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2022 DIGILAW 1832 (BOM)

Sunil Madhukar Dhepe v. State of Maharashtra

2022-08-03

RAJESH S.PATIL, VIBHA KANKANWADI

body2022
JUDGMENT 1. The present application has been filed invoking the inherent powers of this Court under Sec. 482 of the Code of Criminal Procedure to quash the criminal proceedings bearing R.C.C. No.438/2020 including the F.I.R. on the basis of which the criminal case came to be filed before the learned Chief Judicial Magistrate, Osmanabad, for the offence punishable under Sec. 3 of the Police (Incitement to Disaffection) Act, 1922 [hereinafter referred to as the 'Act']. 2. Heard Mr. Sushant B. Choudhari, learned advocate for the applicants and Mr. M. M. Nerlikar, learned APP for respondent/State. 3. Learned advocate for the applicants submits that the applicant no. 1 is a Journalist and applicant no. 2 is an agriculturist as well as Social Worker. The F.I.R. has been lodged by respondent no. 2 in the capacity of P.S.I. attached to Cyber Cell of Osmanabad district, on 14/1/2020. In the F.I.R., it has been stated that while going through the social media as per the direction given by the District Superintendent of Police, he found on 13/1/2020 an objectionable article, which was on Facebook account under the name 'Osmanabad Live'. It was published around 15:39 hrs., and it was liked & published by applicant no. 2 at about 15:53 hrs., on his Facebook account. Both of them had published that objectionable article which was having heading ...[VERNACULAR TEXT OMITTED].... The informant says that after perusing the said contents of the post, which was divided into eight paras, it is found that, in each para, the then District Superintendent of Police - Shri. Raj Tilak Roashan was referred to as 'fcgkjh ckc w' and question was raised as to why no action has been taken in respect of the incident of assault on a Journalist at Tuljapur and what was the source of amount of Rs.5.00 lakhs which was donated by the police department to the Literary Convention that was organized in Osmanabad. The informant says that the post of District Superintendent of Police is a highest post in the police department in the district and in order to defame the said post as well as to malign the status of the police from Osmanabad, the said article was published and it was to create disaffection of the general public as against the police persons and, therefore, he invoked Sec. 3 of the Police (Incitement to Disaffection) Act, 1922. 4. 4. The investigation has been carried out and the statement of witnesses have been recorded. Most of the statements are of the police constables and not a single statement of general public as to what they had felt after going through the said post has been recorded. Learned advocate for the applicants has relied upon the decision in Ravindra s/o Baliram Dhawale vs. State of Maharashtra reported in 2021(4) Mh.L.J. (Cri.) 432, the Division Bench of this Court after considering the item that was published in the newspaper wherein also Sec. 3 of the Act was invoked, however, along with that, provisions of Sec. 500 of IPC were also invoked, held that the wordings of Sec. 3 requires disaffection to be created amongst police and it should be against Government and not against a particular police employee. On the similar set of facts when it was alleged that defamatory article has been published in the newspaper, the said Division Bench held that "in view of wording of Sec. 3 of the Act, it can be said that the purpose of the publication of the matter was not to create disaffection amongst the police or incite them to act against the Government. Thus, even if the allegations made in the FIR are accepted as they are, they cannot make out offence punishable under Sec. 3 of the Act". Thereupon, the F.I.R. was quashed in respect of that offence but as regards Sec. 500 of Indian Penal Code is concerned, liberty was given to the concerned Magistrate to proceed. 5. Here in this case, only the provisions of Sec. 3 of the Act are invoked and, therefore, it cannot be said that the said article has created any kind of disaffection amongst police to act against the Government. Learned advocte for the applicants prayed for quashing of the entire proceedings. 