IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 666 of 2004 WITH SPECIAL CRIMINAL APPLICATION No.667 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 668 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 669 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 673 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 675 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 676 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 677 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 678 OF 2004 WITH SPECIAL CRIMINAL APPLICATION NO. 679 OF 2004 AND SPECIAL CRIMINAL APPLICATION NO. 680 OF 2004 WITH Criminal Misc. Application No. 6251 of 2004 in Special Criminal Application No. 666 of 2004 with Criminal Misc. Application No. 6281 of 2004 in Special Criminal Application No. 669 of 2004 with Criminal Misc. Application No. 6277 of 2004 in Special Criminal Application No. 673 of 2004 with Criminal Misc. Application No. 6285 of 2004 in Special Criminal Application No. 675 of 2004 with Criminal Misc. Application No. 6279 of 2004 in Special Criminal Application No. 677 of 2004 with Criminal Misc. Application No. 6272 of 2004 in Special Criminal Application No. 678 of 2004 with Criminal Misc. Application No. 6293 of 2004 in Special Criminal Application No. 679 of 2004 and Criminal Misc. Application No. 6282 of 2004 in Special Criminal Application No. 680 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- YASHWANT VENILAL SANGHVI Versus SAHDEVSINH DILUBHA ZALA -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 666 of 2004 MR KJ SHETHNA for petitioners MR YN OZA SR. ADVOCATE WITH MR RC JANI for Respondent No. 1 MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for Respondent No. 2 MR KAMAL TRIVEDI ADDL. ADVOCATE GENERAL for State of Gujarat. 2. Special Criminal Application No. 667 of 2004 MR KJ SHETHNA for petitioners MR KS NANAVATI SR. ADVOCATE WITH MR RC JANI for respondent No.1. MR PM THAKKAR WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 3. Special Criminal Application No. 668 of 2004 MR KJ SHETHNA for petitioners RULE NOT RECEIVED BACK for Respondent No.1. MR PM THAKKAR SR. ADVOCATE with MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 4. Special Criminal Application No.669 of 2004 MR KJ SHETHNA for petitioners. MR YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 5. Special Criminal Application No. 673 of 2004 MR KJ SHETHNA for petitioners. MR YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 6. Special Criminal Application No. 675 of 2004 MR SB VAKIL SR. ADVOCATE WITH MS. ARCHANA ACHARYA for petitioners. MR. YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 7. Special Criminal Application No. 676 of 2004 MR KJ SHETHNA for petitioners. RULE NOT RECD. BACK for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 8. Special Criminal Application No. 677 of 2004 MR KJ SHETHNA for petitioners. MR YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 9. Special Criminal Application no. 678 of 2004. MR KJ SHETHNA for petitioners. MR YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 10.Special Criminal Application No.679 of 2004. MR KJ SHETHNA for petitioners. MR YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. 11.Special Criminal Application no. 680 of 2004. MR KJ SHETHNA for petitioners. MR YATIN SONI for respondent No.1. MR PM THAKKAR SR. ADVOCATE WITH MR HR PRAJAPATI for respondent No.2. MR AD OZA PUBLIC PROSECUTOR for State. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE A.M.KAPADIA Date of decision: 16/08/2004 COMMON C.A.V. JUDGEMENT 1. In this batch of 11 petitions filed under Article 226 of the Constitution, petitioners against whom First Information Reports have been registered at various police stations of different Districts of State of Gujarat, details of which are shown below in this judgment, for alleged commission of offences mainly under Sections 295-A, 505 (c), 120-B and 114 of IPC, seek to challenge the registration of the said FIRs and have prayed to quash and set aside the said FIRs as also the investigation pursuant thereto, by issuing appropriate writ, order or direction to respondent No.3, State of Gujarat and its subordinate officers. 2. Common questions of law and facts are involved in this batch of petitions and FIRs which are sought to be quashed are filed for alleged commission of similar offences in all the FIRs by disciples of Swadhyaya Group headed by late Shri Pandurang Shastri Athavle. Further, the petitioners are almost common in all the petitions and, therefore, with the consent of the learned advocates appearing for the parties, all the petitions are heard together and decided by this common judgment. 