1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.992 OF 2010 Murzban Shroff .... Applicant. V/s State of Maharashtra and Anr. .... Respondents. Mr. Mihir Desai for the applicant. Mr. S.R. Shinde, APP for the State. Mr. Rajeev Patil i/b Mr. R.S. Shekhawar for Respondent No.2. CORAM: V. M. KANADE, J. DATE : 22ND JUNE, 2010 P.C.:- 1. Applicant has filed this application under section 482 of the Criminal Procedure Code for quashing the FIR (MECR) No. 01 of 2009 which is registered by the N.M. Joshi Marg Police Station vide FIR (MECR) No.01 of 2009 for the offence punishable under section 153-B of the Indian Penal Code. 2. Brief facts are as under:- 3. Applicant is a Mumbai based writer and has published several short stories with literary journals in the US, UK, Japan and India. He has also written several books. 2 Applicant wrote a book which was published by St. Martin’s Press, U.S.A and subsequently in India it was published by Picador. This book is a collection of short stories and the title of the book is “Breathless in Bombay”. 4. A private complaint was filed by one Vijay Mudras, Respondent No.3 herein in the Court of Metropolitan Magistrate, 29th Court at Dadar, Mumbai. In the complaint it was alleged that the applicant had committed an offence under section 153-B of the Indian Penal Code and it was alleged that the applicant, in one of the short stories captioned as “The House of Mine”, had made scandalous and derogatory remarks on Maharashtrians by referring to them by the derogatory and offensive word “Ghatti”. It was alleged that the applicant intended to harm reputation of Maharashtrians to lower them in the esteem of their non- Maharashtrian counter parts, to ridicule and to show them in poor light in the eyes of others and a reference was made to some of the portions in the said short story which, according to the complainant, was intended to harm the reputation of Maharashtrians. According to the complainant, the statements in the said book were sufficient to cause the disturbance and damage the communal harmony. According to the complainant, the term “Ghatti”, when used by people from North India, has come to acquire a derogatory connotation. It was further alleged that the book titled “Breathless in Bombay” had a tendency of fomenting and promoting disharmony, feelings of enmity, hatred and ill-will 3 on the grounds of place of work, residence and language. In the complaint, it was therefore prayed that the matter should be referred for investigation under section 156(3) of the Criminal Procedure Code. The learned Magistrate, after perusing the complaint passed the following order:- “ Heard. Perused contents of Book. The grievance alleged requires investigation u/s 156(3) of Cr.P.C. Hence complaint is sent to N.M. Joshi Marg Police Station for investigation u/s 156(3) Cr.P.C and report till next date.” 5. Applicant, thereafter, received a letter dated 17/04/2009 from Senior Police Inspector of N.M. Joshi Marg Police Station informing him that the complaint was registered against him. Applicant accordingly gave his detailed statement dated 23/04/2009 to the Senior Police Inspector and clarified his position. The police, after investigation, came to the conclusion that no case has been made out against the applicant and, therefore, N.M. Joshi Marg Police Station filed “C” Summary Report before the learned Magistrate, Dadar, Mumbai and a letter was also written to the Public Prosecutor dated 23/09/2009 informing him of the filing of the “C” Summary Report. The Criminal Application No.3243 of 2009 filed by the applicant in this 4 Court challenging the private complaint and FIR was, therefore, disposed of by order dated 20/01/2010. 6. Being aggrieved by the “C” Summary Report filed by the police, Respondent No.2 – original complainant filed a protest petition dated 30/01/2010 before the learned Magistrate. The learned Magistrate on the basis of the protest petition filed by Respondent No.2 rejected the “C” Summary Report and directed the police to further investigate the case under section 173(8) of the Criminal Procedure Code through Social Services Branch, C.B. C.I.D., Mumbai. Being aggrieved by the said order of the learned Magistrate, present application has been filed by the applicant in which he is also seeking relief for quashing the said private complaint and FIR arising out of the said complaint. 