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1 RESERVED Court No. - 63 Case :- APPLICATION U/S 482 No. - 15306 of 2011 Applicant :- Dr. Zakir Abdul Karim Naik Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Duleep Kumar,G.S. Chaturvedi,Imran Ullah,N.I. Jafri Counsel for Opposite Party :- Govt.Advocate,Atul Kumar Srivastava,B.A. Khan,Nazia Ilyas,Rajeshwar Prasad Sinha,Shahid Ali Siddiqui Hon'ble Amar Singh Chauhan,J. Heard Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri Imran Ullah and Sri N.I. Jafri, learned counsel for the applicant, Sri Raj Bahadur, learned AGA for the State and Sri Shahid Ali Siddiqui, learned counsel for the opposite party no. 2. Applicant,

Dr.

Zakir

abdul

Karim

Naik,

through

this

application under section 482 Cr.P.C. has invoked the inherent jurisdiction of the Court with a prayer to quash the order dated 07.04.2011 passed by the learned Additional Session Judge IV, Jhansi in Criminal Revision No. 194 of 2010 and the order dated 30.4.2010 passed by the learned Judicial Magistrate-X, Jhansi summoning the applicant under sections 109, 115, 116, 121, 298, 502, 511 IPC, Police Station Kotwali, District Jhansi and further prayed to stay the aforesaid proceeding. Brief facts which are requisite to be stated for adjudication of this application are that the opposite party no. 2 filed a complaint on 9.1.2018 before the Chief Judicial Magistrate X, Jhansi with the allegation that in the television programme which was telecasted in Peace TV on 21.1.2006, the applicant had participated in a religious dialogue with Sri Sri Ravi Shanker, the

2 founder of Art of Living foundation, which was held at Bangalore, wherein the applicant had hurt the religious sentiments of a particular community. It is also alleged that applicant had published and distributed a pamphlet just to incite hatred and illwill amongst different communities. It is relevant to reproduce the extract of what has been quoted in Para No. 7 of the complaint as follows:“Every Muslim should be a terrorist. A terrorist is a person who causes terror. The moment a robber sees a policeman he is terrified. A policeman is a terrorist for the robber. Similarly every Muslim should be terrorist for the anti-social elements of society,

such

as

thieves,

dacoits

and

rapist.

Whenever such an anti-social element sees a Muslim, he should be terrified. It is true that the word Terrorist is generally used for a person who causes terror amongst the common people. But a true Muslim should only be a terrorist to selective people i.e. anti-social elements, and not to the common innocent people. In fact, a Muslim should be a source of peace for innocent.”

It is further alleged that the pamphlet which was allegedly authored by the applicant, showed that it contains a recital to the effect that Muslim should be a Terrorist. Terrorist has been defined to be a person, who causes terror and illustration of policeman has been given, who is a terrorist for a robber and thus, it has been mentioned that similarly every Muslim should be a Terrorist to selective people like anti-social elements of the society such as thieves, dacoits, rapist etc. and every anti social element should be terrorized on seeing a Muslim and thus, in fact, a Muslim should be a source of peace for innocent people. It is also alleged

3 that the person, who does not follow Hadis and does not accept the truth of Islam is Kafir and anti-social element and only those persons, who follow Sunna and Hadis are innocent. The statement of opposite party no. 2 was recorded under section 200 Cr.P.C on 21.1.2008 and of witnesses under section 202 Cr.P.C. on 25.2.2008. Learned Chief Judicial Magistrate after examining the contents of complaint as well as other presummoning evidence was of the view that no prima facie offence is made out and as such complaint is rejected under section 203 Cr.P.C. The opposite party filed a revision which was allowed and order dated 12.5.2008 was set aside and the matter was remanded back for afresh decision. Learned Magistrate, Court No. 10, Jhansi on being satisfied issued the process under sections 109, 115, 116, 121, 153A, 153B, 298, 502, 505, 511 IPC which was challenged by the applicant by way of Criminal Revision numbered as 194 of 2010. Learned Additional Sessions Judge, Court No. IV, Jhansi partly allowed the revision of the applicant and set aside the summoning order against the applicant with regard to Sections 153A, 153B and 505 IPC and the remaining order was affirmed. Being aggrieved from the summoning the applicant moved this application before this Court. It is submitted by learned by learned counsel for the applicant that the order issuing process as well as order passed by the Additional Session Judge, Court No. IV, Jhansi in revision is erroneous without jurisdiction and passed mechanical manner. A bare perusal of complaint in which a pamphlet is relied upon

4 would show that no offence much less an offence under sections 109, 115, 116, 121, 298, 500 and 511 IPC is made out against the applicant inasmuch as the complaint lacks the necessary averment and ingredient for the offences as enumerated below: Sections

109,

115,

116

and

511

IPC

being

punishment for abetment and attempt of the offences is not made out against the applicant, as the principal offences under sections 121, 153A, 153B, 298, 500, 511 IPC as alleged to have been abetted or attempted by the applicant is itself not made out. Section 121 IPC is punishment for waging war against

the

government

or

its

attempt

and

abetment. A perusal of complaint as well as presummoning evidence will demonstrate that even if the allegations as contained are taken to be true also the same with no stretch of imagination can be termed as waging war against the government inasmuch as the word government as referred in the afoersaid section denotes central government or the government of state and as per complaint no act has been done to destroy property to over turn government to dissolve all the bonds of society and by force of arm to restrain the government from the reigning according to law.