3. In this batch of petitions, 11 FIRs are filed by the complainants at various police stations of different Districts of State of Gujarat which are sought to be quashed, the details whereof are as under: Sr. SCR.A CR Police Name of Name of No. No. No. Station complainant accused of of 2004 2004 --------------------------------------------------------- 1. 666 I-115 S'nagar Sahadevsinh Yashwant City Dilubha Zala Venilal Sanghvi and ors. 2. 667 I-47 Kotda Majbutsinh Yashwant Sangani Bachubha Venilal Jadeja Sanghvi and ors. 3. 668 I-83 Gandhi- Atulbhai Yashwant gram P. Raval Venilal Sanghvi and ors. 4. 669 II-3044 Prabhas Keshubhai Yashwant Patan Ramjibhai Venilal Vaishya Sanghvi and ors. 5. 673 II-3067 Keshod Bhavanbhai Yashwant Ghelabhai Venilal Limbasiya Sanghvi and ors. 6. 675 II-3026 Chorwad Najabhai Yashwant Ramabhai Venilal Ram Sanghvi and ors. 7. 676 II-3040 Prabhas Keshubhai Yashwant Patan Ramjibhai Venilal Vaishya Sanghvi and ors. 8. 677 I-70 Kamla- Rambhai Yashwant baug, Gangabhai Venilal Porb- Kadachha Sanghvi andar. and ors. 9. 678 I-290 Pradyu- Nileshbhai Yashwant man N. Rathod Venilal Nagar, Sanghvi Rajkot. and ors. 10. 679 I-65 Upleta Jagmalbhai Yashwant Nagabhai Venilal Bheda Sanghvi and ors. 11. 680 II-3051 Veraval Chhotalal Yashwant City Raghunath Venilal Gohel Sanghvi and ors. 4. In order to appreciate in better perspective and to adjudicate the controversy raised in this batch of petitions, it would be advantageous to refer to the facts stated in the complaint annexed to Special Criminal Application No.666 of 2004 wherein relief sought for is quashment of the FIR registered vide CR No.115 of 2004 at Surendranagar Police Station for alleged commission of the offences under sections 295-A, 505-C, 120-B and 114 of IPC. 5. The averments made in the FIR manifest that the informant Sahadevsinh Dilubha Zala ('the complainant' for short), a resident of Surendranagar, claims to be a disciple of Swadhyaya Parivar, the movement of which was started by late Shri Pandurang Athavle Shastri. It is alleged against the present petitioners, who, according to him, are the associates of "Jagrut Parivar", that they have printed and published a booklet having defamatory writings in the name of "Jagrut Parivar" by hatching conspiracy against Pandurang Athavle Shastri and religious activities of "Swadhyaya Parivar" and spreading the booklet and thereby they have committed offence of abetting each other to hurt religious feelings of "Swadhyaya Parivar" and to raise communal disputes and to create fear among people. 6. It is, inter alia, alleged in the complaint that the complainant is doing religious activities of Swadhyaya Parivar organized by Pandurang Athavle Shastri for the last 18 years. On 10.5.2004, at about 1 P.M. he received a printed book published by Jagrut Parivar at his address delivered by the postman of the post-office. On reading that booklet, he found that what is stated in the booklet is not the activity of Swadhyaya Parivar. According to him, an abusing language is employed therein mainly about Pandurang Athavle Shastri. On inquiring about the same he came to know that other persons of Swadhyaya Parivar have also received such books by post. It is stated in complaint that such writing in the book hurts the religious feelings of the persons doing and following religious activities of Swadhyaya Parivar. It is further alleged that the worst things are written about religious matters of even Muslim and Sikh in the said book and communal disputes amongst different religious sects and denominations thereof are raised on spread of this book in public. Moreover, all the persons doing activities of Swadhyaya Parivar are humiliated to great extent and thereby their religious feelings have been hurt. Thus Swadhyaya Parivar is defamed by hatching a conspiracy. 7. It is also alleged that petitioner No.1 Yashwant Sanghvi is the publisher, petitioner No.2 Hitendra Gandhi is the editor and petitioner No.3, Mukund Mehta is the Co-Editor of the booklet issued in the name of Jagrut Parivar. 8. It is further alleged that they have printed a bogus book and published the same having quite false and fabricated facts about Pandurang Athavle Shastri and the religious activities of Swadhyaya Parivar from Mumbai and thereby hurting religious feelings of followers of Swadhyaya Parivar and also raised communal disputes and created fear among the members of Swadhyaya Parivar. So the complainant has filed the complaint for the alleged commission of offences against the publisher, editor and co-editor of Jagrut Parivar to take lawful action against them. He has also produced xerox copy of the booklet with his complaint which is published in the name of Jagrut Parivar and the postal cover addressed to his residence. He has further asserted that he has signed the said complaint. He has also asserted that the complaint which is written by him is proper and true and has signed the same after reading and understanding contents thereof. 