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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF MAY, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

WRIT PETITION NO.852/2021 (GM-RES)

BETWEEN:

1. PRECILLA D’SOUZA,
AGED ABOUT 55 YEARS,
D.NO.13/174, KATAPUNI HOUSE,
KODANGE, B.C.ROAD, B.MOODA,
BANTWAL, JODUMARGA,
MANGALURU - 574219,
DAKSHINA KARNATAKA.

2. SAMSON JOHN,
AGED ABOUT 50 YEARS,
D.NO.2-229/5,
KADESH HOUSE, SONALIKE,
NEAR NAGABANA JALLIGUDDE BAJAL,
MANGALURU-575 007.
DAKSHINA KARNATAKA. … PETITIONERS

(BY SRI MOHAN RAJ DORAISWAMY A., ADVOCATE)

AND:

1. STATE OF KARNATAKA,
THROUGH BANTWAL TOWN PS,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU – 560001.

2. MADHURA A,
AGED ABOUT 35 YEARS,
MATRUCHAYA HOUSE,
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BEYOND B.C. ROAD BUS STAND,

B. MOODA GREAMA, JODUMARGA POST,
MANGALURU-574219,
DAKSHINA KARNATAKA. … RESPONDENTS

(BY SRI H.R. SHWORI, HCGP FOR R-1;

R-2 – SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF
CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED
08.06.2020 TAKING COGNIZANCE VIDE ANNEXURE-A PASSED
BY THE LD.ACJ AND JMFC, BANTWAL, DK, IN CC No.813/2020
AND SET ASIDE THE ENTIRE PROCEEDINGS IN
C.C.NO.813/2020 AGAINST THE PETITIONERS WHO ARE
ACCUSED No.1 AND ACCUSED No.2 IN FIR No.209/2016 FOR
THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 298
R/W SECTION 34 OF THE IPC PENDING ON THE FILE OF THE
LD.ACJ AND JMFC BANTWAL, D.K. AND ETC.

THIS WRIT PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 15.04.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

ORDER

This petition is filed under Articles 226 and 227 of the

Constitution of India read with Section 482 of Cr.P.C, praying

this Court to quash the impugned order dated 08.06.2020 taking

cognizance vide Annexure-A passed by the learned ACJ and

JMFC, Bantwal, D.K. in C.C.No.813/2020 and set aside the entire

proceedings in C.C.No.813/2020 against the petitioners, who are

accused Nos.1 and 2 in FIR No.209/2016 for the offences

punishable under Section 298 read with Section 34 of IPC and

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consequently to quash the FIR and grant such other relief as

deemed fit in the circumstances of the case.

2. The factual matrix of the case is that the police have

registered the case against the petitioners based on the

compliant of one Smt. Madhura vide Annexure-B wherein

allegations are made against the petitioners that they came to

her residence and told that they came to give information about

the website. In the beginning they told that they came to

educate the children through videos and there were messages of

Bible. They told that the Society is not in order and they have to

do something for the future and gave the pamphlet. In the said

pamphlet there was some information with regard to the

website. The complainant enquired that there is no information

about Quran and Bhagavadgita and they told that only Bible can

tell the future and no other religious scripts give any information

and tsunami is coming in the future. The Government can give

only information and Yesu Christa can give protection if he is

believed and if they believe they get all type of peace of mind

and no other religion can provide the same. Hence, the

complainant questioned them whether they have come for

propagating the religious belief and whether they came for

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conversion and immediately they left the place. Based on the

complaint, the police have registered the case against the

petitioners for the offences punishable under Section 295A read

with Section 34 of IPC in Crime No.209/2016. Thereafter, the

police have investigated the matter and filed the charge-sheet

and while filing the charge-sheet they invoked the offence under

Section 298 read with Section 34 of IPC. The learned Magistrate

after filing of the charge-sheet, vide his order dated 08.06.2020

took the cognizance. Hence, the present petition is filed before

this Court.

3. The learned counsel for the petitioners would

vehemently contend that the allegations made in the charge-

sheet does not attract the ingredients of the offence punishable

under Section 298 of IPC. The learned counsel would submit

that the cognizance was taken after 3½ years and there was an

inordinate delay in filing the charge-sheet. The learned

Magistrate has not applied his mind while taking the cognizance

and it is a clear case of non-application of mind. The filing of the

case against the petitioners herein is violative of Articles 14, 21

and 25 of the Constitution of India.