Learned counsel for the applicant has placed reliance upon a case law in State vs. Navjot Sandhu alias Afsan Guru, SCC (2005)11 600 and another case law in Emperor vs. Hasrat Mohani (1922 AIR (Bom) 294) wherein it has been observed that speech should be read as a whole and there should be sufficiently clear and direct incitement to violence for the purpose of overthrowing the government established by law in this country. It is further submitted that if the contents of the

5 pamphlet is read as whole the same shall be demonstrated that it is for the betterment for the Muslim community and public in large as the same was the warm expression in a good faith with an intention to apprise the public at large regarding terrorism. There was absolutely no imputation with the intention of harming or with knowledge or having reason to believe that it would harm the reputation of the complainant as such no offence under sections 298,502, 121 IPC is made out. It is again submitted that in the present case there is no sanction as required under sections 196(1) (a) (b) (c) and 1A of Cr.P.C. to prosecute the applicant for the offence under Chapter VI of IPC. It is further submitted that the learned Magistrate has latently ignored the provisions of Criminal Procedure Code whereby the Section 202 Cr.P.C. has been amended and the word “may” has been substituted with “shall” thereby making it obligatory upon an Magistrate before issuing summons with reference to an accused who resides beyond the jurisdiction of the Magistrate to conduct an inquiry under section 202 Cr.P.C.

The complainant had not

produced any material whatsoever in the form of audio, video recording, transcript etc. or any other material whatsoever alongwith the complaint to show that the programme was telecasted on Peace TV channel on 21.9.2006 in Jhansi. It is also submitted that learned Magistrate mechanically summoned the applicant

without appreciating the proceeding of law as also laid

down by

Hon'ble the Apex Court in Pepsi Foods Limited and

another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749 held as under:

6 "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof

and would that be sufficient for the

complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence

before

summoning

of

the

accused.

Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

Criminal proceeding against the applicant being abuse of the process of the court and likely to be quashed, the principle of law enunciated by Hon'ble the Supreme Court in case of State of Haryana vs. Bhajan Lal, 1992 supp. SCC 335 also which is as under: “where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for

7 proceeding against the accused; where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; “

Learned AGA as well as learned counsel for the opposite party no. 2 contended that according to the applicant, any person, who does not follow Hadis and does not accept the truth of Islam is Kafir and anti-social element and only those persons, who follow Sunna and Hadis are innocent. The applicant, in his pamphlet, has written that every Muslim should be terrorist etc. to selective people, i.e., anti-social element. The applicant had already filed Criminal Revision No. 194 of 2010 before the revisional court, therefore, he has

already exhausted the

alternate remedy open to him and now only remedy to the applicant is to file criminal misc. writ petition, not the application under Section 482, Cr.P.C. In this regard, reliance has been placed in case of Puran Vs. Ram Bilash, reported in (2201) 6 SCC 338 and the judgment rendered in the case of Shafique Ali Vs. Suraj Bibi, reported in 263, 2004 (TLS) it is contended that the present 482, Cr.P.C. application as a second revision cannot be permitted under the Cr.P.C. and in this regard he has referred a judgment in the case of Harbans

Singh

Vs.

State

of

Rajasthan [1998 Cr.L.J. 433] in which same preposition has been laid down by the High Court of Rajasthan. Learned counsel for the opposite party no. 2 has also relied upon the case of Swaraj

8 Thackrey alias Raj Thackrey Vs. State of Jharkhand and others, reported in 2008 Cr.L.J. 3780 and has argued that Hon'ble Apex Court has held that if sanction is not taken before taking cognizance, same can be taken during trial and if sanction is received by the Government during pendency of trial, then fresh cognizance can be taken under the said section. It has also been contended on behalf of the opposite party no. 2 that the complaint filed by him is not mala fide or frivolous or vexatious. Before averting to the claim of the parties, it is useful to quote the provision of sections 202 and 204 Cr.P.C. 202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the

9 offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant. 204. Issue of process:(1)

If

in

the

opinion

of

a

Magistrate

taking

cognizance of an offence there is sufficient ground for proceeding, and the case appears to be(a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself), some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87".

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs.

10 Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows: “The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case

against

the

accused

(2)

where

the

uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or

the

concerned

Act

to

the

institution

and

continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection”.