9. The complaint of Sahadevsinh before Surendranagar Police Station is registered as CR No.I-115 of 2004 for commission of offences as mentioned earlier and it is the registration of this FIR which is sought to be quashed which has given rise to the present batch of petitions. 10. By filing these petitions, the petitioners have, inter alia, stated that respondent No.2, Dhanashree alias Jayshree, w/o. Srinivas Nilkanth Talvarkar alias "Didi", on the face of the record itself does not appear to be a party interested either way but it is clear that it is at her instance and on her instigation that those persons who claim to be the members of Swadhyaya Parivar, and are her staunch followers, have filed these false and frivolous complaints against the petitioners. It is averred that respondent No.2 is the adopted daughter of Pandurang Athavle Shastri and in the later years of his life, Pandurang Athavle Shastri was not keeping so well and respondent No.2 who was increasingly taking part and participating in the activities of Swadhyaya Parivar was having its full control. It is averred that Swadhyaya Parivar which rendered yeomen services in the larger interest of humanity when Pandurang Athavle Shastri was in good health, increasingly lost direction when Pandurang Shastri's health slowly and gradually deteriorated. According to the petitioners, ultimately the situation came to such an impasse that Pandurang Shastri's health became worse and the intellectual class which selflessly participated to further the fundamental causes of the movement were disappointed. It is stated that they could not be the 'yes men' of respondent No.2 who they felt was acting contrary to the spirit of the movement of Swadhyaya Parivar and the letter and spirit of the Trust deed and, therefore, they separated themselves from Swadhyaya Parivar which was headed by respondent No.2. It is stated that in a way they were forced to leave it but, their devotion to the cause never disappeared and therefore they took immense care to see that the sentiments of those who continued to remain the members of Swadhyaya Parivar were not hurt and that Swadhyaya Movement of the said Parivar was not adversely affected. According to the petitioners, some of them could not resist themselves from bringing to the notice of the public at large the maladministration in the functioning of Swadhyaya Parivar movement. 11. It is also asserted that Hon'ble Mr. Justice B.J. Divan, former Hon'ble Chief Justice of this High Court, fired the first salvo and was at pains to write a latter to late Pandurang Athavle Shastri and it was not merely a letter of his resignation as a Trustee of the Trust though he was actively associated with the activities of the Swadhyaya Parivar over a long period of time but there was feelings of the heart burning which he suffered because of the fact that Swadhyaya Parivar movement was on the way of straying from the genuine cause to which it was wedded. The petitioners have relied upon the letter written by Hon'ble Mr. Justice B.J. Divan and produced it at Annexure B to the petition. 12. It is also asserted that since some of those who had so associated themselves with Swadhyaya Movement separated themselves and kept themselves aloof from the so-called activities of the Swadhyaya Parivar, the respondent No.2 however felt that sudden departure of such devoted persons would turn the needle of suspicion towards her and would create a situation in which the people would begin to look at her with an eye of suspicion and, therefore, she desired that such persons who had devoted for the cause in the past and who separated themselves from the movement should publicly express their regret for having left the movement and apologize in writing to her. It is averred that those who were devoted to the cause wanted to remain devoted to the cause and to the cause alone and any such activity which in their humble opinion was prejudicial to the furtherance of the cause itself should be discouraged and therefore the petitioners did not submit to her dictates and they preferred to act as per the dictates of their consciences. 