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Madhya Pradesh High Court · body

2014 DIGILAW 1555 (MP)

Abdul Rashid v. State of M. P.

2014-11-28

ALOK VERMA

body2014
ORDER 1. This application under section 482 of CrPC is directed against the order passed by the learned 3rd Additional Sessions Judge, Indore in Criminal Revision No.468/2012 which in its turn was directed against the order passed by the learned JMFC, Indore in Criminal Case No.9838/2001. Learned revisional Court upheld the order passed by learned JMFC and therefore, this application under section 482 of CrPC is filed for quashing the orders passed by both the Courts below. 2. The brief facts for disposal of this application are that the present applicants along with other co-accused are facing a trial under sections 153A and 188 of IPC as Criminal Case No.9838/2001. 3. According to the present applicants, prosecution evidence was closed on 23.2.2011. The prosecution moved an application on 24.2.2011 for further examining some witnesses which was allowed. However, the prosecution did not avail the opportunity and the case was fixed for final arguments. On 16.8.2011, final arguments were heard and the case was fixed for judgment. On 23.8.2011, the prosecution moved an application under section 311 of CrPC for recalling of certain witnesses, which was dismissed by the trial Court. However, the revisional Court allowed the application and the High Court set aside the order. The prosecution again moved an application on 12.4.2012 and then on 20.4.2012, the prosecution moved an application under section 216 of CrPC for altering the charge. The Court vide order dated 10.5.2012 altered the charge and charge under section 505(2) of IPC was added. 4. The application was filed under section 216 of CrPC by the prosecution who defeat the order passed by various Courts dismissing their application under section 311 of CrPC. The prosecution wants to recall the witness O.P. Kujur. When the prosecution failed, the present application was filed. 5. I have gone through the impugned order. The learned revisional Court did not accept this submission of the present applicant that the offence under section 505(2)(1) of IPC is a minor offence in respect of the offence under sections 153A and 188 of IPC and therefore, no separate charge was required. 5. I have gone through the impugned order. The learned revisional Court did not accept this submission of the present applicant that the offence under section 505(2)(1) of IPC is a minor offence in respect of the offence under sections 153A and 188 of IPC and therefore, no separate charge was required. Relying on the judgment delivered in the case of Bilal Ahmad Kalu v. State reported in (1997)7 SCC 431 , the learned revisional Court observed that these are two different offences and also observed that the pamphlets and literatures were seized from the possession of present applicant for promoting feeling of enmity, hatred or ill-will between different religious or racial or linguistic or regional groups or casts or communities. However, after going through the judgment of Hon'ble Supreme Court delivered in the case of Bilal Ahmad (supra), in which, the Court observed in para 10 as under : “The common ingredient in both the offences is promoting feeling of enmity, hatred or illwill between different religious or racial or linguistic or regional groups or castes or communities. Section 153A covers a case where a person by "words, either spoken or written, or by signs or by visible representations" promtes or attempts to promote such feeling. Under section 505(2), promotion of such feeling should have been done by making and publishing or circulating any statement or report congaining rumour or alarming news. “ and then in para 12 as under : “The main distinction between the two offences is that publication of the word or representation is not necessary under the former, such publication is sine qua non under section 505. The words "whoever makes, publishes or circulates" used in the setting of section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, any one who makes a statement falling within the meaning of section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with section 153A also and then that section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.” 6. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.” 6. After going through these two paragraphs, it is clear that under section 505(2)(1) of IPC, promotion of such feelings should have been done by making publishing or circulating any statement and these three words should be read conjunctively and not disjunctively. As such, there should be publication and circulation in the present case, however, only objectionable literatures, pamphlets were found in the possession of present applicant. Permission of the State Government as required under section 196 of CrPC was granted only in respect of section 153A and not under section 505(2)(1) of IPC which is also require under section 196 of CrPC. 7. As such, in my opinion, altering the charge at such a late stage, without considering prima facia, the charge will make out or not, the Courts below erred while holding that the charge under section 505(2)(1) of IPC prima facia is made out on the same facts as alleged in the charge sheet. In such situation, I find that this application deserves to be allowed. 8. Accordingly, present application is allowed. The impugned order passed by the learned revisional Court in Criminal Revision No.468/2012 dated 2.7.2013 and the order passed by learned JMFC, Indore in Criminal Case No. 9838/2001 dated 10.5.2012 are set aside. The learned trial Court is directed to hear final arguments in the case and dispose of the case within three months after receiving certified copy of this order. Office is directed to immediately return back the records of the lower Court along with a copy of this order. 9. With such observations and directions, present applications stands disposed of. Anuj Bhargava for applicants; Himanshu Joshi, Panel Lawyer for respondent/State.