CRIMINAL MISCELLANEOUS No.12210 OF 2001 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.BASUDEO PRASAD son of Sri Ram Chandra Prasad Sah 2. Ajoy Kumar son of Sri Basudeo Prasad Both resident of Mohalla- Dariyapur Gola, Patna-4, P.S.- Kadam Kuan, Dist.-Patna …… …….Petitioners Versus STATE OF BIHAR ……. …….Opp.Party. ------- For the petitioners: Mr. Salahuddin Khan Mr. Baban Sharma For the State : Mr. Shiwesh Chandra Mishra, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar,J. Two petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 6.1.2001 passed by Judicial Magistrate, Ist Class, Muzaffarpur in Town P.S. Case No.217 of 2000/T.R. No.646 of 2001 whereby the learned Magistrate, has taken cognizance of the offence under section 295A of the Indian Penal Code. 2. Short fact of the case is that on self statement of Inspector of Police-cum-Officer incharge of Town Police Station, Muzaffarpur a first information report vide Town P.S. Case No.217 of 2000 was registered for the offence under section 295A of the Indian Penal Code. It was disclosed in the first information report that on 11.7.2000 the informant received telephonic information that in a book and stationary shop in the name and style of Gyan Ganga and Anand Book and Stationary Shop some copies are being sold on the covers of those copies some religious scripts in Arabic and 2 photographs of some religious places were printed. Thereafter, the investigating officer conducted a search and seized 34 copies on which photograph of some religious places, God-Goddess and scripts in Arabic were printed. Thereafter, the book sellers were arrested. It further appears that book sellers made statement before the investigating officer that those copies were supplied by both the petitioners. Accordingly, the petitioners were also arrested and made accused. After conducting investigation chargesheet was submitted and, thereafter, by the impugned order the learned Magistrate has taken cognizance of the offence under section 295A of the Indian Penal Code. 3. Aggrieved with the order of cognizance, both the petitioners approached this court by filing the present petition which was admitted on 19.12.2001. While admitting the case it was directed that during the pendency of this application, further proceeding in Town P.S. Case No.217 of 2000/Trial No.646 of 2001 pending in the court of Judicial Magistrate, Ist Class, Muzaffarpur, shall remain stayed. The order of stay is still continuing. 4. Mr. Salahuddin Khan, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, has submitted that on perusal of the contents of the first information report no offence under section 295A of the Indian Penal Code is made out. While pressing this point, it was argued that for application of section 295A it is mandatory that there must be deliberate and malicious intention of outraging religious feelings. It was submitted that only averment made in the first information report is that over the cover of some copies some scripts of some religion as well as 3 photographs of some religious places and God-Goddes were printed. It has never been indicated that by printing such materials there was any intention to outrage the religious feelings of any community. It was submitted that by printing such materials over the cover of copies it can be assumed that steps were taken to strengthen the feelings in certain religion of the society and not to insult or outrage the feelings of any member of the society. It has further been submitted that it is a peculiar case in which first information report was lodged on self statement of Inspector of Police, who became informant and same person after registering first information report, had investigated the case and thereafter charge sheet was submitted. It has further been submitted that the learned Magistrate without applying his mind in a mechanical manner has passed the order of cognizance. Learned counsel for the petitioners, while referring section 196 of the Code of Criminal Procedure, has submitted that it was mandatory on the part of the learned Magistrate to examine as to whether sanction for prosecution was issued by the competent authority before taking cognizance of the offence under section 295A of the Indian Penal Code. It was submitted that in this case no valid sanction was brought on record and, as such, in absence of valid sanction the learned Magistrate was not authorized to take cognizance of the offence under section 295A of the Indian Penal Code. It has also been submitted that even for the time being if it is assumed that there is some ingredients of offence under section 295A of the Indian Penal Code, in the present case there is no material for proceeding against these petitioners. It was submitted that name of these petitioners have been brought in the present case on the basis of statement of an 4 accused made before the police, which is not admissible in the eye of law. On the aforesaid grounds prayer has been made to quash the order of cognizance as well as entire prosecution. 5. Mr.Shiwesh Chandra Mishra, learned Additional Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of the petitioners. It has been argued that it is not the stage for this court to examine all those materials. It has been argued that the points which have been taken by learned counsel for the petitioners before this court can well be examined or raised before the court below at an appropriate stage. Accordingly, it has been prayed to reject the present petition. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. From the impugned order itself it is evident that the learned Magistrate had not examined as to whether prosecution sanction as statutorily provided under section 196 of the Code of Criminal Procedure was available on the record. After going through the order impugned, the court is of the opinion that order of cognizance was passed without sanction for prosecution issued by the competent authority. So far as allegation made in the first information report is concerned, on perusal of the first information report the court is of opinion that there was hardly any material to indicate commission of offence under section 295A of the Indian Penal Code. It would be appropriate to quote provision of section 295A of the Indian Penal Code, which is as follows: 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging 5 the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempt of insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 7. On perusal of the aforesaid provision, it is evident that for the purpose attracting this provision it is to be established that there was deliberate and malicious intention of outraging religious feelings of any member or community of society. From the contents of the first information report it is clear that this ingredient was wanting. Only allegation was made that on the cover of certain copies some religious scripts, photographs of some God-Goddess and religious places were printed. This does not indicate that object of the accused persons were intended deliberately to outraging religious feelings. On the basis of materials on record as well as in absence of prosecution sanction as prescribed under section 196 of the Code of Criminal Procedure, the court is satisfied that the impugned order of cognizance is not sustainable in the eye of law. 8. Accordingly, order of cognizance dated 6.1.2001 passed by the Judicial Magistrate, Ist Class, Muzaffarpur in Town P.S. Case No.217 of 2000/Trial No.646 of 2001 is hereby set aside and the petition stands allowed. Patna High Court, The 23rd September, 2010 Md.S./NAFR ( Rakesh Kumar, J.)