13. It is also emphasised in the petition that resultant situation was invisible hand of respondent No.2 in instigating and encouraging number of persons for filing false and frivolous complaints, some of which were filed directly in the Courts of law at several places in several Districts and several Talukas, Towns in the Courts of the learned Magistrates and some of which were filed before the Police itself. According to the petitioners, the modus operandi adopted by respondent No.2 and those who blindly follow her was to file false and frivolous complaints and to secure the presence of the accused named therein by hook or crook and when they were so brought before the Courts concerned, to see that crowd gathered together and slogans were raised deprecating their (the accused's) practice and even to assault them. As per petitioners there are victims, the stories of pain suffered by whom, have been published in the newspapers and magazines also. 14. In the petition it is also asserted that two persons i.e., Shankerlal and Vinod Shah were mercilessly beaten by the members of unlawful assembly and the said story was highlighted by a Gujarati magazine, namely, "Abhiyan" whereas one Vinubhai Gajjar was also so assaulted in Jamnagar which was reported in "Samkaalin", a Gujarati daily newspaper being published from Mumbai. 15. It is asserted by the petitioners that they made it clear that they have neither written nor seen, nor published, nor edited this booklet namely, "Jagrut Parivar" nor associated themselves with the publication, printing and writing of the same but false allegations are made against them and evidence to this effect is created in order to falsely implicate them. It is stated that evidence is created in order to see that by resorting to several complaints at several different places, they are made to run from pillar to post and the sole aim is to give to them a veiled command to bow-down their heads before respondent No.2 and to unconditionally surrender themselves. As per petitioners, the main purpose of launching this prosecution is nothing but an act of monstrosity by creating an atmosphere of fear and terror against them whereas the other oblique purpose is to see that the petitioners are forced to come to the Courts from a distance of several kilometers together at the respective places at which the FIRs against them are launched and to present themselves before the Courts concerned and while they so appear, to mercilessly manhandle them. The petitioners have also given the details of such complaints in the memo of the petition. 16. It is also pointed out that a perusal of the FIRs given in several police stations at different places shows a markable feature, viz., that except the material references to the names of the complainants and the accused, the allegations are practically in the same words and letters which in turn show that it is the invisible hand of respondent No.2 which is working with an oblique motive. It is averred that this is done in order not merely to create an atmosphere of terror in the minds of the petitioners and the like persons, but also to deter them from resisting the attempts on the part of respondent No.2 of using the funds collected for the noblest purpose of religion and social service for purposes far away from such noble purposes. It is also alleged against respondent No.2 that there is a designed attempt on her part by keeping herself behind the scene and falsely instigating the persons to come forward as the complainants and to harass the accused named in several complaints at several places. It is also alleged that the petitioners believe that in order to wreak vengeance upon them and the persons like them, respondent No.2 has manoeuvred to see that this booklet, namely, Jagrut Parivar is brought into existence, circulated amongst the members of the Swadhyaya Parivar who have blind faith in her either in collaboration with them or without that as such and the complainants in their respective complaints have been instigated to file them. It is also emphasized that four persons, namely, (i) Hitendra Gandhi, who was assaulted and manhandled at Porbandar, (ii) Mukund Mehta, (iii) Janak Bhatt and (iv) Jashvant Sanghvi and all well-wishers like them have published, in the leading Gujarati newspapers of Gujarat and Mumbai, their statements that they are not at all concerned with this booklet Jagrut Parivar and those who had published the same should be condemned and that it is an act of manoeuvreing against them for falsely implicating them in the cases. 