7. Mr. Mihir Desai, the learned Counsel appearing on behalf of the applicant firstly submitted that no sanction had been taken under section 196(1-A) of the Criminal Procedure Code and, therefore, no cognizance could have been taken by the learned Magistrate before necessary sanction was obtained from the competent authority. It is submitted that even if the averments made in the complaint are taken on their face value, the ingredients of the offence under section 153-B of the Indian Penal Code are not spelt out and, therefore, on that ground alone, the said complaint is liable to be quashed. It is then submitted that while 5 examining any article or story which is a work of art and literature so also offending portion in the said article or short story, the entire work had to be scrutinized in order to find out the intention of the author of the said work. It is submitted that if such a scrutiny had been made by the learned Magistrate, he would not have passed the impugned order directing further investigation under section 173(8) of the Criminal Procedure Code. It is further submitted that the book in question was in circulation for about two years and no untoward incident of criminal disharmony, disturbance of peace or violence had taken place because of the book. He further submitted that the learned Magistrate did not appreciate that the Investigating Authority, after taking into consideration the objectionable text had come to the objective finding that the said text does not fall within the scope of section 153-B of the Indian Penal Code. It is submitted that, therefore, there was no question of any further investigation since subject matter of the private complaint was the story in the book and it did not require any further investigation by way of examining witnesses. It is submitted that the learned Magistrate had erred in selectively extracting three sentences and reading them out of the context without reading the entire book. In support of the said submissions, he relied upon several judgments of this Court, other High Courts and Supreme Court. He relied upon the judgments in S. Rangarajan v. P. Jagjievan Ram and Ors1, Bobby Art International, etc. v. Om Pal Singh Hoon 1 (1989) 2 SCC 574 6 and others1, Manzar Sayeed Khan v. State of Maharashtra and another2, Joseph Bain D’souza and another v. State of Maharashtra and others3, F.A. Picture International v. Central Board of Film Certification and Anr.4, Kamal R. Khan v. State of Maharashtra5. He also relied upon the judgment of the Delhi High Court in Maqbool Fid Hussain v. Raj Kumar Pandey in Criminal Revision Petition No.114 of 2007 decided on 08/05/2008. He further relied upon the judgment of this Court in Gopal Vinayak Godse v. The Union of India6 and the judgment of the Apex Court in Ajay Goswami v. Union of India (UOI) and Ors.7 8. On the other hand, Mr. Rajeev Patil, the learned Counsel appearing on behalf of Respondent No.2, submitted that the application has been filed prematurely since only order that was passed was directing the police to further investigate the case under section 173(8). He submitted that the police could have investigated the matter and still could have submitted a negative report. He submitted that, therefore, the application challenging the said order is premature since the applicant could have waited till the report was submitted by the police. He submitted that there is no bar for registration of complaint under section 153-B and for the purpose of registration and investigation, it is not necessary to obtain sanction under section 196 (1-A) of the 1 (1996) 4 SCC 1 2 (2007) 5 SCC 1 3 1995(2) BomCR 317 4 2005 (1) BomCR 5 5 2009 (4) Bom CR 496 6 AIR 1971 Bombay 56 7 AIR 2007 SC 493 7 Criminal Procedure Code. In support of the said submission, he relied upon the judgment in State of Karnataka and another v. Pastor P. Raju1. He then submitted that the High Court should be slow in quashing the FIR while exercising its inherent jurisdiction under section 482 of the Criminal Procedure Code. He submitted that investigation should not be stayed since the police had right to investigate into the matter. He submitted that the Apex Court in several cases has laid down the parameters which are to be observed by the High Court while exercising its inherent powers under section 482 of the Criminal Procedure Code. He relied upon the judgment of the Apex Court in Reshma Bano v. State of Uttar Pradesh and Others2 and also on the judgment of Allahabad High Court in Ashok Singhal v. State of U.P. & Anr.3 9. I have heard the learned Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of the complainant and the learned APP for the State at great length. Since, I have already narrated the facts, I do not wish to repeat the facts of the case. The narrow issue which falls for consideration before this Court is (i) whether the offending paragraph in the short story “House of Mine” falls within the purview of provisions of section 153-B of the Indian Penal Code, (ii) whether the police have a right to investigate and register the offence under section 153-B without obtaining sanction under section 196(1-A) of the 1 (2006) 6 SCC 728 2 (2008) 5 SCC 791 3 2005 (2) Crimes 7. 