CR.MA/4518/2003 1/85 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4518 of 2003 With CRIMINAL MISC.APPLICATION No. 4519 of 2003 With CRIMINAL MISC.APPLICATION No. 4522 of 2003 With CRIMINAL MISC.APPLICATION No. 4525 of 2003 With CRIMINAL MISC.APPLICATION No. 6967 of 2003 With CRIMINAL MISC.APPLICATION No. 7015 of 2003 With CRIMINAL MISC.APPLICATION No. 7016 of 2003 With CRIMINAL MISC.APPLICATION No. 7017 of 2003 With CRIMINAL MISC.APPLICATION No. 7471 of 2003 With CRIMINAL MISC.APPLICATION No. 7472 of 2003 With CRIMINAL MISC.APPLICATION No. 7885 of 2003 With CRIMINAL MISC.APPLICATION No. 2504 of 2004 With CRIMINAL MISC.APPLICATION No. 2505 of 2004 With CRIMINAL MISC.APPLICATION No. 2506 of 2004 With CRIMINAL MISC.APPLICATION No. 2507 of 2004 With CRIMINAL MISC.APPLICATION No. 2508 of 2004 With CRIMINAL MISC.APPLICATION No. 2509 of 2004 With CRIMINAL MISC.APPLICATION No. 5141 of 2004 With CRIMINAL MISC.APPLICATION No. 9572 of 2004 With CRIMINAL MISC.APPLICATION No. 9573 of 2004 CR.MA/4518/2003 2/85 JUDGMENT With CRIMINAL MISC.APPLICATION No. 9574 of 2004 With CRIMINAL MISC.APPLICATION No. 1348 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= GOPALBHAI R. PRAJAPATI - Applicants Versus PRATAPBHAI HAMIRBHAI BHEDE & 4 - Respondents ================================================= Appearance : MR KJ SHETHNA WITH MR RAMESH K SHAH for Petitioners. MR PM THAKKAR, SENIOR ADVOCATE WITH MR HR PRAJAPATI for Respondents – Complainants. MR AD OZA, PP WITH MR MUKESH A PATEL WITH MR H L JANI, APP for State of Gujarat. CR.MA/4518/2003 3/85 JUDGMENT 2. Cri. Misc. Application No. 7885 of 2003 MR TS NANAVATI for petitioners. MR PM THAKKAR, SENIOR ADVOCATE WITH MR HR PRAJAPATI for Respondents – Complainants. MR AD OZA, PP WITH MR MUKESH A PATEL WITH MR H L JANI, APP for State of Gujarat. 3. Cri. Misc. Application No. 5141 of 2004 MR BB NAIK WITH MR DS VASAVADA for petitioners. MR PM THAKKAR, SENIOR ADVOCATE WITH MR PJ BHATT WITH MR HR PRAJAPATI for Respondents – Complainants. MR AD OZA, PP WITH MR MUKESH A PATEL WITH MR H L JANI, APP for State of Gujarat. ================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 09/03/2006 COMMON ORAL JUDGMENT 1.All these Cri. Misc. Applications are filed by the petitioners – original accused, under Section 482 of the Criminal Procedure Code praying for quashing and setting aside the respective complaints filed by the complainants in different Courts of learned Judicial Magistrate First Class in the State of Gujarat. Since common issue is raised and it is in respect of the same incident, all these CR.MA/4518/2003 4/85 JUDGMENT applications are heard together and disposed of, at the request of the learned advocates appearing for the respective parties, by this common judgment and order. 2.Cri. Misc. Application No. 4518 of 2003 is filed by the petitioner – original accused praying for quashing and setting aside the criminal Complaint No. 64/2003 filed by the complainant for the alleged offence under Sections 295-A, 504, 500 & 114 of I.P.C. in the Court of Judicial Magistrate First Class, Liliya. Similarly, the following are the details of other Cri. Misc. Applications challenging the complaints filed in the different Courts in the State of Gujarat. Criminal Misc. Application No. Name of Court Criminal Case No. Offence U/s. 4519/2003 JMFC, Una. 214/2003 295-A, 500, 504, 505, 506 (2), 508, 406, 114. 4522/2003 JMFC, Bhachau. 299/2003 295, 298, 114. 4525/2003 JMFC, Gondal. 872/2003 295-A, 296,298. CR.MA/4518/2003 5/85 JUDGMENT Criminal Misc. Application No. Name of Court Criminal Case No. Offence U/s. 6967/2003 JMFC, Gondal. 1407/200 3 295-A, 296, 298, 120-B. 7015/2003 JMFC, Gondal. 890/2003 295-A, 296, 298. 7016/2003 JMFC, Gondal. 919/2003 295-A, 296, 298. 7017/2003 JMFC, Gondal. 1086/200 3 295-A, 296, 298, 120-B. 7471/2003 JMFC, Babra. 123/2003 295-A, 504, 500, 114. 7472/2003 JMFC, Lathi. 127/2003 295-A, 504, 500, 114. 7885/2003 JMFC, Ankleshwar. 2116/200 3 295-A, 504, 500, 114. 2504/2004 JMFC, Bhavnagar. 7780/200 3 295-A, 504, 500, 114. 