HON’BLE MR.JUSTICE R. SUBHASH REDDY Criminal Petition No.5971 of 2008 Date: December 7, 2011 Between: Sri M.Karunanidhi, S/o.late Muthuvelar, aged about 84 years, Occ: Chief Minister of Tamilnadu, Secretariat, Chennai, Tamilnadu … Petitioner And State of Andhra Pradesh, rep. by its Public Prosecutor, High Court, Hyderabad and another … Respondents Order: This criminal petition is filed under Section 482 of the Code of Criminal Procedure, 1973 to quash the proceedings in C.C.No.373 of 2007 on the file of the learned Judicial Magistrate of I Class, Adoni. The 2nd respondent herein has filed a complaint before the Judicial Magistrate of I Class, Adoni under Section 200 Cr.P.C., against the petitioner who was the than Chief Minister of Tamilnadu, alleging that he has committed offences punishable under Sections 295, 295 (A) and 298 of the Indian Penal Code, 1860. The learned Magistrate, after recording oral evidence, passed order dated 04.10.2007 in C.F.R.No.4586 of 2007, taking cognizance against the petitioner for the offences punishable under Sections 298, 153(A) and 505(2) IPC. The 2nd respondent/complainant is a practicing Advocate at Adoni. In the private complaint filed by him, it is stated that he hails from a respectable family, is a follower of Hindu Religion and a regular reader of the Ramayana and the Mahabharatha. It is stated that he has immense faith on Hindu Religion and also on God Rama. It is further stated that, on 18.09.2007, he read a paper statement published in Andhra Jyothi Telugu daily newspaper in which the statement made by the petitioner is stated to have been published. It is alleged that the petitioner has intentionally insulted God Rama by making a statement to the following effect: “About a lakh of years ago, it seems, there was person by name Rama and Rama Sethu was built by him; why should it be not touched; Rama is not a graduate from any Engineering College” It is further stated that, on 21.09.2007, petitioner, again, made a statement which is published in Eenadu Telugu daily newspaper stating that “Rama is a drunkard”. It is alleged that such statements are made by the petitioner intentionally to outrage the religious feelings of Hindu Religion, with a mala fide intention to insult Hindu Religion and to degrade it. In the complaint, it is alleged that, by making the aforesaid statements, petitioner committed offences punishable under Sections 295, 295(A) and 298 IPC. The learned Magistrate, by recording oral evidence and by referring to newspaper cuttings, has taken cognizance against the petitioner for the offences under Sections 298, 153(A) and 505(2) IPC. The learned Magistrate has recorded a finding that he cannot take cognizance of the offence under Section 295(A) in absence of previous sanction of the Government, as required under law. In this petition, petitioner is seeking to quash the proceedings in C.C.No.373 of 2007 registered on the file of the Judicial Magistrate of I Class, Adoni, mainly on two grounds. It is submitted by Sri C. Padmanabha Reddy, learned senior counsel, appearing for the petitioner that, to take cognizance of the offences under Sections 153(A) and 505(2) IPC, prior sanction is necessary in view of the provision under Section 196 Cr.P.C. It is further submitted that in absence of any allegation and evidence of uttering words or making any sound against Lord Rama in the hearing of the complainant, no case is made out to take cognizance for the offence under Section 298 IPC against the petitioner. In support of his submissions, learned counsel for the petitioner has placed reliance on a judgment of the Gujarat High Court in the case of Shalibhadra Shah and others v. Swami Krishna Bharati and another[1]. On the other hand, it is submitted by the Additional Public Prosecutor appearing for the 1st respondent and also the counsel for the 2nd respondent, that as much as there is an allegation of uttering words by the petitioner- accused with an intention to wound the religious feelings of Hindu Religion, a prima facie case is made out to take cognizance under Section 298 IPC. Insofar as obtaining sanction as contemplated under Section 196 Cr.P.C., is concerned, it is submitted that as much as petitioner- accused himself was the Chief Minister of Tamilnadu during the relevant time; as such it is practically impossible to obtain sanction as required under law. Having heard learned counsel on both sides, I have perused the order dated 04.10.2007 passed in C.F.R.No.4586 of 2007 and also a copy of the complaint filed by the 2nd respondent before the learned Magistrate. The complaint is basically filed on the alleged statements of the petitioner