8 Criminal Procedure Code and (iii) whether the allegations made in the complaint even if they are taken at their face value, constitute an offence under section 153-B of the Indian Penal Code. 10. Applicant is an author of a book (Breathless in Bombay) which was published about two years ago and which is a collection of short stories depicting the life in general in Bombay and the various people who are living in Bombay in particular. The story “House of Mine” is regarding the quandary which inhabitants of building premises are faced with after having received a notice of demolition of their building from the Building Repairs Department. The complainant had taken exception to certain utterances made by one of the characters called “Olaf” in the said short story and more particularly the utterances in the last sentence of the first para on page 81, third para on page 93 and fifth para on page 93 which read as under:- Utterances by Olaf in the last sentence of the first para on page 81 of the book. (I) Olaf: “ I can’t face these bloody ghatti fuckers. Bloody.... I will make them remember their mothers.” We had to politely remind Olaf that most of the shopkeepers were also ghattis. We didn’t want to risk offending 9 them.” Utterances by Olaf in third para on page 93 of the book. (II) Olaf: “Cha, I do not waste time, man - never. When there is work, I do it on the spot. They used to call me Speedy Castellino in the office. The bosses all knew: once Speedy Castellino was on the job, the job was as good as done. Not like these ghatti buggers, men. Can’t trust them with one important thing, huh. Now just see this letter. How to send it?” Utterances by Olaf in Fifth para on page 93 of the book. (III) Olaf: “Just see, no. How to send this? These ghatti buggers don’t even know how to sign.” 11. The learned Magistrate, initially, had directed the Police to investigate under section 156(3) and submit a report. The Police Authorities accordingly submitted a “C” Summary Report which reads as under:- “The story revolves around an old 10 building that is to be demolished. Towards this purpose the residents have all gathered to come to a unanimous solution. One of them has been appointed as the main character. He is the hero of the story. He is an Indian citizen. Similarly, there are other tenants in the story whose names are Dinanath, Gopinath, Ramdulari, Sonar, Fulwala, a cloth merchant and tailor etc. The villain in the story does not hold a job and all he does is drink alcohol all day. His name is Olaf and his religion is not specified. At all times, the word “ghatti” used in the story is being uttered by the villain. And at the end of the story the hero reprimands him for doing so. He explains to the villain that there is secular unity in our country. In no way the use of the word ghatti has affected the integrity of our country. The use of the word ghatti is doltish rather than illiterate. And such a word is used only during conversation, as dialogue. On the contrary, it is seen that by the said story the writer has given the message of 11 unity from the view point of secularism. The complainant has read only the portion of the work which he finds objectionable at pages 83 and 91, and therefore found the action of the writer to be offensive. The complainant has presented only the conversaion/dialogue of the villain. But after seeing the other side of the story it is clear that it has been brought to the attention of the villain that there is unity in India. Therefore, if the story is read as a whole it is seen that there is no substance in the complaint.” 12. Thereafter, protest petition was filed by the complainant and the learned Magistrate directed the police to make further investigation under section 173(8) and referred the matter to the Social Services Branch C.B. C.I.D. 13. The law on the question of power of the High Court to quash the complaint under section 482 of the Criminal Procedure Code and under Article 227 of the Constitution of India is quite well settled. In R.P. Kapur v. State of Punjab1, the Apex Court has laid down three circumstances under which criminal complaint including the FIR could be quashed by the High Court. Thereafter in State of Haryana v. Bhajan 1 AIR 1960 SC 866 12 Lal1, the Apex Court has taken into consideration the other categories of cases which could be quashed and has laid down guidelines for the purpose of exercising power under section 482 which are as under:- “1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 1 1992 Supp (1) Supreme Court Cases 335 13 4. Where, the allegations in the F.I.R do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is 14 manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 14. The learned Counsel appearing on behalf of the applicant has submitted that averments in the complaint even if they are taken on their face value, will not constitute an offence under section 153-B of the Indian Penal Code and, therefore, on this ground alone the complaint is liable to be dismissed. 15. Before taking into consideration the relevant offending paragraphs in the said story, it would be profitable to take into consideration the provisions of section 153-B and, thereafter, see whether the offending paragraphs in the said story fall within the purview of the said section. Section 153-B of the Indian Penal Code reads as under:- “153-B. Imputations, assertions prejudicial to national integration.