6. Learned APP strongly opposed the application and submitted that, now in view of the amendment to the punishment to be imposed under Sec. 3 of the said Act, it has been made punishable with three years and fine. So it would be a cognizable offence and, therefore, the cognizance has been taken by the learned Chief Judicial Magistrate, Osmanabad, of the said offence. If we consider the contents of the post that was published by applicant no. 1 and then liked by applicant no. So it would be a cognizable offence and, therefore, the cognizance has been taken by the learned Chief Judicial Magistrate, Osmanabad, of the said offence. If we consider the contents of the post that was published by applicant no. 1 and then liked by applicant no. 2, it showes that at each place the District Superintendent of Police has been referred to as 'fcgkjh ckc w' and it cannot be said that the intention was bona fide one. There may be grievances of the Journalists stating that action should have been taken on the basis of alleged incident of assault to one Journalist at Tuljapur but then this cannot be the way to create unrest against Government department. The intention and other things would be clarified at the time of trial and, therefore, this is not a fit case where the inherent powers of this Court under Sec. 482 of the Cr.P.C. should be exercised. 7. At the outset, it is to be noted that the F.I.R. does not reproduce the entire post that was read by the informant and it appears that, copy of the same was not even given to the applicants along with the charge-sheet. The F.I.R. rather highlights only those things which the informant wanted to highlight. We could find the photocopy of the said post in the police papers, which were supplied to learned APP. In the said post, it has been stated that the reporter of a Osmanabad T.V. news channel was manhandled by the police persons two days prior to the said post, however, it is stated that the District Superintendent of Police who has been referred to as 'fcgkjh ckc w' has not taken any cognizance of the same and he was only watching the same. If we want to go para by para, then definitely this portion does only state about the fact and the interpretation that District Superintendent of Police has not taken any action. The second para states that the Journalists from the entire State have registered their dissatisfaction so also the Ex-Chief Minister and Minister has also taken note of the same but the District Superintendent of Police has not taken any action. Again he has been referred to as 'fcgkjh ckc w'. This para also speaks about a fact. The second para states that the Journalists from the entire State have registered their dissatisfaction so also the Ex-Chief Minister and Minister has also taken note of the same but the District Superintendent of Police has not taken any action. Again he has been referred to as 'fcgkjh ckc w'. This para also speaks about a fact. The third paragraph gives a picture that there are two associations of the Journalists in Osmanabad district and then it is stated that with some fractions only the District Superintend of Police has good relations and then inference has been drawn that he has nothing to do with other Journalists. Then there is reference that the same person i.e. District Superintendent of Police was in fact Additional Superintendent of Police in Osmanabad in 2016 and at that time there was some offence registered against three Journalists and according to the applicant no. 1, false offence has been lodged against those Journalists. Again we will have to repeat that the said para speaks about fact and addresses District Superintendent of Police as 'fcgkjh ckc w'. The next two paras also speak about the incidences which have taken place at Tuljapur and other places and so also inaction by the police. Thereafter, a grievance has been raised that the said District Superintendent of Police is unable to speak Marathi properly and it is stated that he has written a book which was then published in the Literary Convention. Again a fact and then it is stated that donation of Rs.5.00 lakhs was given by the police deparment for the said Literary Convention [Sahittya Sammelan] and a question has been asked as to from whom the said huge amount has been collected. Definitely the Journalists have right to ask such questions and nobody should feel aggrieved or defamed when the source of donation is asked. The further paras are on the same line. Therefore, taking into consideration the said post which was written by applicant no. 1 and liked and published again by applicant no. 2 on his Facebook account, we can, at the most, say that it was an act of informing the public and by some stretch of the facts it might have given right to the then Superintendent of Police for lodging a complaint by alleging that he has been defamed. 8. Sec. 3 of the Act runs thus: "3. 2 on his Facebook account, we can, at the most, say that it was an act of informing the public and by some stretch of the facts it might have given right to the then Superintendent of Police for lodging a complaint by alleging that he has been defamed. 