IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.775 OF 2001. WRIT PETITION NO.775 OF 2001. WRIT PETITION NO.775 OF 2001. Universal Music India Pvt. Ltd. ..Petitioner. versus 1. Mohd. Farooque Azam. 2. State of Maharashtra. ..Respondents. .... Mr.Girish Kulkarni with Rajesh Rathod, i/b. M/s. Bilwala & Co. for the Petitioner. Mr. Y.S.Shinde, APP, for the Respondent No.2. None for the Respondent No.1. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 28TH JULY,2008. : 28TH JULY,2008. : 28TH JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the leaned Counsel appearing for the Petitioner were heard on 24th July 2008. as none appeared for the first Respondent on that date, the Judgment was not delivered and the Petition was adjourned. Today when the Petition was called out, none appears for the first Respondent. 2. The Petitioner has filed this Petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973. The first Respondent filed a private complaint alleging the commission of offences under section 295-A, 298 read with section 34 of the Indian Penal Code. The first Respondent arraigned all the Directors of the - 2 - Petitioner as accused in the said complaint, apart from the Singer of a song (first accused). 3. The first Respondent is the President of Mumbai Regional Muslim League. In the complaint, it is stated that on 8th May 2001 the first respondent saw a cover of a cassette produced by the Petitioner of songs written and presented by the Accused no.1. It is stated that in the said song, the name of the Prophet who was known as "Nabi" was used in a defamatory manner. The case of the first Respondent is that he purchased the said cassette from a shop. He stated that the said cassette was played on a tape-recorder and he heard the songs on the cassette. It is alleged that the words used in the songs were defamatory of the Prophet. It is alleged that the songs were deliberately sung by way of a malicious act to outrage the feelings of Muslim community and for insulting the religion of Islam. It is further alleged that the accused purposely for the sake of monitory gains uttered the words "Nabi Buba Nabi" in dancing manner, thereby defaming the Holy Prophet and his Wali-Ali. The Accused tried their level best to lower down the character of the Prophet and his Wali. The first Accused is allegedly a Composer and the Singer of the said songs. - 3 - 4. By an order dated 31st May 2001, the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai, issued process against both the Accused for offences under section 298 read with section 34 of the Indian Penal Code. On an application made by the first Respondent, an order was passed on the very day by the learned Magistrate directing the Senior Police Inspector of Andheri Police Station to take search of all the suspected places in the entire Greater Mumbai and seize audio and video cassettes. These are the two orders which are the subject matter of challenge in this Petition. 5. The learned Counsel appearing for the Petitioner invited my attention to assertions made in the complaint. He submitted that on plain reading of the complaint as well as verification statement of the first Respondent - Complainant, by no stretch of imagination, an offence under section 298 of the Indian Penal Code was made out. He submitted that even going by the order passed by the learned Magistrate, a process under section 298 of the Penal Code could not have been issued. In any case, he submitted that taking the averments made in the complaint for its face value, no offence as against - 4 - the Directors of the Petitioner was made out. He submitted that the other order passed by the learned Magistrate on 31st December 1995 of issuing search warrant under section 95 of the said Code was completely illegal and without jurisdiction. 6. It will be necessary to refer to the material averments made in the complaint. The paragraph nos.4 to 7 of the complaint are only the relevant paragraphs which read thus :- "4. I say that my said man Mr.Bablu brought the said cassettes at M/s. Raja Radio Electronics, A.K.Road, Andheri (E), Mumbai-400 069, and handover the same to me. Thereafter the said cassette was played in the tape recorder at the said shop and I heard the songs of the cassette. Thereafter I felt the words used in the song are defamatory regarding to prophets Mohd. Sahab and his Wali-Ali. The said song were deliberately by the malicious act was sang to outrage the religious feeling of Muslim community, for insulting the religious of Islam and religious beliefs. - 5 - 5. I say that the Accused purposely, knowingly for the sake of monetary gains uttered the words "NABI BUBA NABI" in dancing manner for defaming the holy prophets Mohd. Sahab and his Wali-Ali by odd-pose-odd-picture for which the Muslim community has been effected much and the Accused tried their level best to lower-down the character of Mohd-Sahab and his Wali-Ali in the said Audio Cassette and the Video Cassette by which the Muslim’s religious feelings are tortured. 6. I say that I shall crave leave the cover of Audio Cassette with the photo of Daler Mehndi in which the defamatory song is also mentioned, such as "Nabi Buba Nabi", hereto annexed and marked as "Exhibit-B" is the Xerox copy of Cover of the Cassette (Audio). 