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4. The learned counsel for the petitioners in support of

his arguments relied upon the judgment of the Gauhati High

Court in the case of K. VIKHEHO SEMA v. STATE OF

NAGALAND reported in 2007 Cri.L.J. 4266, wherein it is held

that under Section 468(2)(c) of Cr.P.C., the Court can take

cognizance of an offence punishable with imprisonment for a

term not exceeding three years, if the criminal action is set in

motion within a period of three years. The learned counsel

brought to the notice of this Court paragraph Nos.12 and 13 of

the judgment. In paragraph No.12 it is held that the object of

the Criminal Procedure Code in putting a bar of limitation on

prosecutions was clearly to prevent the parties from filing cases

after a long time, as a result of which material evidence may

disappear and also to prevent abuse of the process of the Court

by filing vexatious and belated prosecutions long after the date

of the offence. The object which the statutes seek to subserve is

clearly in consonance with the concept of fairness of trial as

enshrined in Article 21 of the Constitution of India.

5. The learned counsel also relied upon the unreported

decision of this Court passed in W.P.No.102268/2015 dated

10.08.2015, wherein this Court in paragraph No.21 of the

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judgment discussed that if somebody wants to

practice/propagate a particular religion, he cannot be attacked

by persons belonging to any other denomination or religion of

faith. He is entitled to every possible protection at the hands of

the police. The police cannot abdicate their responsibility of

protecting the individuals, who are exercising the rights

guaranteed under Article 25 of the Constitution of India.

Further, the protection guaranteed under Article 25 is not

confined to matters of doctrine, but extends to acts done in

exercise of the right to profess, practice and propagate religion

freely.

6. The learned counsel also relied upon the judgment of

the Delhi High Court in the case of VINOD KUMAR JAM v.

REGISTRAR OF COMPANIES reported in 1985 RLR 603,

wherein in paragraph No.6 discussed with regard to Section 468,

469 and 473 of Cr.P.C. In paragraph No.15 it is held that the

Magistrate must apply his judicial mind to the question of

condoning the delay before taking cognizance of the offence and

he cannot, after taking the cognizance, rectify the illegality by

passing an order under Section 473 of Cr.P.C. so as to operate

retrospectively.
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7. The learned counsel also relied upon the Bombay

High Court judgment in the case of KHALID AKHTAR ABDUL

LATIF AHEMI v. THE STATE OF MAHARASHTRA passed in

Criminal Application No.1665/2009 dated 30.06.2010 wherein

exercising the power under Section 482 of Cr.P.C., the Bombay

High Court discussed Sections 468, 469, 470 and 473 of Cr.P.C.

and held that the Court is duty bound on the presentation of the

charge-sheet to consider the question of limitation and to see as

to whether it is competent to take cognizance and whether the

limitation has expired or not.

8. The learned counsel also relied upon the Delhi High

Court judgment in the case of SAREGAMA INDIA LTD. v.

STATE NCT OF DELHI passed in Crl.M.C.No.149/2007 delivered

on 27.01.2014, wherein the Delhi High Court discussed Section

468 of Cr.P.C. regarding taking of cognizance after lapse of

period of limitation and also discussed Section 473 of Cr.P.C.

which extends the period of limitation.

9. The learned counsel also relied upon the Apex Court

judgment in the case of STATE OF HIMACHAL PRADESH v.

TARA DUTT AND ANOTHER passed in Appeal (Crl.)

No.1224/1999 delivered on 19.11.1999 wherein the Apex Court

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discussed Sections 468 and 473 of Cr.P.C. and observed that the

discretion conferred on the Court has to be exercised judicially

and on well recognized principles. While exercising the

discretion, the same must be by a speaking order, indicating the

satisfaction of the Court that the delay was satisfactorily

explained and condonation of the same was in the interest of

justice.

10. The learned counsel also relied upon the Allahabad

High Court judgment in the case of KAMLA KANT SINGH v.

CHAIRMAN/MANAGING DIRECTOR, BENNETTA COLMAN

AND COMPANY LTD. AND OTHERS passed in Criminal

Rev.No.667/1985 dated 27.07.1987, wherein it is discussed with

regard to Section 298 of IPC. Under Section 298 of IPC what

has been made punishable, is uttering words etc. with deliberate

intention to wound religious feelings. What is to be marked is

that even to wound the religious feelings is not punishable

unless it is with deliberate intention. Deliberate intention means

premeditated intention with sole object to wound the religious

feelings. It is better to have the object in enacting Section 298

of IPC. The authors or the framers of the Code say that a warm

expression dropped in the heat of controversy, or an argument

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urged by any person, not for the purpose of insulting and

annoying the professors of a different creed, but in good faith for

the purpose of vindicating his own, will not fall under the

definition contained in this clause.