8. Sec. 3 of the Act runs thus: "3. Penalty for causing disafection, etc. :- Whoever intentionally causes or attempts to cause, or does any act which he knows is likely to cause disaffection towards the Government established by law in India amongst the members of a Police force, or induce or attempts to induce, or does any act which he knows is likely to induce any member of a police force to withhold his services or to commit a breach of discipline, shall, on conviction, be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both. Explanation.- Expressions of disapprobation of the Government with a view to obtain their alteration by lawful means or disapprobation of the administrative or other action of the Government do not constitute an offence under this sec. unless they cause or are made for the purpose of causing or are likely to cause disaffection." 9. In fact, we would like to adopt the interpretation that has been done by the Division Bench of this Court in the case of Ravindra Dhawale (supra), in which, note was taken of the judgment delivered in Criminal M.A. No. 7536/2008 decided with other applications on 18/4/2012 by Gujarat High Court (Bharat Desai, Editor, Times of India and Anr. Vs. State of Gujarat and anr.). After considering the facts, the Hon'ble Gujarat High Court held that the comments questioning the wisdom of State Government cannot lead to inference that there was intention of the publisher to induce or incite police which is requirement of Sec. 3 of the Act. Such disaffection needs to be created amongst police and it should be against the Government. Further, observations by the Hon'ble Apex Court in Civil Appeal No.4815/2013 (N. Sengodan vs. Secretary to Government, Home (Prohibition and Excise) Department, Chennai and others) in relation to Sec. 3 of the Act, were also noted. In para no. Such disaffection needs to be created amongst police and it should be against the Government. Further, observations by the Hon'ble Apex Court in Civil Appeal No.4815/2013 (N. Sengodan vs. Secretary to Government, Home (Prohibition and Excise) Department, Chennai and others) in relation to Sec. 3 of the Act, were also noted. In para no. 29, the Hon'ble Apex Court has made following observations : - "29. It is apparent from Sec. 3 of the Act 1966 that there is no specifc ban to form association but there is a restriction to form association. A Police personnel can be a member of, or can be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations only with the express sanction of the Central Government or of the prescribed authority. For attracting the penalty under Sec. 3 for causing disaffection, it is to be proved that the person concerned intentionally caused or attempted to cause or done any act which is likely to be disaffection towards the Government established by law in this country among the members of the Police force or induces or attempts to induce or does any act which he knows likely to induce any member of the Police force to withhold his service or committed breach of discipline." 10. Independently also if we consider the statement of objects and reasons when the said provision or Act was enacted in 1922, we will have to consider that there was British Rule in this country and to protect the Government from any such agitation by or on behalf of the police department at the instigation of the public, these provisions were made. No doubt, the said Act still exists but it's application is not in such a way as the prosecution intends to. It is also to be noted that during the investigation, the statement of only police officers have been recorded. Some of them had not even read the post on their own. The reading of the post will not in any way create dissatisfaction amongst police against the State Government and, therefore, continuation of the proceedings against the applicants would be an abuse of process of law. 11. In view of the judgment delivered by the Hon'ble Apex Court in the case of State of Haryana and Others Vs. The reading of the post will not in any way create dissatisfaction amongst police against the State Government and, therefore, continuation of the proceedings against the applicants would be an abuse of process of law. 11. In view of the judgment delivered by the Hon'ble Apex Court in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, we would like to exercise inherent powers under Sec. 482 of the Code of Criminal Procedure to quash the F.I.R. as well as the entire proceedings. Hence, following order. ORDER [i] Criminal Application stands allowed. [ii] The FIR vide C.R. No. 08/2020 registered with Anand Nagar Police Station, Osmanabad on 14/1/2020 and the proceedings in R.C.C. No.438/2020 pending before learned Chief Judicial Magistrate, Osmanabad or any other Court to whom it has been assigned, for the offence punishable under Sec. 3 of Police (Incitement to Disaffection) Act, 1922, stands quashed and set aside. [iii] The bail bonds of the applicants stands cancelled.