published in Telugu daily newspapers, viz. Andhra Jyothi on 18.09.2007 and Eenadu on 21.09.2007. A reading of the complaint and the order passed by the learned Magistrate would go to show that there is no allegation of deliberate intention on the part of the petitioner to hurt the religious feelings by uttering any word or by making any sound in the hearing of the complainant. A perusal of the provision under Section 298 IPC makes it clear that uttering of words, as used, should be in the hearing of the person who makes the complaint or making any gesture in the sight of such person. In absence of any such allegation of uttering any such words by the petitioner in the hearing of the complainant or making any gesture by him in the sight of the complainant, no case is made out to take cognizance for the offence under Section 298 against the petitioner. In the judgment relied on by the learned senior counsel appearing for the petitioner, referred to supra, the scope of Section 298, which fell for consideration, it is held as under: “There is no dispute before us that the averments made in the complaint relate to an article which appeared in the issue of “AASPASS” dated 31st July, 1977. Both the complaints are based on the remarks made against Acharya Rajnishji in the said article. It is nobody’s case that the said article was written in the presence of the first respondents in the two applications or anyone else. Section 298 makes it an offence if anyone 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. It is, therefore, obvious that it relates to oral words uttered in the presence of a person with the intention of wounding his religious feelings, and, therefore, it can have no application, as in the instant cases, the grievance relates to a written article which was published in the weekly of the petitioner. Therefore, Section 298 of the Indian Penal Code cannot be attracted and the process issued by the learned Magistrates dealing with the two complaints in question under Section 298 of the Indian Penal Code cannot be sustained. Similarly, the process issued by the learned Magistrates for the commission of an offence punishable under Section 295-A of the Indian Penal Code cannot be sustained as no prior sanction of the concerned Government was obtained as required by Sub-Section (1) of Section 196 of the Code of Criminal Procedure.” The learned Magistrate, while taking cognizance against the petitioner for the offence under Section 298, 153(A) and 505(2) IPC, has recorded a finding that cognizance cannot be taken for the offence under Section 295(A) IPC, in absence of any prior sanction from the Central Government, State Government or the District Magistrate concerned as required under law. At the same time, he lost sight of the provision under Section 196 and 196 (1A) Cr.P.C, which read as under: “196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.(1) No Court shall take cognizance of- (a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or 2*[Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860) or (b) a criminal conspiracy to commit such offence, or any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. [(1A) No Court shall take cognizance of- (a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]” In view of the provision under Section 196(1) (a) of Cr.P.C. it is clear that, even to take cognizance under Section 153(A) IPC, previous sanction of the Central Government or the State Government is necessary. Further, as per Section 196(1A) (a) no Court shall take cognizance of the offence under Section 505(2) IPC except with the previous sanction of the Central Government, State Government or the District Magistrate. In the case on hand, there is no dispute that there is no such sanction either by the Central Government, State Government or the District Magistrate to take cognizance against the petitioner for the offences under Sections 153(A) and 505 IPC. As the very taking of cognizance of the offence under Sections 153(A) and 505(2) IPC is contrary to Section 196 and 196(1A) of Cr.P.C., and as this Court is of the opinion that no case is made out for the offence under Section 298 IPC against the petitioner, even by taking the contents of the complaint filed by the 2nd respondent as it is, allowing prosecution against the petitioner is nothing but an abuse of process of law and will result in miscarriage of justice. For the foregoing reasons, criminal petition is allowed and the proceedings in C.C.No.373 of 2007 on the file of the Judicial Magistrate of I Class, Adoni, are quashed. ______________________ (R. SUBHASH REDDY, J) December 7, 2011 MRR [1] 1981 CRI.L.J 113