Delhi District Court
Amita Sachdeva vs State Of Nct Of Delhi And Ors on 19 August, 2025
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Cr Revision 74/2025
Amita Sachdeva
Vs.
State & Ors.
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05 NEW DELHI
DISTRICT : PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision No.74/2025
In the matter of :-
Amita Sachdeva
W/o Sh. Nikhil Sachdeva
N-26, Malviya Nagar,
New Delhi-110017
.....Petitioner
(through Sh. Markand D. Adkar, Senior Advocate)
Versus
1. State of NCT of Delhi
Through the SHO
PS: Parliament Street
New Delhi
.....Respondent No. 1
(through Sh. Mukul Kumar, Addl. PP for the State)
2. Delhi Art Gallery Pvt. Ltd.
Through its CEO & MD
Ashish Anand
22A, Windsor Place, Janpath,
New Delhi-110001
.....Respondent No. 2
3. Sh. Ashish Anand
CEO & MD, Delhi Art Gallery
22A, Windsor Place, Janpath,
New Delhi-110001
.....Respondent No. 3
4. Sh. Ashwani Anand
Director, Delhi Art Gallery
22A, Windsor Place, Janpath,
New Delhi-110001
.....Respondent No. 4
(Respondent nos.2 to 4 represented through
Sh. Madhav Khurana, Senior Advocate
and Sh. Piyush Swami, Adv.)
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CRIMINAL REVISION UNDER SECTION s. 438, 440 & 441 BNSS
Date of institution : 04.02.2025
Date when judgment reserved : 18.07.2025
Date of Judgment : 19.08.2025
JUDGMENT
1. This Criminal Revision Petition has been filed under Section 438 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the order
dated 22.01.2025 passed by the learned Judicial Magistrate First Class
(JMFC), Patiala House Courts, New Delhi, in Ct. Cases/59143/2024 titled
“Amita Sachdeva Vs. State & Ors.” (hereinafter referred to as the
“Impugned Order”).
2. By way of the Impugned Order, the learned JMFC dismissed the
Petitioner’s application under Section 175(3) BNSS, seeking directions
for registration of a First Information Report (FIR) and police
investigation into alleged offences under Section 299 of the Bharatiya
Nyaya Sanhita, 2023 (BNS), pertaining to deliberate and malicious acts
intended to outrage religious feelings. Instead, the learned JMFC directed
that the matter proceed as a complaint case under Section 223 BNSS,
with notices to be issued to the proposed accused (Respondents Nos. 2 to
4) in terms of the first proviso to Section 223 BNSS.
3. The Petitioner prays for setting aside the Impugned Order, registration of
an FIR, and a thorough police investigation. Interim relief in the form of a
stay on the proceedings before the learned JMFC has also been sought.
Respondents Nos. 2 to 4, who are associated with the Delhi Art Gallery,
have filed a reply opposing the petition, inter alia, on the grounds that
sufficient evidence is already available for the complaint to proceed
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without police investigation, and that the Impugned Order is in
accordance with settled legal principles.
Brief Facts
3. The factual matrix, as gleaned from the record, is as follows:
o On 04.12.2024, the Petitioner visited an exhibition titled “Husain:
The Timeless Modernist” at the Delhi Art Gallery, where she
allegedly observed paintings depicting Hindu deities in a manner
she found offensive and insulting to religious sentiments. These
paintings were attributed to the late artist M.F. Husain.
o On 09.12.2024, the Petitioner lodged a complaint with the Station
House Officer (SHO), Parliament Street Police Station, alleging
commission of offences under Section 299 BNS by Respondents
Nos. 2 to 4 (gallery officials). No FIR was registered, prompting
the Petitioner to approach the learned JMFC under Section 175(3)
BNSS on 12.12.2024, along with a complaint under Section 223
BNSS.
o The Petitioner also filed applications under Section 94 BNSS for
preservation and seizure of evidence, including CCTV footage, the
Network Video Recorder (NVR), and the allegedly offensive
paintings. These applications were allowed by the learned JMFC
on 18.12.2024, 19.12.2024 (rectified order), and subsequent dates,
resulting in the seizure and preservation of the relevant evidence by
the Investigating Officer (IO).
o An Action Taken Report (ATR) dated 20.01.2025 was submitted by
the IO, stating that a preliminary inquiry revealed no cognizable
offence, as the exhibition was held in a private space for displaying
original artworks, lacking the requisite malicious intent under
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Section 299 BNS. The ATR noted that the seized evidence (CCTV
footage, NVR, and paintings) had been preserved and produced
before the court.
o Vide the Impugned Order dated 22.01.2025, the learned JMFC
dismissed the Section 175(3) BNSS application, observing that the
allegations were not grave enough to warrant police investigation
at the pre-cognizance stage, as the Petitioner possessed sufficient
evidence (including photographs and seized materials) to proceed
as a complaint case. The matter was fixed for issuance of notices to
the proposed accused on 12.02.2025.
o Aggrieved, the Petitioner filed the instant revision petition on
04.02.2025.