17. It is also contended that a case is falsely made out against the petitioners with an ulterior motive and the complainants in several cases are instigated and even the complainant in instant case is no exception. According to the petitioners, to attract the provisions of section 295-A of the Code, a deliberate and malicious intention of the accused named in the complaint, intention of outraging the religious feelings of any class of citizens of India, by works, either spoken or written, or by signs or by visible representations or otherwise is the first essential requirement and with such intention the accused must insult or attempt to insult the religion or the religious beliefs of that class, and these twin requirements should be satisfied to make out a prima facie case but merely because a person "X" or "Y" says that a particular person or persons are responsible for the publication of the offending article, without making out a prima facie case attributing this publication to the accused named in the complaint, contents of the booklet concerned cannot be taken for granted at their face value to make out a prima facie case against the persons who are falsely involved in the instant case. 18. It is also asserted that the petitioners have their own status in the walk of life and are reputed persons and their palms were always parallel to the earth for contributing one thing or the other for the betterment of the cause, namely, the cause of Swadhyaya Parivar. It is the case of the petitioners that the allegations levelled in the complaints make it clear that they are so absurd and inherently improbable that on the basis of them no prudent person can reach a just conclusion that there is sufficient ground for proceeding against the accused. It is also emphasized that the bar of Section 196 of the Code is attempted to be bypassed by the police. Though it is admitted by the petitioners that the bar applies at the stage of taking cognizance of the offence under Section 295-A and under section 505 of IPC but it is claimed that the very fact that the previous sanction of the Central Government or of the State Government or the D.M., as the case may be, is required before the Court takes cognizance of the offences under section 295-A or Section 505 of the IPC shows and suggests the importance about the application of mind even by the investigating agency before reaching the final stage of submitting the police report. 19. According to the petitioners, it is clear that the criminal proceedings in the case are manifestly malafide and they are maliciously instituted with ulterior motive of respondent No.2 and her associates like respondent No.1 to spite the accused in the instant case due to private and personal grudge of respondent No.2 and therefore also the FIR stands vitiated and the proceedings pursuant thereto are also vitiated. 20. It is also emphasized that instant case is one of the rarest of rare cases in which the FIR in instant case and the proceedings pursuant thereto in the nature of investigation by police be quashed and set at naught because not only innocent persons will come to suffer but the noble cause for which the persons devoted themselves may also come to suffer. It is stated that the proceedings have been initiated by way of wreaking vengeance on the accused and the persons like them, with malicious design of giving a veiled threat of initiating the actions against the persons like the accused and in future to deter them from raising their voice against the activities of respondent No.2 and, therefore, it should be quashed. 21. It is also pointed out that the manner in which the investigation is made by officers of different police stations in different Crime Register numbers covering one and the same booklet, namely, "Jagrut Parivar", also deserves to be deprecated. 22. Lastly it is reiterated that when the contents of the writings are to be appreciated with a view to considering whether the provisions of Section 295-A and Section 505 are attracted, the individual's feelings need not be considered and writing should be read and considered with the objective test whether ordinarily a prudent man would so feel. 23. On aforesaid premises, the petitioners have filed these petitions and claimed the relief to which reference is made earlier. 24. The petitions are hotly contested by all the replying respondents, i.e., (1) respondent No.1/ original complainant, (2) Dhanashree alias Jayshree, wife of Srinivas Nilkanth Talvarkar, respondent No.2, against whom no relief is claimed and (3) State of Gujarat respondent No.3. 25. On behalf of the complainant, reply affidavit has been filed in Special Civil Application No.