Unfortunate That Everyone Wants To Show That Their Religion And God Are Supreme: Bombay High Court On "Vande Mataram" Row

The Nagpur Bench of the Bombay High Court on Wednesday quashed the FIR lodged against an army man and a doctor who allegedly outraged sentiments of Muslims and asked few men to "either say Vande Mataram or go to Pakistan".

A division bench of Justices Vibha Kankanwadi and Vrushali Joshi however lamented that now-a-days everybody wants to show that his or her religion or God is the Supreme. It emphasised that India is a secular country and people should respect each other's religions.

"We are constrained to observe that now-a-days people have become more sensitive about their religions, may be more than before and everybody wants to impress as to how his religion or God is Supreme. We are staying in the democratic secular country, where everybody should respect the religion, caste, creed etc. of another. But at the same time, we would also say that if one person says that his religion is Supreme, then the other person may not immediately react. There are ways and means to react on such sensitive issues," the bench observed.

The bench was hearing petitions filed by one Pramod Shendre (41), an army man, and one Dr Subhash Waghe (47). The duo were booked on a complaint filed by thirty-eight year old Shahbaz Siddiqui on August 3, 2017.

According to Siddiqui, he was added in a WhatsApp group named "Narkhed Ghadamodi" which comprised of around 150 to 200 persons, from both Hindu and Muslim communities. The complainant alleged that the two applicants (Shendre and Waghe) were posting some objectionable messages about the Muslim religion and were annoyed to know that some of the group members including Siddiqui were not ready to chant "Vande Mataram" and therefore, they told such members to leave India and live in Pakistan as they do not want to chant "Vande Mataram".

The FIR further stated that on the subsequent day, the complainant visited Dr Waghe's clinic to make him understand not to speak ill about their religion, however, there was an altercation. Accordingly, an FIR was lodged under sections 295A (outraging religious sentiments), 506 (criminal intimidation) and 504 (intentional insult to breach peace) of the Indian Penal Code (IPC).

The judges noted that despite there being 150 to 200 group members from both the communities, the prosecution recorded statements of only 4 boys, all of whom were Muslims and testified that they were not much active in group but the accused persons had been outraging the religious sentiments by their posts in the WhatsApp group.

"We are again constrained to observe that all these four witnesses are from the same community/religion to which the non-applicant No.2 belongs. A witness says that the members in the group discussed political issues. We can foresee that when the political issues are discussed, then it will definitely give heated exchange of thoughts and there would be fire-works," the judges observed.

The bench noted various loopholes in the investigation and resultant chargesheet filed by the local police in Narkhed and expressed anguish over the same.

"Taking the note of the evidence i.e. collected, we are of the opinion that the Investigating Authority had adopted a 'pick and choose' method and recorded the statements of only those witnesses who are from the same community of the informant, when the group consisted of more than 150 to 200 members from the Hindu and Muslim Communities. There was no investigation as to who was the admin of the group, because none of these four witnesses claimed that they are the admin. The statement of admin was very much important, when such activity was going on as to what he did was also required to be considered," the judges said in the order.

The general statements of those witnesses that the applicants were speaking against their community, will not be considered as intentional insult, the judges held, adding, "Their statements do not show what was the triggering point and when they themselves are not saying that they felt that these applicants are insulting them on their religious beliefs, then it cannot be said that the ingredients of Section 295A of the IPC are attracted."

Another point that cropped up is that those messages were end to end encrypted that means they could not have been seen by third person, then whether it can be gathered that the said act attracts Section 295A of the IPC, the bench said. It pointed out that the Investigating Officer failed to collected names of all the group members. It is not stated in the charge-sheet and/or FIR how many of the members of Muslims, the judges pointed out.

"Only four witnesses and one informant cannot be counted as 'class' as contemplated in Section 295A of the IPC. We are of the opinion that the offence under Section 295A of the IPC is not transpiring from the contents of the FIR, together with the material collected in the charge-sheet," the bench held.

Further, the bench noted that there was an altercation between the parties at the clinic of applicant Dr Waghe. The court noted that the complainant went to the clinic to give an understanding to Dr Waghe however, there was an altercation between them. He then left the clinic and returned again in the afternoon with some men, which again led to some altercation.

"All these facts would definitely show that the informant was the aggressor and went to the hospital of Dr Waghe to instigate him. If he was the cause for instigation, then he should also ready for reaction. If the applicants had reacted, then it will not amount to any offence, as from the contents of the FIR we do not find that they were disproportionate," the judges said.

Appearance:

Advocate Sameer Sonwane appeared for the Applicants

Additional Public Prosecutor Anup Badar represented the State

Advocate RS Akbani appeared for the Complainant.

Case Details: Pramod Shendre vs State of Maharashtra (Criminal Application 1077 of 2023)

Click here to Read/Download Judgment.