2505/2004 241/2003 295-A, 504, 505, 506 (2), 508, 406, 114. 2506/2004 JMFC, Bhachau. 299/2003 295, 298, 114. 2507/2004 JMFC, Liliya. 64/2003 295-A, 504, 500, 114. 2508/2004 JMFC, Babra. 123/2003 295-A, 504, 500, 114. 2509/2004 JMFC, Lathi. 127/2003 295-A, 504, 500, 114. 5141/2004 JMFC, Anjar. 198/2003 295, 298 & 114. 9572/2004 JMFC, Gondal. 596/2004 120-B, 511. 9573/2004 JMFC, Gondal. 597/2004 120-B, 511. 9574/2004 JMFC, Gondal. 598/2004 120-B, 511. 3.Since most of the arguments are canvassed by the learned advocates in Cri. Misc. Application No. 6967/2003 and since in the said application, prayer was made for quashing and CR.MA/4518/2003 6/85 JUDGMENT setting aside the Criminal Case No. 1457/2003 wherein as many as 19 accused were impleaded out of whom some were also accused either in one or other complaints, the facts are taken from the said application for the sake of convenience. 4.It is the case of the petitioners that the complaint was filed on account of publication entitled “Ashubh” published by Divine Club, Modern Printery Graphics wherein according to the complainant, defamatory statements were made against Pujya Pandurang Shashtriji and Jayshrididi. Besides, in the publication, a copy of plaint of Suit No. 567 of 2002, the written statement filed by the defendant Nos. 1 to 3 and signed by Dhanshri Shrinivas Talvalkar and her husband Shrinivas Talvalkar and Nitinbhai, through their power of attorney, one Shri Bharatbhai Vijaybhai Bhatt on 22.11.2002 and affidavits and newspaper articles were CR.MA/4518/2003 7/85 JUDGMENT reproduced. 5.Civil Suit No. 567 of 2002 was filed in the Court of Civil Judge (S.D.), Ahmedabad (Rural) inter alia, by Shri Pankajbhai Hariprasad Trivedi, Suryakantbhai Narottamdas Mehta and Pradip Govindlal Shah who are impleaded as accused in almost all complaints, against Tatvagyan Vidyapith, a Regd. Trust under the provisions of the Bombay Public Trust Act and having its Registration No. E-1318 (Bombay) having its Trustees, namely, Smt. Dhanshri Shrinivas Talvarkar, Shri Shrinivas Talvarkar, Shri Nitibhai Thakkar, Shri Dashrathbhai Mahadeviya and Shri Kantibhai Pandya (Pujari), seeking declaration and permanent injunction as prayed for in the said suit, inter alia, to the effect that the plaintiffs may not be restrained from darshan of the Yogeshwar Temple situated at Bhavnirzar, Opp. ISRO, Satellite Road, Ahmedabad. The said suit was followed by CR.MA/4518/2003 8/85 JUDGMENT an application for injunction. The said suit was disposed of on a preliminary contention of lack of jurisdiction. The plaintiffs therein were envisaging to file proceedings before the higher Court challenging the said order. 6.Subsequently, Civil Suit No. 88 of 2003 came to be filed by Shri Suryakant Narottamdas Mehta and others against the Tatvagyan Vidyapith and its Trustees in the Court of Civil Judge (S.D.), Ahmedabad (Rural). The said suit was filed, inter alia, seeking injunction that the property situated and popularly known as Bhav Nirzar on the hill top of Satellite Road, Opp. ISRO, Ahmedabad be not sold, transferred or disposed of. The said suit was accompanied with an application for injunction and it is still pending. 7.Subsequent to filing of the aforesaid suits, in and around April 2003, a chain of criminal CR.MA/4518/2003 9/85 JUDGMENT complaints came to be filed against certain common group of persons who have actively been participated in the aforesaid civil suits. Such criminal complaints have been filed in the Courts of Lathi, Ankleshwar, Bhavnagar, Anjar, Una and Gondal. The applicants of all the present applications were apprehending further filing of such complaints which essentially fell within the provisions of Sections 295, 295-A, 298, 296, 500, 504 read with Sections 114 and 120-B of IPC amongst other provisions. The plain reading of these complaints makes it clear that many of the complaints are nothing but identically worded complaints, save and except the change in the name of the complainant and Court. This clearly establishes the vexatious motive in filing separate