7. I say that the Accused No.1 is the composer and the Singer of the Song i.e. fully defamatory for the Islam religion and the said Song is "Nabi Buba" which is against the prohphet Mohd. Sahab and his Wali in which the personality and ideology of Mohd. - 6 - Sahab and his Wali were knowingly defamed, which wound the religious feelings of Muslims." 7. It will be also necessary to refer to the verification statement of the first Respondent the material part of which reads thus :- "At the abovementioned shop i.e. Raja Audio & Electronics, the said Cassette "NABI BUBA NABI" was played in tape recorder and the song "NABI BUBA NABI" was heard there. Thereafter I felt the words used in the song are fully defamatory in respect of Prophet Mohd. Sahab and his Wali-Ali, and the said song was deliberately by the malicious act was sang to outrage the religious feeling of Islam and religious beliefs. And the words of song were uttered "NABI BUBA NABI" in dancing manner for defaming the holy Prophets Mohd. Sahab and his Wali Ali by odd pose/ odd-picture for which Muslim Community has been affected must and in the song by Accused No.1 tried his level best to lower down the character of Mohd. Sahab and his Waku Ali in his Audio and Video Cassettes." - 7 - 8. The averments made in paragraph no.4 of the complaint are regarding the deliberate malicious act alleging commission of an offence under section 295-A of the Indian Penal Code. The learned Magistrate has himself declined to issue a process under the said section. The allegation made in paragraph no.5 of the complaint is of defamation. Paragraph No.6 also refers to the song as a defamatory song. In paragraph no.7, the allegation made is only against the Accused no.1 in which it is stated that the Accused no.1 knowingly defamed the personality and ideology of the Prophet and his Wali, which wounded the religious feelings of the Muslims. 9. Now coming to the verification statement, the first part of the statement, at highest, makes out a case for an offence under section 295-A of the Indian Penal Code. The second part of the verification statement is only against the Accused no.1. 10. It will be necessary to refer to section 298 of the Indian Penal Code which reads thus :- "298. 298. 298. Uttering words, etc. with deliberate Uttering words, etc. with deliberate Uttering words, etc. with deliberate intent intent intent to wound religious feelings of any to wound religious feelings of any to wound religious feelings of any - 8 - person.- person.- person.- Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both." 11. The necessary ingredient of section 298 is that there has to be a deliberate intention of wounding the religious feeling of any person. Neither in the complaint nor in the verification statement, there is any such specific allegation against the Directors of the Petitioner or the Petitioner. There is not even an allegation against the Petitioner or its Directors that there was any deliberate intention on their part of wounding the religious feelings of any person. 12. Now turning to the order passed by the learned Magistrate, it appears that he came to the conclusion that the Court had no jurisdiction to take cognizance of an offence under section 295-A of the - 9 - Indian Penal Code for want of sanction. However, the learned Judge observed that he had jurisdiction to take cognizance of an offence under section 298 read with section 34 of the Indian Penal Code. Even the learned Judge has not recorded a finding that prima-facie, the ingredients of an offence under section 298 were made out against the petitioner-Company. Taking the assertions made in the complaint as well as in the verification statement for its face value, there was no prima-facie case made out to issue process against the Petitioner. It must be noted here that in the complaint, the Petitioner Company is not arraigned as an accused. The accused no.2 is described as "All the Directors of M/s. Universal Music India Ltd." Unless the Directors were specifically named in the complaint, process could not have been issued. No Director has been named even in the vertification statement. That is one mere reason to come to the conclusion that the order of issue of process is illegal. 13. Now turning to the order passed by the learned Magistrate of issuing a search warrant under section 95 of the said Code, it must be said here that on plain reading of section 95 of the said Code, - 10 - the same was not applicable. The condition precedent for exercising the power under section 95 is a publication of a declaration by the State Government in a Gazette. Obviously, there was no such notification issued by the State Government. Therefore, even the said order deserves to be quashed and set aside on the ground that the same is completely illegal. 14. Hence, I pass following order :- (1) The order passed by the learned Magistrate of issuing process is quashed and set aside in so far as the second Accused is concerned. (2) The order passed by the learned Magistrate directing the search and seizure of audio and video cassettes of "Nabi Buba Nabi" stands quashed and set aside. (3) Rule is made absolute in above terms with no orders as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]