge. 42 years, Occ. Business,R/o. Behere Chowk,Matoshri Radha Sankul,Mehta Road, Nandurbar,Dist. Nandurbar.Versus |
||
1. |
State of Maharashtra |
.. |
Respondents |
2. |
Police InspectorNandurbar City Police Station,Nandurbar.WITHCRIMINAL WRIT PETITION NO. 1121 |
OF |
2009 |
1. |
Chandrashekar s/o. Govind BehereAge. 62 years, Occ. Business,R/o. Behere Chowk,Matoshri Radha Sankul,Mehta Road, Nandurbar,Dist. Nandurbar. |
.. |
Petitioners |
| ( 2 ) | crwp1063.09 | |||
|---|---|---|---|---|
2. |
Kaushubh s/o. Chandrashekar BehAge. 42 years, Occ. Business,R/o. Behere Chowk,Matoshri Radha Sankul,Mehta Road, Nandurbar,Dist. Nandurbar.Versus |
ere |
||
1. |
State of Maharashtra |
.. |
Respondents |
|
2. |
Police InspectorNandurbar City Police Station,Nandurbar.WITHCRIMINAL WRIT PETITION NO. |
195 |
OF |
2009 |
ChanAge.R/o.MatoMehtDist |
drashekar s/o. Govind Behere62 years, Occ. Business,Behere Chowk,shri Radha Sankul,a Road, Nandurbar,. Nandurbar.Versus |
.. |
Petitioner |
|
1. |
State of Maharashtra |
.. |
Respondents |
|
2. |
Police InspectorNandurbar City Police Station,Nandurbar. |
|||
Mr.SMr.V |
.D. Hiwrekar, Advocate for the p.S. Badakh, A.P.P. for responden |
etitts/S |
iontat |
ers.e. |
CORAM :DATED : |
T.V.S.M.06.0 |
NALGAV9.2 |
AWADE &HANE,JJ.017 |
( 3 ) crwp1063.09
J U D G M E N T [PER : T.V. NALAWADE,J.] :-
1.During arguments, learned Counsel for petitioner
– Chandrashekar s/o. Govind Behere from Writ Petition
No.195 of 2010 submitted that the case itself is disposed
of and so the proceeding has become infructuous. Due to
this statement, Writ Petition No.195 of 2010 needs to be
disposed of as infructuous.
2.Writ Petition No.1063 of 2009 is filed by
Chandrashekar Behere and his son Kaushubh Behere for
relief of quashing of F.I.R. No.94 of 2006 registered
with Nandurbar Police Station, Nandurbar for offence
punishable under section 153 (a) (b) (c) of the Indian
Penal Code. Writ Petition No.1121 of 2009 is also filed
filed by the same petitioners and it is filed for relief
of quashing of F.I.R. No.47 of 2007 registered with
Nandurbar Police Station, Nandurbar for offence
punishable under section 153 (a) (b) (c) of the Indian
Penal Code. Both the sides are heard.
3.The petitioners are Owners and Editors of news
paper “Tapi Kath”. Learned Counsel for the petitioners
makes statement in Writ Petition No.1121 of 2009 that the
petitioners had simply republished the material which was
already published in other newspaper of one institution
Sanatan Prabhat and so it cannot be said that they have
committed aforesaid offences. In that case, the matter
published by them in their daily news-paper “Tapi Kath”
dated 23.02.2007 is involved. In Writ Petition No.1063 of
2009, the matter published by the petitioners in the same
news-paper dated 06.07.2006 is involved. In view of the
contentions made by the learned Counsel for the
petitioners in Writ Petition No.1121 of 2009 of aforesaid
nature, this Court deems it necessary to quote the
relevant portions of the publication involved in Writ
Petition No.1063 of 2009. From that matter, the mind-set
of the petitioners and their intention can be gathered.
4.In the news-paper dated 06.07.2006, the matter
was published by the petitioners of following nature:-
(i) It has become universal principal that
all the terrorists belong to Muslim community.
The persons who had attacked Akshardham temple were also Muslims.
(ii) After conviction of the accused
involved in the matter of Akshardham temple, Muslims of Ahmedabad city had observed “Bundh” and so it can be said that as per the Muslims of Ahmedabad, the persons who had attacked temples were Jihadis, fighting for their religion. Those Muslims must be feeling that the persons who were fighting against Kafirs were Jihadis.
(iii) As Muslims from Ahmedabad had
protested conviction in the aforesaid manner, there is possibility that the Muslims may take law in hand as in some instances it was noticed
that Muslims had taken law into their hands.
(iv) About two months prior to the date of publication, some construction of Dargah was pulled down as it was illegal and on that occasion also chaos was created by Muslims of that area and on that basis it can be said that Muslims are protecting the criminals.
(v) About 500 Muslims had attacked team of
police officers, who had gone to arrest the criminals and that shows that they were not abiding by law.
(vi) Due to aforesaid instance, time has
come to think seriously as to whether the persons who are taking name of religion, doing aforesaid acts, can be allowed to act against
nation. They are trying to convert the world into one of only Muslims and that is their aim. Such situation was being created in India.
(vii) Muslims are not faithful to the
country in which they are born and they believe
that land where there is rule of Islam is their
land and this thought was of Dr. Ambedkar. Due to conduct of Muslims, it can be said that there is truth in this thought.
(viii) Conduct of Muslims of not hoisting flag of this Country and rejoicing when Pakistan wins sport events also speaks about their feelings. Unfortunately, Nehru and Gandhi – Congressmen had not considered this nature of Muslims and persons who are successors of these persons cannot understand these things. If that approach continues, one day Muslims will become
a danger to the Indians and they will take country into their hand as by nature they are never faithful.
