Bombay High Court: The instant applications were filed under Section 4821 of the Code of Criminal Procedure, 1973 (“CrPC”) for quashing of FIR and chargesheet against the accused personss for offences punishable under Section 295-A2, 5043, and 5064 of the Penal Code, 1860 (“IPC”). The Division Bench of Vibha Kankanwadi* and Vrushali V. Joshi, JJ., noted that the Investigating Officer concerned (“IO”) recorded the statements under Section 1615 of CrPC, of only four witnesses, who were of a particular community, while the instant WhatsApp group had 150 to 200 members; and further stated that only four witnesses and one informant could not be counted as a ‘class’ as contemplated in Section 295-A of IPC, to constitute insulting a religion on a wide-scale. Therefore, the Court did not even find a prima facie case against the accused personss, exercising their powers under Section 482 of CrPC, quashed and set aside the FIR and the chargesheet.
Background
The FIR was lodged by the informant, who, along with the accused personss, was a member of a WhatsApp group, wherein, both the accuseds were asking some allegedly outrageous questions about the Muslim community. It was stated at some point in the WhatsApp group that if the informant wanted to live in Hindustan, they should say ‘Vande Matram’. The informant refused to do the same since it means ‘to worship the mother’, and had he done that, he would have been ousted from Islam. The informant submitted that the conversations taking place in the WhatsApp group showed that the accused persons carried some grudge against the Muslim community and were meaning to showcase Hindus better than Muslims. The FIR was lodged by the informant only a day after joining the WhatsApp group. There were altercations between the informant and one of the accused , arising out of the alleged violation of Section 295-A of IPC.
Court’s analysis and decision
The Court considered the provisions of Section 295-A of IPC and stated that the essence of the offence therein is to insult a religion or outrage religious feelings, done deliberately and with conscious intention.
The Court considered the facts of the case and noted the end-to-end encryption feature on WhatsApp, i.e., a third person who is not a member of a WhatsApp group, cannot see or know about the messages not sent to them. Through the FIR, it was demystified that the group had already been formed, however, the chargesheet did not mention when the said group was formed and who the admin was.
The Court said that every insult or attempt to insult the religion or the religious beliefs of a person or community is not covered under Section 295-A of IPC, but only the deliberate or malicious acts.
The Court observed that now-a-days, people had become more sensitive about their religions and want to portray their religion or God as supreme. The Court highlighted that India is a secular country where everybody should respect the religion, caste, creed etc. of others. However, in such a sensitive matter, the Court stated that there are better means and ways to react to them.
The Court at this juncture answered the following question: whether the end-to-end encrypted group chat outraged the religious feelings as per Section 295-A of IPC?
The Court noted that the IO concerned, recorded the statements under Section 161 of CrPC, of only four witnesses, who were of Muslim community, while the instant WhatsApp group had 150 to 200 members.
Taking note of the submission of one of the witnesses, that the group discussed political issues, the Court observed that when political issues are subject to a discussion, it would “definitely give heated exchange of thoughts and there would fire-works”. However, the Court also noted that this witness had not stated that his religious sentiment was hurt by the messages of the accused persons. Further noting the remaining witnesses’ thoughts and submissions on the disputed messages, the Court noted that they were silent on their feelings after reading the messages of the accused persons.
Therefore, the Court opined that the IO had adopted a ‘pick and choose’ method and recorded the statements of only those witnesses who were from the same community as that of the informant, when the WhatsApp group in fact consisted of more than 150 to 200 members from both Hindu and Muslim communities. The general statements of the four witnesses that the accused persons were speaking against their community would not be considered a wide-scale insult. It is because their statements did not showcase the triggering point and noting that they themselves did not state that their religious beliefs were insulted, the ingredients of Section 295-A of IPC could not be attracted. The Court further stated that only four witnesses and one informant could not be counted as a ‘class’ as contemplated in Section 295-A of IPC.
About Section 504 and 506 of IPC, the Court noted the contents of the FIR, wherein it was stated that when the informant responded to the messages of the accused, the latter challenged the informant to come to Narkhed and was abused as ‘rebel’ and ‘traitor’. The informant thereafter went to the hospital of one of the accused persons to give him an understanding, where they had an altercation; later the informant left, only to return in the afternoon with some people to give the accused an understanding again, and there was an altercation again.
The conduct of the informant, according to the Court, showed that he was the aggressor, and went to the accused person’s hospital to instigate. The Court stated that if the informant was the cause for instigation, he should have also been ready for a reaction.
The four witnesses posed themselves as witnesses to the afternoon altercation, but they did not depose that they had accompanied the informant. The people who did in fact accompany the informant; their statements were not recorded.
Therefore, considering all these aspects, the Court did not even find a prima facie case against the accused persons, and opined that it would be unjust for them to face the trial.
The Court referred to State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335,wherein it was stated that, 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 or personal grudge, it shall be quashed. Therefore, the Court exercised the powers vested in it under Section 482 of CrPC, and the FIR and the chargesheet were quashed and set aside.
[Pramod v. State of Maharashtra, 2024 SCC OnLine Bom 2359, decided on 24-07-2024]
*Judgment authored by: Justice Vibha Kankanwadi
Advocates who appeared in this case :
For the applicant: Sameer Sonwane, Advocate
For the non-applicants: Anup Badar, AGP; R.S. Akbani, Advocate
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1. Corresponding Section 528 of Nagarik Suraksha Sanhita, 2023 (“BNSS”)
2. Corresponding Section 299 of Nyaya Sanhita, 2023 (“BNS”)
4. Section 351(2) and (3) of BNS