- (1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,- (a) makes or publishes any imputation that any class of persons cannot by reason 15 of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or (b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or (c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such fine, or with both. (2) Whoever commits an offence specified in sub-section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five 16 years and shall also be liable to fine.” 16. Section 153-B of the Indian Penal Code, as reproduced hereinabove, covers a case where a person by words either spoken or written or by signs or by visible representations or otherwise makes or publishes any imputation/assertion of three types mentioned in sub-clauses (a), (b) and (c) of sub- section (1) of section 153-B, he is liable to be punished under sub-section 2. The gist of the offence is to promote feelings of enmity or hatred between members of any class, race, religion, language or regional group or caste. The intention to cause disorder, disharmony or feelings of enmity or hatred is sine qua non for the offence punishable under section 153-B and the prosecution has to prove, prima facie, the existence of mens rea on the part of the accused. The intention has to be judged primarily from the language of the article or publication and the circumstances in which the said article/story was written or published. The matter complained of within the ambit of section 153-B must be read as a whole and one is not expected to rely on stray passages in the story or strongly worded and isolated passages for proving the charge. Similarly, a sentence here and a sentence there cannot be taken out of the context and these sentences cannot be clubbed together by inferential reasoning for the purpose of proving the offence. 17. A perusal of the said provision and the offending 17 paragraphs which are reproduced in para 10 hereinabove, it would be abundantly clear that sub-clauses (a) and (b) of sub-section(1) of Section 153-B are not attracted in the present case and, therefore, Mr. Rajeev Patil has fairly conceded this fact during the course of argument. What has to be now seen is : whether the said offending paragraphs even if they are accepted at their face value would fall within the purview of sub-clause (c) of sub-section (1) of Section 153-B. Perusal of sub-clause (c) of sub-section (1) of Section 153-B would indicate that what is prohibited by the said sub- clause is any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion etc. cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons. What is, therefore, held to be punishable is that if any class of persons etc are under any obligation to do a particular thing and an assertion......... etc is made regarding such obligation then, if it creates or is likely to create disharmony, is made punishable under sub-clause (c) of sub-section (1) of the said Section. The first ingredient which has to be established in the complaint is the assertion........ etc. regarding any obligation of any caste, community etc. As a corollary, therefore, if the publication is not an assertion.......etc. regarding the obligation of any caste, community then the publication would not fall within the purview of sub-clause (c) of sub-section (1) of Section 153-B. 18 18. It will also be profitable in this context to take into consideration the definition of the word “obligation” as defined in The Law Lxicon: Obligation is an act which binds a person to some performance; an act by which a person becomes bound to another or for another, or to forbear something. Obligation is the binding power of any oath, vow, duty, promise, or contract, or law, civil, political or moral. The word “obligation” as defined in one of the dictionaries means a legal or moral duty to do or not do something. The word has many wide and varied meanings. It may refer to anything that a person is bound to do or forbear from doing, whether the duty is imposed by law, contract, promise, social relations, courtesy, kindness, or morality. 19. At this stage, it has to be noticed that section 153-A and 153-B both deal with creating disharmony etc but section 153-A is regarding promoting enmity on the grounds of religion, race, place of birth, residence, language etc. whereas section 153-B is regarding assertions which are prejudicial to national integration and they are made in terms of assertions mentioned in sub-clauses (a), (b) and (c) 19 of sub-section (1) of section 153-B. A clear distinction is drawn by the legislature in respect of these two sections and there is no overlapping of cases of creation of disharmony etc in respect of these two provisions. However, for both these sections, prosecution has to prove the intention to cause disorder or enmity and hence the prosecution has to prove, prima facie, the existence of mens rea on the part of the accused. The Apex Court in Manzar Sayeed Khan vs. State of Maharashtra and another1, while dealing with the provisions of section 153-A has observed in para 16 as under:- “16. Section 153-A IPC, as extracted hereinabove, covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquility. The gist of the offence is the intention to promote feelings of enmity or hatred between different