Prosecution for Blasphemy can be initiated without sanction for prosecution?

IN THE HIGH COURT OF CALCUTTA

C.R.R. No. 2515 of 2014
Decided On: 06.09.2016

Biplab Das and Ors.
Vs.
State and Ors.

Coram:Indrajit Chatterjee, J.

Citation: 2017 CRLJ 644

1. This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure (hereinafter called as the said Code) wherein the Order No. 1 dated 18th July, 2012 as passed by the learned Chief Judicial Magistrate, Howrah and also subsequent orders passed in that Complaint Case No. 612-C of 2012 (T.R. No. 80 of 2012) by the Judicial Magistrate 1st Court, Howrah, have been assailed before this Court.

2. Cognizance was taken by the Chief Judicial Magistrate, Howrah, as per Order No. 1 dated 18th July, 2012 and thereafter, the case was transferred to the Judicial Magistrate, 1st Court, Howrah and on examination of the witnesses under Section 200 of the Cr.P.C. The said learned court issued process against all the accused persons for the offence punishable under Sections 295/295A/120B and 426 of the Indian Penal Code.

3. It is the submission of Mr. Ganguly, learned senior Advocate, appearing on behalf of the petitioners that as the accused persons belong to Hindu community and the place of alleged destruction and the idol being one Hindu deity, no offence under Section 295 or 295A can be committed by the accused persons whoever Hindus. He further submitted that Section 295A requires prior sanction of the Central Government or the State Government, as the case may be, in terms of Section 196 of the Code and he submitted that such permission was not at all taken by the complainant before the Magistrate took cognizance in respect of the offence as stated above.

4. Thus, it is his contention that this prosecution is ipso facto bad as the learned Trial Court issued process without taking into consideration the fact that the sanction order was required.

5. In counter to all these, it is submitted by Mr. Sanyal, learned Advocate, appearing on behalf of the opposite party No. 2/complainant by taking me to Section 295 of the Indian Penal Code (hereinafter referred to as the I.P.C.) that if the ingredients of that offence are looked into, then the court may come to the conclusion that the act of the accused persons can very well attract that provision of Section 295 of the I.P.C.

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6. He, however, admitted that for Section 295A of the I.P.C. sanction is must as contemplated under Section 196 of the Code and he further contended that let the matter be left open before the learned Trial Court that if any sanction is received, then Section 295A may be clamped against the accused persons.

7. Before I proceed further, I like to say what is there in the complaint. This is the battle between the two groups of Hindu community and the complainant has claimed himself to be the managing Shebait of Iswar Laxmi Janardan Jew Thakur. The accused persons are resident of the same village.

8. The main grievance of the complainant as made out in the complaint was that the accused persons entered into a criminal conspiracy and with dishonest intention and mala fide motive, took away the Narayan Shila which was being worshipped since last 100 years and immersed it in a local pond contiguous to that temple. The name of the pond is Sardar Pukur.

9. Now, the question is whether Sections 295 and 295A can be attracted. It is better to quote here both the Sections 295 and 295A.

10. The main ingredients of Section 295 are as follows:

i) Destruction, damage or defilement of any place of worship or any object held sacred by any class of persons;
ii) Such destruction etc. must have been done with the intention of insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction etc. as an insult to their religion.
The ingredients of Section 295A are as follows:
i) That an insult or attempt to insult the religion or the religious beliefs was done to outrage religious feelings of any class of citizens of India;
ii) That such an act was done by words either spoken or written or by signs or by visible representation or otherwise;
iii) That such an act will deliberate and malicious intention.

11. Thus, mens rea is very important factor in both the cased. I may reiterate here that the complainant and the accused persons belong to the same community, i.e. the Hindus and the same scent of Hinduism.

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12. Thus, I have quoted the ingredients of Section 295 and 295A of the Indian Penal Code. I make it clear that the clause ‘class of person’ used in Section 295 cannot be constructed to be persons of different community. It may be clamped on the same community and sect.

13. There is Single Bench decision of this court as reported in (1956) 98 Cri LJ 139(Banarasi Lal Chamari V. the State) wherein Section 295 of the Indian Penal Code came into consideration before the court in one revisional application. In that case before the floor of this court both the complainant side and the accused were Hindus and conviction of the accused persons was affirmed. This court is also not unmindful of the decision as reported in MANU/SC/0050/1958 : AIR 1958 SC 1032 : 1958 Cri LJ 1565 (S. Veerabadran Chettiar V. E.V. Ramaswami Naicker). In that decision also the complainant and the accused belonged to Hindu community. The principle decided in that case was that the deity must be in the temple or that the deity must be taken out of the temple at the time of procession and if at that time anything is done to destroy, damage or defile that image or idol, then the provisions of Section 295 of the Indian Penal Code can be invoked.

14. Here in the case before the floor of this court the idol was allegedly taken out of the temple and immersed in the nearby pond and as such Section 295 of the Indian Penal Code may prima facie apply. This court is not unmindful of the fact that the main ingredient of that Section is that there must be motive to do this. Thus, the trial court must fathom what was in the mind of the accused when they committed that alleged crime. The trial court at the time of recording evidence may consider that aspect to come to the conclusion whether there was any motive on the part of the accused to destroy, damage or defile such image with intention of insulting the religion or with the knowledge or that any class of person is likely to consider such destruction, damage, etc. as insult to their religion. Thus, the matter as stands now Section 295 of the Indian Penal Code can very much be applicable.

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15. There is no doubt that to attract Section 295A of the Indian Penal Code there must be a sanction. Thus, unless this sanction order is obtained by the complainant from the State Government this prosecution is not maintainable in respect of that charge under Section 295A of the Indian Penal Code. Thus to sum up this court is of the opinion that except 295A of the Indian Penal Code the trial court can very much proceed with the complaint case as per law. Only if sanction is obtained Section 295A of the Indian Penal Code may be clamped if the Magistrate is satisfied on evidence in that regard.

16. With the observation made above this criminal revision is disposed of.

17. Learned trial court will proceed with the complaint case in view of the observations made by this court.

18. The office is directed to communicate this order to the learned trial court for necessary action on its part.

19. Certified copy be given to the parties on urgent basis as per rules, if applied for.

20. The petitioners will be at liberty to agitate before that court the factual aspect of this court without being influenced by any observation made by this court.

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