11. The learned counsel also relied upon the judgment of

the Apex Court in the case of KRISHNA LAL CHAWLA AND

OTHERS v. STATE OF U.P. AND ANOTHER passed in Criminal

Appeal No.283/2021 delivered on 08.03.2021, wherein the Apex

Court referring to paragraph No.28 of the judgment in the case

of Pepsi Foods Ltd. v. Special Judicial Magistrate held that the

power to issue a summoning order is a matter of grave

importance, and that the Magistrate must only allow criminal law

to take its course after satisfying himself that there is a real case

to be made. The learned counsel also brought to the notice of

this Court paragraph No.18 of the judgment wherein the Apex

Court has observed that the Trial Courts have the power to not

merely decide on acquittal or conviction of the accused person

after the trial, but also the duty to nip frivolous litigations in the

bud even before they reach the stage of trial by discharging the

accused in fit cases. This would not only save judicial time that

comes at the cost of public money, but would also protect the
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right to liberty that every person is entitled to under Article 21 of

the Constitution.

12. The learned counsel referring the above judgments

would submit that the proceedings initiated against the

petitioners is liable to be quashed on the ground of limitation

and also on merits. The learned Magistrate has not applied his

judicious mind while taking the cognizance.

13. Per contra, the learned High Court Government

Pleader appearing for respondent No.1 – State would contend

that the Court has to take note of the date of the complaint and

not filing of the charge-sheet. The incident was taken place on

06.12.2016 and the charge-sheet was filed on 08.06.2020. The

learned counsel would contend that no application is filed under

Section 473 of Cr.P.C. to condone the delay. The learned

counsel would contend that the Constitutional Bench judgment of

the Apex Court in the case of SARAH MATHEW AND OTHERS

v. INSTITUTE OF CARDIO VASCULAR DISEASES AND

OTHERS reported in AIR 2014 SC 448 has held that when on a

petition or complaint being filed before Magistrate, then a

Magistrate applies his mind for proceeding under the various

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11

provisions of Chapter XIV of Cr.P.C. then it must be held to have

taken cognizance of the offences mentioned in the complaint.

The Apex Court also discussed Sections 468 and 473 of Cr.P.C.

and held that the Magistrate has the power to take cognizance of

an offence only if complaint in respect of, it is filed within

prescribed limitation period. The Magistrate would however be

entitled to exclude such time as is legally excludable. Section

473 of Cr.P.C. has a non-obstante clause which means that it

has an overriding effect on Section 468 of Cr.P.C. For the

purpose of computing the period of limitation under Section 468

of Cr.P.C., the relevant date is the date of filing of complaint or

the date of institution of process and not the date on which the

Magistrate takes cognizance.

14. The learned counsel referring this judgment would

contend that this judgment is on the point and hence the

judgments referred by the learned counsel for the petitioners are

not applicable to the case on hand when the Constitutional

Bench has delivered the judgment holding that for the purpose

of computing the period of limitation under Section 468 of

Cr.P.C. the relevant date is the date of filing of the complaint.

The learned counsel would also contend that the FIR discloses
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12

that the cognizable offence was taken place and there was no

delay in lodging the complaint and the FIR constitutes the

offence i.e., degrading the other religions. No fundamental right

is conferred on any religion to degrade the other religion. The

same is a mixed question of fact and law and hence there cannot

be any quashing of the proceedings against the petitioners.

15. In reply to the arguments of the learned High Court

Government Pleader, the learned counsel for the petitioners

would contend that the offences which have been invoked

against the petitioners are barred by limitation and hence there

cannot be any criminal prosecution against the petitioners.

16. Having heard the respective contention of both the

counsel, this Court has to analyze the material available on

record with the principles laid down by the judgments referred

supra. It is settled law that the initiation of the criminal

prosecution is a serious matter and the Apex Court in the recent

judgment in the case of Krishna Lal Chawla (supra) held that

the learned Magistrate has to take note of the materials placed

before the Court and in paragraph No.18 it is held that it is the

duty of the Magistrate to nip frivolous litigations in the bud even

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before they reach the stage of trial by discharging the accused in

fit cases.