complaints at far away places, only with a view to cause undue harassment to the accused persons. CR.MA/4518/2003 10/85 JUDGMENT 8.It appears from the averments made in the complaints that the publication of the booklet under the title 'Ashubh' is the essence of the subject matter of each of these 21 complaints that have been preferred in the State of Gujarat. The modus operandi adopted by the complainants in several other cases is to pressurize and threaten the accused persons. Around 35 to 40 complaints were also filed in the State of Maharashtra. The allegations made in the complaints are non-specific, general, too vague and are not attributed to the particular accused. The entire booklet 'Ashubh', even if it is read as a whole, it is neither defamatory, nor any motive is attributed in any manner to cause hurt to a religious feeling. The complainants do not form any group such as religious domination. Nothing stated in the alleged booklet Ashubh is either to cause outrage of religious feelings by insulting the religion or religious belief. CR.MA/4518/2003 11/85 JUDGMENT What the complainants are following is neither a religious domination much less a religion or a religious belief. The booklet 'Ashubh' conveys no defamatory remarks. It merely contains the transaction of the pleadings placed in the Court proceedings and hence, the same cannot be termed to be defamatory in nature. 9.Mr. R.K. Shah with Mr. K.J. Shethna, learned advocates appeared in almost all matters except Cri. Misc. Application No. 7885 of 2003 and 5141 of 2004 wherein learned advocates Mr. T.S. Nanavati, Mr. B.B. Naik with Mr. D.S. Vasavada, learned advocates appeared for the petitioners respectively. As far as respondents – original complainants are concerned, Mr. P.M. Thakkar, learned Senior advocate with Mr. H.R. Prajapati and Mr. P.J. Bhatt appeared whereas on behalf of the State of Gujarat, Mr. A.D. Oza, learned Public Prosecutor and Mr. H.L. Jani, learned CR.MA/4518/2003 12/85 JUDGMENT Assistant Public Prosecutor appeared. 10.In the above background of the matter, the learned advocates appearing for the petitioners have submitted that Swadhyaya parivar has several Public Charitable Trusts and their activities are confined to Charitable objects mentioned in the said Trusts. Beyond several trusts, they have no other organization. In order that a body of persons might form a class, there must be a principle of classification. It is nowhere pleaded or alleged or explained in the complaint that such class is formed. The word “Dharmic” alleged in the complaint does not fall within the purview of Sections quoted. The meaning of Swadhyaya Parivar is a family of Swadhyayees and a family cannot constitute a class. The question, therefore, of insulting the religion or the religious beliefs of a class of citizen which is the requirement of sections does not arise. CR.MA/4518/2003 13/85 JUDGMENT All these things having not been alleged, the complaint is liable to be quashed. 11.It is further submitted that Swadhyaya has no rituals, no fixed prayer, no binding beliefs, no declaration of faith, no oath, no condition for doing activities and no discipline by birth or otherwise. All who are engaged in self study are Swadhyayees. Swadhyayees can worship any God. There are no restrictions. It is not a class of citizens with any particular religion or religious beliefs. It is very pertinent and important and interesting to note that in the booklet, the Trustees against whose actions, suit was filed in the Court, have themselves alleged that there is no temple of Yogeshwar but only a prarthana Hall for limited number of students of Bhavnirzar. This wholly supports the submissions of the petitioners. 