In the case in hand the applicant was summoned under sections 109, 115, 116, 121, 298, 502, 511 IPC. It is vivid on cojoint perusal of the extract pamphlet mentioned in para no. 7 of the complaint and speech that although intention may be good but the message forwarded was that all non-Muslims are Kafirs and Muslims should be terrorist for others, who are Kafirs. Kafir, the person who does not follow Hadis and does not accept Islam and Muslim can only be terrorist to a selective people i.e. antisocial element and kafir. So far as bar under section 196 Cr.P.C. is concerned it is only against taking of cognizance by the Court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation and also enquiry made

11 under sections 200 and 202 Cr.P.C. by the Magistrate. No person or community can be permitted to act in a manner, which is against the established procedure of law and start acting like a law enforcing agency. In fact, a speech or pamphlet,

which

may

incite

any

particular

community

or

individual to act in a manner, which may strike terror, even on anti-social elements cannot be permitted, inasmuch as for dealing with anti-social elements and offender of law, the law enforcing agencies are existing for taking appropriate action against them. Any kind of depiction by way of telecast or by way of print media, which may incite any person or community for doing such act, is not permissible under the established law or the procedure as laid down under law, should be deprecated and should be punished to the extent of commission of the offence under the relevant provisions of the penal code. Hon'ble the Supreme Court in case of State of Karnataka and another vs. Pastor P. Raju, (2006) 6 SCC 728 held as under: “The opening words of the Section are "No Court shall take cognizance" and consequently the bar created by the provision

is against taking of

cognizance by the Court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 Cr.P.C. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no

12 violation of Section 196(1-A) Cr.P.C. and no illegality of any kind would be committed. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word "cognizance". However, the word "cognizance" has not been defined

in

the

Criminal

Procedure

Code.

The

dictionary meaning of the word "cognizance" is 'judicial hearing of a matter'. Taking cognizance of

an

offence

is

not

the

same

thing

as

issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out....... An order remanding an accused to judicial custody does not amount to taking cognizance of an offence. In such circumstances section 196(1-A) Cr.P.C can have no application at all and the High Court clearly erred in quashing the proceeding on the ground that previous sanction of the Central Government or of the State Government or of the District Magistrate had not been obtained.”

In the instant case only process were issued and no cognizance has been taken. Therefore, the bar under section 196 Cr.P.C. have no application. The court was to take cognizance of an offence when it applies mind to the facts of the case to proceed therewith meaning thereby at the time of framing of the charges, as a matter of fact, the prosecution could produce sanction during trial at the time of framing of the charges. Moreover, applicant has also invoked revisional power against the summoning order which was dismissed on merit. The Hon'ble

13 Apex Court in case of Krishnan and another vs. Krishnaveni and another, 1997 (4) SCC 241 held that though the power of the High Court under section 482 Cr.P.C is very wide yet the same must be exercised sparingly and cautiously particularly in cases where the petitioner is shown to have already invoked the revisional jurisdiction under section 397 Cr.P.C. The Division Bench of Punjab and Haryana High Court in case of State of Punjab vs. Sunder Singh and others, 1992 Cri.L.J. 1330 held as under: A perusal of Sub-sections (1-A) and (2) of Section 196 of the Code, as reproduced above, would show that

sanction

was

not

required

for

criminal

conspiracy to commit an offence punishable with death,

imprisonment

for

life

or

rigorous

imprisonment for a term of two years or upwards. The offences for which the accused were charged in the present case provide imprisonment with a term of two years and above. May be when the challan was presented, sanction of the appropriate authority for some of the offences was required and if immediately thereafter an application had been filed on behalf of the accused and before the amendment was made relying upon the decisions cited before the trial Magistrate, the accused could be discharged with the observation that the prosecution could file the challan again after obtaining necessary sanction. As a matter of fact, the prosecution could produce sanction during the trial also. If the prosecution was required to obtain sanction and then refile the challan even if the law had been amended in the mean time, the challan could be represented without obtaining the sanction. Even after the impugned order has been passed even now, as the law stands, no sanction is required as the offences, for which the accused are to be

14 prosecuted, provide sentence of two years and above.

In another case, the Hon'ble Apex Court in case of R.R. Chari vs. State Of Uttar Pradesh, 1951 AIR SC 207 wherein it has been observed that “taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate as such applies his mind to the suspected commission of an offence" From perusal of the summoning order and complaint, it cannot be said that prima facie, no case is made out. Most of the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. Only in cases where the court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice. In view of what has been submitted by the parties and discussed as above, I find no reason to interfere in the proceeding and, therefore, refuse to quash the proceedings in the aforesaid case as the summoning order dated 30.4.2010 is justified. No illegality or demerit is found in the impugned orders. Accordingly, the application is rejected. Interim order, if any, stands vacated. Office to intimate this order to the court concerned. Order Date :- 11.4.2018 Puspendra