(ix) As a conclusion, the residents of this Country need to consider the aforesaid real nature of Muslims and only after that their interest will be protected.
In the news-paper dated 23.02.2007, the matter
5.
of following nature was published by the petitioners.
(i) Till the time Islam is there on earth, till the time there is Quran and there is Hadis, the Indians cannot have peace of mind. Even the world cannot have peace. This thought was expressed by the Head of Hindu Parishad Shri Satyapal Malani.
(ii) Malani had said that if Islam was religion then what was irreligious (It was sarcastic comment). Criticizing Islam Malani said that the customs of rites etc. were based
on Quran but it was not culture and it was abnormality / aberration. In Quran it is mentioned that if one dies for religion, he gets heaven, where there are 72 Apsaras and he can enjoy liquor. Due to this mention in Quran, Jihadi Muslims fight for religion, and they are ready to give life to enjoy the
things, which they can get in heaven.
(iii) Gandhiji was wrong and he was telling
foolish things that all religions are equal. The saying of Gandhiji like “Ishwar Allah Tere
Nam” is totally incorrect. This kind of criticism was made by Malani in his speech.
(iv) While talking about Christian religion, Malani said that Christians are
cheats in saying that due to Yeshu, one can get
cure from all diseases and by saying so they are converting Hindus into Christian religion.
If Yeshu cannot save several thousands of person dying in America due to Aids, why such false things Christians are saying.
(v) Malani asked question during his
speech as to what kind of philosophy was there in Quran and Bible.
(iv) During speech Milind Ekbote called
upon Marathas to remember those Marathas who
had sacrificed their lives while fighting with Aurangzeb. As Gulams of Aurangzeb and persons
remembering Aurangzeb are still there, Marathas need to fight against them .
.The learned Counsel for the petitioners
submitted that petitioners published only thoughts of
Malani, which were already published by other paper.
6.The first article of the petitioners was
published on 06.07.2006 and aforesaid contents of the
first article show that by publishing aforesaid matter,
they have tried to create rift between persons of
aforesaid two religions. In view of their belief and
intention, not much can be made from the contention made
in Writ Petition No.1121 of 2009 that they have only
reproduced the article published by Satan Prabhat. It
can be said that in continuity of what they started
during 2006, they published article in 2007. This act is
against the unity of nation as it is an attempt to make
Hindus fight against Muslims and Christians.
7.In the F.I.R. given by Police Officers, it is
specifically contended that the intention was to create
rift between the persons of two religions and contents
were provoking the persons from Hindu community to act
against persons of Muslim community. The Police Officer
had expressed apprehension that due to such article,
there will be disturbance of public peace and danger was
created to law and order situation.
8.Learned Counsel for the petitioners submitted
that the apprehended instances of rioting did not take
place after publishing aforesaid articles and so
apprehension was baseless. He placed reliance on the
observations made by the Apex Court in the case reported
in (1995) 3 SCC 214 (Balwant Singh & Anr. Vs. State of
Punjab). In that case the Apex Court was considering the
decision of conviction and sentence given to the accused
for offence punishable under section 124-A and 153-A of
the Indian Penal Code. In the present matter the F.I.R.
itself is challenged and so the observations made by the
Apex Court are of no help in the present matter.
Similarly, in the case reported in (1997) 7 SCC 431
(Bilal Ahmed Kaloo Vs. State of A.P.), the decision of
the conviction was under challenge. These cases are of
no help to the petitioners in the present matter.
9.Learned Counsel for the petitioners submitted
one more point, the point of limitation. He submitted
that punishment provided for aforesaid offences is three
years imprisonment and so it can be said that now the
Magistrate cannot take cognizance of the matter. This
submission is not at all acceptable. In Writ Petition
No.1063 of 2009, there is no specific order of stay. In
Writ Petition No.1121 of 2009, there is order dated
29.09.2010 of interim relief like stay. It can be said
that due to pendency of the proceeding and stay order the
investigation is not made. This circumstance can be
certainly considered by the learned J.M.F.C., as provided
in section 473 of the Cr.P.C. The petitioners cannot be
allowed to make misuse of the pendency of the matters and
also of the interim relief granted by this Court. In
such circumstances, the learned J.M.F.C. has power to use
provisions of section 473 of Cr.P.C. and extend the
period and so, on this Count, no relief can be granted to
the petitioners. Such instances are increasing day by
day. We are a secular country and such conduct cannot be
taken lightly. The persons like petitioners need to
realize that the Courts will not take lenient view in
such matter and they will have to face process of law, if
they commit offences, which affect the unity and secular
structure of country.
10.In the result, Criminal Writ Petition No. 1063
of 2009 and Criminal Writ Petition No.1121 of 2009 are
dismissed. Third petition bearing Criminal Writ Petition
No.195 of 2010 is disposed of as infructuous. Rule
stands discharged. Interim relief, if any, granted
earlier stands vacated.
[S.M.GAVHANE,J.]
snk/2017/AUG17/ crwp1063.09
3 issues framed by the court
Whether CWP No. 195 of 2010 is infructuous.
Whether to quash FIRs registered for offences under section 153(a), (b), (c) IPC.
Whether the petitioners can claim protection under section 473 CrPC against limitation objections.
Chandrashekar s/o Govind Behere and Anr.
State of Maharashtra and Ors.
T.V. Nalawade
S.M. Gavhane
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court