12.It is further submitted that outraging as CR.MA/4518/2003 14/85 JUDGMENT provided in Sections 295A which is not even alleged is a stronger word than wounding and the intention to outrage is malicious as well as deliberate and is directed to a class of persons and not merely to an individual. No such class is alleged. The booklet at the most shows grievance against the Trustees. It is, therefore, submitted that even if there is promotion of enmity between the followers of different religions which is not the case here does not come within the purview of this section. The complainants have not explained about any religion and class of persons. Material facts relating to offence are totally absent. The booklet does not insult any class of citizens or any religious body. The booklet is to be reviewed as a whole and the intent of the author is to be gathered from a broad perspective and not from a few solitary line or questions or heading out of context. The publisher had no malicious intention towards a CR.MA/4518/2003 15/85 JUDGMENT class but possibly grievance against individuals, namely, Trustees for closing down the temple. 13.It is further submitted that no offence or any ingredient thereof has been made out in any of these complaints. No jurisdiction has been shown to arise in the Courts where the complaints have been filed. The petitioners are themselves members of Swadhyaya parivar and merely because they have got some other views on the administration of the Trusts of Swadhyaya Parivar and on the manner in which the work was being done, that does not mean that so called religious feelings or beliefs of the complainants are outraged or insulted. The allegations made do not fall within the purview of the sections relied upon. 14.So far as the publication of booklet is concerned, except a bare allegation that the CR.MA/4518/2003 16/85 JUDGMENT petitioners have published the said booklet no material facts relating to publication have been given therein. The petitioners have no connection whatsoever direct or indirect with publication of the booklet or otherwise. The complaints refer to the booklet which pertains to some litigation in relation to the temple of Yogeshwar, Shiva Parvati and Ganesh constructed on the premises given by Government to the trust of Swadhyaya Parivar. The proceedings were in respect of the suit filed by some of the petitioners in the Civil Court in Ahmedabad. They have alleged that there was no temple of Yogeshwar visited by public whereas the trustees have alleged that there is only a prayer hall. The question raised in the booklet is whether the Bhavnirzar temple will die or whether the deities are closed in the showcase. 15.It is further submitted that Sections 295A etc. are intended to respect the religious CR.MA/4518/2003 17/85 JUDGMENT susceptibilities of persons of different religious pursuits. In the present group of cases, the petitioners and the complainants all are devotees of Lord Yogeshwar and the publisher wants the temple to be kept alive. The question of insulting the feeling does not arise in the least as there are no different classes and no different religions. The simple and innocent expression of opinion on the working of the trusts of Swadhyaya Pariwar will not bring the act of the publisher within the parameters of the sections in question. The difference between the persons of the same family is as to whether Bhav Nirzar temple is a temple or prarthana Hall, whether the deities are closed in showcase or to be worshiped by member of Swadhyaya Pariwar. While raising such issues, no religion is involved but only a matter of opinion as to whether the Trusts belong to Dada and Didi or they belong to public and/or whether there could be concept of CR.MA/4518/2003 18/85 JUDGMENT ownership in the amounts lying with the Trusts when the monies are donated over 50 years by lacs of persons for the objects of the Trusts and whether the Trusts can be run in an arbitrary and autocratic manner and whether Didi can issue directions to the effect that the persons who should have difference of opinion as to directions given by her should be suffocated and/or strangulated and/or should not be permitted to do any activities even by using violence. It is further submitted that it is the religious feelings of the petitioners and others which have been injured on account of closure of temple