17. The learned counsel for the petitioners would

contend that the charge-sheet is filed after 3½ years. It is also

not in dispute that the incident was taken on 06.12.2016 and the

charge-sheet was filed on 08.06.2020. It is an admitted fact

that no application is filed under Section 473 of Cr.P.C. The

Apex Court in the judgment in the case of Sarah Mathew

(supra) discussed the scope of Sections 468 and 473 of Cr.P.C.

The Apex Court categorically held that for the purpose of

computing the period of limitation under Section 468 of Cr.P.C.,

the relevant date is the date of filing of complaint or the date of

institution of process and not the date on which the Magistrate

takes cognizance. In the case on hand, no doubt the cognizance

is taken after filing of delayed charge-sheet, but the fact is that

the complaint was given on 06.12.2016. When the Apex Court

held that for the purpose of computing the period of limitation

under Section 468 of Cr.P.C., the relevant date is the date of

filing of complaint and in the case on hand, there was no delay in

lodging the complaint and the complaint was filed on the very

same day.
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18. It is important to note that an allegation is made in

the complaint that the accused persons have degraded the other

religions stating that neither Bhagavadgita nor Quran will

provide any peace of mind or comes to any rescue of any person

except Yesu Christa. It is rightly pointed out by the learned

counsel for the respondent/complainant that no fundamental

right is given to any religion to degrade other religions. In the

case on hand, specific allegation against the petitioners is that

they have degraded the other religion. When such being the

case, the very contention of the learned counsel for the

petitioners that the charge-sheet is filed after delayed period

cannot be accepted when the Constitutional Bench says that for

the purpose of computing the period of limitation under Section

468 of Cr.P.C. the relevant date is the date of filing of complaint.

I have already pointed out that there is no delay in lodging the

complaint. The Apex Court in the case of Sarah Mathew

(supra) discussed in detail regarding applicability of the period of

limitation and computation of limitation in paragraph No.21 of

the judgment after discussing Sections 467 to 473 of Cr.P.C. and

so also discussed with regard to the words ‘taking cognizance’

has not been defined in the Code. Hence, the first contention
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that the proceedings initiated against the petitioners is barred by

limitation cannot be accepted.

19. The second contention on merits is concerned is that

the Magistrate has not applied his mind while taking the

cognizance. On perusal of the impugned order at Annexure-A,

the learned Magistrate after receiving the charge-sheet and the

relevant documents, perused the same and found prima facie

materials available on record to proceed against accused Nos.1

and 2. The learned Magistrate invoking Section 190(1)(b) of

Cr.P.C. took the cognizance for the offence punishable under

Section 298 read with Section 34 of IPC. It is settled law that

while taking the cognizance, the learned Magistrate need not

pass any elaborate order and it requires application of mind

whether charge-sheet material and its enclosures constitute a

prima facie material to proceed against the accused. When the

learned Magistrate has applied his judicious mind while taking

the cognizance, the very contention that the learned Magistrate

has not applied his judicious mind cannot be accepted.

20. The other contention of the learned counsel for the

petitioners that taking of cognizance violates Articles 14, 21 and

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25 of the Constitution of India cannot be accepted for the reason

that I have already pointed out that while professing any

religion, the religious heads or professing by any person should

not degrade other religion. Having perused the complaint

averments and also the statements of the witnesses, it is specific

that while propagating they specifically mentioned that other

religious scripts does not say anything about anticipation of

tsunami and only Yesu Christa can protect them. When such

allegations are made in the complaint, the very contention of the

learned counsel for the petitioners that the offences invoked

against the petitioners does not attract the ingredients of Section

298 of IPC cannot be accepted. No doubt, while setting the law

in motion invoked Section 295(A) of IPC regarding deliberate

and malicious acts, intended to outrage religious feelings of any

class by insulting its religion or religious beliefs and after the

investigation, the Investigating Officer invoked Section 298 of

IPC uttering, words, etc. with deliberate intention to wound the

religious feelings of any person. Having taken note of the

complaint averments and also the statement of witnesses, with

deliberate intention to wound the religious feelings of other

religion words are uttered while propogating. When such being

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the facts of the case, it attracts Section 298 of IPC. Hence, the

contentions of the learned counsel for the petitioners that the

charges levelled against the petitioners does not attract Section

298 of IPC and issue of process against the petitioners would

vitiates Articles 14, 21 and 25 of the Constitution of India,

cannot be accepted.

21. In view of the discussions made above, I pass the

following:

ORDER

The petition is rejected.

In view of rejection of the main petition, I.As, if any, does

not survive for consideration and the same stands disposed of.

Sd/-
JUDGE

MD