Z.A. Haq, J.@mdashHeard Shri A.B. Mirza, the learned counsel for the applicant, Smt. K.S. Joshi, the learned Additional Public Prosecutor, for the non-applicant no. 1 and Shri S.O. Ahmed, the learned counsel for the non-applicant no. 2. The applicant has approached this Court invoking the jurisdiction u/s 482 of the Criminal Procedure Code and praying for quashing of the Summary Criminal Case No. 3271/2012 pending before the 5th J.M.F.C. Court, Akola for the offence punishable u/s 294(b) of the Indian Penal Code which has arisen out of the Final Report No. 96/2012 dated 21st December, 2012 and the F.I.R. No. 3076/2012 dated 8th August, 2012 filed by the Police Station Ramdaspeth, Akola against the applicant.
2. The complainant/non-applicant no. 2 has filed the complaint with the non-applicant no. 1 on 7th August, 2012 alleging that when the complainant and his friends were sitting on bullock-cart, they heard that the applicant has made derogatory statements against Mohammad Saheb. According to the complainant/non-applicant no. 2, the statements are made by the applicant on the loudspeaker and because of it there is every possibility that the religious feelings of the Muslims are insulted and it may result in disputes.
3. Shri Mirza, the learned counsel for the applicant, has submitted that the prosecution of the applicant for the offence punishable u/s 294(b) of the Indian Penal Code is an abuse of the process of law inasmuch as the complaint made by the non-applicant no. 2 does not make out any offence punishable u/s 294(b) of the Indian Penal Code. According to the applicant, the filing of the complaint by the non-applicant no. 2 against the applicant is out of grudge of the persons belonging to different sects of the Muslim Community, against the applicant. Mr. Mirza, the learned counsel for the applicant, submitted that the statements in the complaint show that the complaint is made upon hearsay evidence and even the complainant does not disclose any eye witness to the incident. Mr. Mirza further submitted that the non-applicant no. 1 has also not discharged its statutory obligation of conducting proper investigation before filing the case in the Court of learned Magistrate.
4. Mrs. Joshi, the learned Additional Public Prosecutor, has opposed the application filed by the applicant and submitted that the contents of the complaint prima facie disclose an offence punishable u/s 294(b) of the Indian Penal Code and therefore, this Court should not exercise jurisdiction u/s 482 of the Criminal Procedure Code for quashing of the proceedings.
5. Mr. Ahmed, the learned counsel for the non-applicant no. 2, has submitted that the words used by the applicant, as stated in the complaint and the facts that the applicant has used such derogatory words against Mohammad Saheb in the loudspeaker, shows that the applicant has intentionally committed an act to annoy the feelings of the Muslims.
6. We have heard the learned counsel for the applicant, the learned Additional Public Prosecutor for the non-applicant no. 1 and the learned counsel for the non-applicant no. 2 and have examined the record and more specifically the final report.
7. Section 294(b) of the Indian Penal Code reads as follows:-
294. Obscene acts and songs-Whoever, to the annoyance of others-
(a).....
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
8. The basic requirement for prosecuting a person u/s 294(b) of the Indian Penal Code is that the person should have sung, recited or uttered any obscene song, ballad or words to the annoyance of others. The complaint made by the non-applicant no. 2 to the non-applicant no. 1 does not show that the applicant has recited or uttered obscene words. Moreover, the complainant has not pointed out as to how the alleged words are recited or uttered by the applicant with the intention of causing annoyance to others. The ingredients required for making out an offence punishable u/s 294(b) of the Indian Penal Code are not made out. There is no prima facie material or evidence to show that the applicant has uttered or recited words which can be said to be obscene. The complaint does not prima facie shows that the alleged words are recited by the applicant for causing annoyance to the others.
9. In our view, the complaint, as made by the non-applicant no. 2, against the applicant does not make out any case for prosecution of the applicant u/s 294(b) of the Indian Penal Code and the prosecution of the applicant for the above mentioned offence is an abuse of the process of law. Therefore, we are of the view that this is a fit case where jurisdiction u/s 482 of the Criminal Procedure Code has to be invoked and the prosecution of the applicant needs to be quashed. The application is allowed.
Rule is made absolute in terms of prayer clause (a) and (b). In the circumstances, the parties to bear their own costs.