Bhavnirzar in Ahmedabad by the Trustees and on account of the religious feelings being injured, they filed suits against the Trustees who have closed the temple from Monday to Saturday and kept open on Sunday only. It is only because of this, several devotees were injured by that action of closing the temple for 6 days in a week. Instead of CR.MA/4518/2003 19/85 JUDGMENT appreciating these feelings of hundreds of devotees, false complaints were filed against the petitioners to harass them by false and frivolous complaints. None of the petitioners have ever visited places where the complaints were filed to speak about the allegations as per Section 298 of I.P.C. and there is no question of wounding the religious feelings of any person. The entire complaint is based upon Section 499 & 500 of Cr.P.C. It is nothing but camouflage and to take out the case therefrom, section 298 has been referred to in the complaint. It is clearly the case of defamation, but the defamation is of Pandurang Shashtriji, Didi and/or other Trustees and as per law, only any one of them can file a complaint under Sections 499, 500 of I.P.C. and not the present respondents. It is, therefore, submitted that looking to the averments and allegations made in the complaints, Sections 298 and 299 are not applicable to the facts of CR.MA/4518/2003 20/85 JUDGMENT the present case and all contentions raised therein are false and, therefore, the complaint in question is required to be quashed and set aside. 16.An affidavit-in-reply is filed by the respondent No. 1 wherein it is stated that the complaints filed by the complainants make out that the accused have committed offence under IPC. All Swadhyayees worship Lord Yogeshwar (Shree Krishna), Lord Shankar, Lord Ganpati and Goddess Parvati and all swadhyayees are having photos of such Gods and Goddess in their houses. The Photos of Gods and Goddess are the object which are held sacred by Swadhyayees. The accused, in collusion and in connivance with each other and as a part of criminal conspiracy, published and circulated/propagated the booklet in such a manner that it has injured and defiled the religious feelings of Swadhyayees and thereby insulted the religious CR.MA/4518/2003 21/85 JUDGMENT feelings followed by Swadhyayees. The accused, with deliberate and malicious intention of outraging the religious feelings of Swadhyayees, by doing such acts as mentioned in the criminal complaints, insulted the religions and religious beliefs of Swadhyayees. The religious feelings of other Swadhyayees are also insulted and wounded up because of the criminal act of the accused as stated in the criminal complaint. Many Swadhyayees have filed their affidavits before the Ld. JMFC, Gondal with respect to the commission of offence by the accused. 17.It is further stated in the reply that the accused persons who were interested to see that religious feelings of the Swadhyayees are insulted and wounded up and with such intention in their mind, deliberately, they published and made propaganda of such booklets. The accused have circulated such booklets in many parts of CR.MA/4518/2003 22/85 JUDGMENT the country and till date they are circulating. There is sufficient evidence to show that the accused are behind such printing and publication and circulation of such booklet. The irrelevant aspects about the management of Trust and its Trustees have been stated in the application which has nothing to do with the merits or demerits of the criminal complaints filed by the complainants. It is further stated that because of security and protecting the life of several Swadhyayees who are imparting educations in Agricultural College and its students and those who are residing within the area of 'Bhavnirzar', it was decided to close down the prayer hall of 'Bhavnirzar' for rest of days except Sunday. After the attack on religious place 'Akshardham' at Gandhinagar on 24.09.2002 by terrorists, office of Police Commissioner, Mumbai received a threat from terrorists on 14.10.2002 which was published in Marathi daily