For the Petitioner: Mr. Deepak Kumar Bharti, Advocate.

Transcription

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P.No.239 of 2011 Cardinal Telesphore P. Telesphore P. Cardinal Toppo Petitioner -Versus- 1. The State of Jharkhand. 2. Kendriya Sarna Samittee Opp. Parties CORAM: THE HON'BLE MR. JUSTICE D.K.SINHA For the Petitioner: Mr. Deepak Kumar Bharti, Advocate. For the State: Mr. Tapas Roy, A.P.P. For the O.P.No.2: Mr. Vishal Tiwary, Advocate. C.A.V. on : Pronounced on D.K.Sinha,J. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Code of Criminal Procedure for the quashment of the order dated by which the learned Judicial Magistrate, Ranchi found a prima facie offence alleged against the petitioner and others under Sections 453/295A/298 read with 120B of the Indian Penal Code to proceed against them in Complaint Case No.1314 of The prosecution story as narrated in the complain in short was that the complainant was an association of members of Scheduled Tribes being the follower of "Sarna Religion", an association duly registered under the Societies Registration, Act, Such society was formed for literacy, scientific, charitable and religious purpose viz. for the upliftment of social, educational, economic growth of the members of the Scheduled Tribes, who were the followers of "Sarna". The complainant further explained that the followers of "Sarna" were having their own customs in religious and social matters including the right of inheritance and succession and they used to get their religious rituals performed through "Pahan". 3. It was alleged by the complainant that the Christan community in the recent past were continuously indulging themselves by intruding in the religious beliefs of the followers of "Sarna" with the sole motive to give effect to the process of conversion and pursuant to that the Christan Community had been writing, publishing and printing books condemning the religious beliefs of the followers of "Sarna" only with the intent to harm their identity and in this connection they published several books viz. "Tribal Myths", Adivasi Missa Sangrah", "Aadim Dharm Ek Parichay", Khariya Dharam Aur Sanskriti Ka Bisleshan, "Oraon Sanskriti" and Saumya Vyaktitva Ki Talash" by which the accused tried to cause harm to the sole identity of the followers of "Sarna" by directly attacking thier culture, beliefs, places of worship and their deities. The complainant further alleged that the authors, publishers and the printers of the said books have tried to insult the religious beliefs of the "Sarna" people maliciously. It was alleged that the contents of the above books in all respects were detrimental to the religious aims and objects of "Sarna" which was prejudicial to maintenance of harmonyand peace for the different

2 2 communities by publication of the said books and the accused persons voluntarily committed an offence with intent to insult the religious beliefs of the followers of "Sarna Religion" therefore, the acts of the accused were grossly insulting an abusive, intentionally designed to cause outrage which amount to blasphemy and profanity as would be manifest that their acts were intentional and habitual by writing such defamatory books. During course of enquiry the statement of the complainant represented through the President of Kendriya Sarna Samiti Shri Ajay Tirkey was recorded on his solemn affirmation and the statements of other witnesses were also recorded during course of enquiry. 4. Learned Counsel Mr. Deepak Kumar Bharti at the outset submitted that there were vital discrepancies between the facts stated in the Complaint Petition with that of the statement of the complainant recorded on solemn affirmation. In the Complaint Petition no specific allegation was made against the petitioner- Cardinal Telesphore P. Telesphore P. Cardinal Toppo rather the complainant made substantial development in his statement recorded on solemn affirmation by stating that 'Saumya Vyaktitva Ki Talash' a hand book was published by Staya Bharti Publisher, Ranchi and the said book was written under the instructions of the petitioner, with different allegations against the other accused persons. 5. Advancing his argument, learned Counsel for the petitioner submitted that the petitioner has been honoured by the Reverend Pope, the religious head of the Catholic faith in the entire World. The petitioner has been decorated by offering the honoured post of 'Arch Bishop' of Ranchi Catholic Archdioceses. He happened to be the eminent religious personality of Catholic Christian Religion in Jharkhand as well as in India, who held the Office of the President in the Conference of Catholic Bishops of India representing the Christian Community in India in various international forums including in the Vatican City, Rome. The petitioner has been implicated in the instant case maliciously and intentionally with ulterior motive without alleging any specific overt act against him in the complaint petition. 6. Learned Counsel further submitted that the hand book 'Saumya Vyaktitva Ki Talash' was never written under the direction of the petitioner nor any evidence was adduced by the complainant in support of his contention. It was published by Staya Bharti, a separate body of publication having a separate Administrative Committee duly run by Jesuit Organization to which the petitioner was not concerned and having no control at any point of time thereon, the learned Counsel added. 7. Mr. Bharti, the learned Counsel asserted that first page of the book (Annexure-3 at page 52) clearly indicated that it was written by 'Ranchi Dharm Prashikshan Dal' under the direction of Navjyoti Niketan, Patna. In the next page it was printed "Staya Bharti Prakashan" printed in Catholic Press, Ranchi which substantiated that the book was neither written on the instruction of the petitioner nor any direction was given by him in this regard for its printing or publication.