Newspaper 'Vartahar', according CR.MA/4518/2003 23/85 JUDGMENT to which name of Adarniya Dada Shri Pandurang Shastriji Aathawale was there in the hit list amongst others. There was a serious apprehension that terrorist might attack on Bhavnirzar and hence, it was decided to close down prayer hall for public at large from Monday to Saturday and it was decided to keep only the prayer hall only on Sunday with full security provided by Swadhyayees themselves. Thus, for the security purpose and with a view to save and protect the life of many students of Agricultural College, it has been decided to close down prayer hall for public at large except Sunday. Since the personal feelings of accused persons were hurt due to closing down of prayer hall of Bhavnirzar from Monday to Saturday, they started printing and publishing and propagating against Bhavnirzar and while doing so, they have crossed their limit by insulting and wounding the religious feelings of several Swadhyayees by circulating booklets CR.MA/4518/2003 24/85 JUDGMENT titled as 'Ashubh' and then there is a photo of Lord Yogeshwar (Shree Krishna) and then 'Bhavnirzar Mandir Nu Mrutyu'. 18.It is further stated that the complaint is not merely filed for the offence punishable under Sections 499 or 500 of IPC nor under Section 299 of IPC as stated in application. The petitioners have committed the offence under IPC and there is a prima facie material to prove the charge made against them. The criminal complaints filed by the complainants are required to be tried in accordance with law and such criminal complaints are not required to be quashed in exercise of the powers conferred under Section 482 of Cr.P.C. Since the allegations made in the complaints prima facie disclose the offences committed by the petitioners, the complaints are not required to be quashed and set aside. CR.MA/4518/2003 25/85 JUDGMENT 19.An affidavit-in-rejoinder is also filed by some of the petitioners. The petitioner No. 1 i.e. Jagdish M. Shah has stated that there was no reply to the preliminary objection raised by the petitioners. The complaint of the complainants is per-se, bad in law and is in contravention of the provisions of Section 196 of the Code of Criminal Procedure as no permission of the Central Government or the State Government was obtained prior to filing of the said complaint under Section 295A of IPC. The learned Magistrate should have been vigilant of this preliminary requirement and should not have taken any cognizance of the same. Only on this count, the complaints are required to be quashed and set aside. Merely taking the different wordings of the Section and reproducing the same does not help the complainants to sustain their complaints. The booklet merely contains the proceedings of the Civil Suit No. 567 of 2002 in the Court of CR.MA/4518/2003 26/85 JUDGMENT Civil Judge (S.D.), Ahmedabad (Rural) and some press notes. Suit proceedings are in respect of closure of Bhavnirzar temple of Shri Yogeshwar. The booklet further gives publisher's name as Divine Club with which the petitioners have no connection. It also gives printer's name as Modern Printographics with which the petitioners have also no concern or association. The entire theme of the said booklet is closing down of the Temple of Bhavnirzar and the publisher's have repeatedly said at many places therein that it is the centre of their faith. According to them, Yogeshwar is God and they are devotees visiting the temple of Yogeshwar and as such, it is their right to have access to that temple. They have never meant nor they can think of disrespecting Yogeshwar or hurt anybody's feelings. On the contrary, they said that it was hurting their feeling being prevented to go to that temple. They are scared by that idea CR.MA/4518/2003 27/85 JUDGMENT and have expressed their fear with posing a question whether the said temple will be 'dead'? which means that by closing down of the said temple and also by denying the fact of there being any temple, will it be considered as 'dead'? At the same