3 3 8. Mr. Bharti further explained that in the second internal page of the book 'Saumya Vyaktitva Ki Talash' the name of the petitioner appears as " Telesphore P. Toppo, Archbishop of Ranchi ". The word "IMPRIMATUR" has got its latin origin having its dictionary meaning 'to provide permission to print a book'. From the book itself, it would be evident that such endorsement was made by the petitioner on The Counsel emphatically asserted that the petitioner Arch Bishop disowned the contents, expression or any kind of view expressed therein. His name was used only as Head of Catholic Christian Community. Neither in the complaint petition nor in his statement recorded on solemn affirmation, the complainant alleged that the petitioner was the writer or publisher of the said book so as to attract offence under Sections 153A/295A/298 and 120B of the Indian Penal Code and therefore, in mechanical exercise and without application of judicial mind, the learned Judicial Magistrate observed that a prima facie offence was made out against the petitioner and others which could not be sustained under law. The learned Counsel on the point of maintainability of criminal prosecution submitted that the occurrence took place on being the date of publication of the said book, the complaint by the complainant was filed on and cognizance of the offence was taken by the C.J.M. on by which the case record was transferred to the Court of Shri S.N. Sikdar, Judicial Magistrate, Ranchi who after enquiry found a prima facie case by an order dated , after lapse of 20 years of alleged publication and printing of the hand book which was time barred under Section 468(2)(c) Code of Criminal Procedure. The punishment prescribed for the offence under Section 153A of the Indian Penal Code, three years, under Section 295A of the Indian Penal Code- three years, under Section 298 I.P.C.-one year and that the maximum period prescribed for taking cognizance under Section 468(2) (c) Code of Criminal Procedure was only three years from the date of alleged occurrence i.e. the printing and publication of the hand book, 'Somya Vyaktitva Ki Talas' and therefore, the order impugned dated was itself hopelessly barred by limitation and therefore, cannot be sustained under law. Similarly, no sanction was obtained under Section 196 Code of Criminal Procedure to proceed against the petitioner for the alleged offence under Sections 153A/295A/298/120B of the Indian Penal Code. Section 196 Code of Criminal Procedure provides;- " 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 153-A,[Section 295-A or sub-section (1) of Section 505] of the Indian Penal Code (45 of 1860), or (b) (c) a criminal conspiracy to commit such offence, or any such abetment, as is described in Section 108-A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. [(1-A) No Court shall take cognizance of- (a) any offence punishable under Section 153-B or sub-section

4 4 (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.] (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit [an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary. (3) The Central Government or the State Government may, before according sanction [under sub-section (1) or sub-section (1-A) and the District Magistrate may, before according sanction under sub-section (1-A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of Section 155." 9. Heard Mr. Vishal Tiwari, the learned Counsel on behalf of the complainant Opposite Party and Mr. Tapas Roy, A.P.P. on behalf of the State Opposite Party, who did not dispute the legal position asserted by the learned Counsel Mr. Bharti, appearing for the petitioner. 10. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, I find that by the order impugned dated the learned Judicial Magistrate expressed his subjective satisfaction that a prima facie offence under Sections 153A, 295A, 298 and 120B I.P.C. was maintainable against the petitioner and others in Complaint Case No.1314 of 2010 to proceed against them after he held enquiry under Section 202 Code of Criminal Procedure. 11. I subscribe the contention as made and find substance in the arguments that the cognizance of offence taken by the C.J.M., Ranchi on by transferring the record to the Judicial Magistrate, Ranchi for enquiry and subsequently the order recorded by the Judicial Magistrate aforesaid with respect to prima facie offence found against the petitioner after twenty years of the publication of book 'Somya Vyaktitva Ki Talas' is barred by limitation under Section 468(2) (c) of the Code of Criminal Procedure, as such, the petitioner and other accused cannot be criminally proceeded in the instant case. It is nowhere mentioned that the Judicial Magistrate had condoned the delay in exercise of his discretion U/S 473 Cr.P.C. 12. Similarly, I find substance that the Court without obtaining sanction under Section 196 Code of Criminal Procedure directed summons to be issued to the petitioner and other accused for the alleged offence calling upon to appear in the case which amounts to misuse of the process of the Court and cannot be sustained under law.

5 5 13. In the given facts and circumstances, the criminal proceeding of the petitioner Cardinal Telesphore P. Telesphore P. Cardinal Toppo was not maintainable in Complaint Case No.1314 of As such, the criminal proceeding of the petitioner in Complaint Case No.1314 of 2010 including the part of the order impugned by which summons was directed to be issued to him is quashed and this petition is allowed. P.K.S./N.A.F.R. [D.K.Sinha,J.]