Submissions of the Parties
4. Learned Senior counsel for the Petitioner argued that the Impugned Order
is erroneous, as it violates the mandate in Lalita Kumari Vs. Government
of Uttar Pradesh (2014) 2 SCC 1, requiring mandatory FIR registration
for cognizable offences. It was contended that the offences disclosed
necessitate a thorough police investigation, including forensic analysis of
seized evidence, verification of the paintings’ authenticity, and inquiry
into potential financial fraud or tampering. The Petitioner emphasized
that she cannot undertake such investigations herself, and the learned
JMFC’s reliance on preliminary inquiries by the police was misplaced.
Petitioner in this regard relied upon judgments titled: Om Prakash
Ambadkar Vs. State of Maharashtra, 2025 INSC 139; Alok Kumar Vs.
Harsh Mandar, 2023 SCC OnLine Delhi 4213; Shahin Abdulla Vs. Union
of India, WPC 940 of 2022 dated 21.10.2022 & Ashwani Upadhyay Vs.
Union of India, WPC 943 of 2021 dated 28.04.2023.
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5. Per contra, learned Senior counsel for Respondents Nos. 2 to 4 contended
that the Petition is misconceived, as all relevant evidence (CCTV footage,
NVR, paintings, and exhibition details) has already been seized and is
available on record. No police investigation is required, as the Petitioner
can prove her case through evidence in her possession or by summoning
witnesses under Section 223 BNSS. If any further inquiry is needed post-
cognizance, the learned Magistrate retains power under Section 225
BNSS (equivalent to Section 202 CrPC) to direct limited police
assistance. Reliance was placed on Priyanka Srivastava Vs. State of Uttar
Pradesh (2015) 6 SCC 287 and Om Prakash Ambadkar Vs. State of
Maharashtra, 2025 INSC 139 to argue that mechanical directions for FIR
registration are impermissible where evidence is readily available.
Reliance was also placed on several judgments to argue that no
cognizable offence is made out, which is discussed under a separate
heading.
6. Scope of Revision under section 438 BNSS (397 Cr.P.C 1973)
Prior to adjudicating the case on its merits, it is essential to delineate the
scope and extent of these proceedings as well as the authority vested in
this court under section 438 BNSS.
Section 438 BNSS read as under:
“438. Calling for records to exercise powers of revision.
(1)The High Court or any Sessions Judge may call for and examine the record of
any proceeding before any inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order, recorded or passed, and as
to the regularity of any proceedings of such inferior Court, and may, when calling,
for such record, direct that the execution of any sentence or order be suspended,
and if the accused is in confinement that he be released on his own bond or bail
bond pending the examination of the record.
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Explanation.-All Magistrates, whether Executive or Judicial, and whether
exercising original or appellate jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub-section and of section 439.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in
relation to any interlocutory order passed in any appeal, inquiry, trial or other
proceeding.
(3) If an application under this section has been made by any person either to the
High Court or to the Sessions Judge, no further application by the same person
shall be entertained by the other of them.”
The wording of the section is verbatim the same as of section 397 Code
of Criminal Procedure 1973.
A plain reading of Section 438 of the BNSS clearly indicates that Section
438(1) allows aggrieved parties to challenge the correctness, legality, or
propriety of any finding, sentence, or order issued by the trial court. Such
challenges can be brought before a revisional court, namely the High
Court or the Sessions Judge, as Section 438 confers concurrent
jurisdiction upon both judicial authorities.
Section 438 (2) BNSS prohibits the revision powers under Section 438(1)
BNSS from being used on interlocutory orders in appeals, enquiries,
trials, or other proceedings. This creates an explicit legislative bar against
revising such orders.
It is well settled law that scope of revisional jurisdiction is limited to the
extent of satisfying itself as to the correctness, legality or propriety of any
finding, sentence or order passed by the Trial Court and jurisdiction under
section 438 BNSS to be exercised for setting right a patent defect or an
error of jurisdiction or law cannot be equated with the power of Appellate
Court.
As regards the scope of section 397 Cr.P.C (analogous to section 438
BNSS) in judgment titled as ‘Amit Kapoor Vs. Ramesh Chander‘, (2012)
9 SCC 460, Hon’ble Supreme Court of India observed as under:-
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“8. ….Section 397 of the Code vests the court with the power to call for and
examine the records of an inferior court for the purposes of satisfying itself as
to the legality and regularity of any proceedings or order made in a case. The
object of this provision is to set right a patent defect or an error of jurisdiction
or law . There has to be a well- founded error and it may not be appropriate for
the court to scrutinize the orders, which upon the face of it bears a token of
careful consideration and appear to be in accordance with law…….”
The Hon’ble Apex Court in ‘New India Assurance Co. Ltd. Vs. Krishna
Kumar Pandey’, Crl. Appeal No.1852 of 2019 decided on 06.12.2019,
made the following observations :
“8. The scope of the revisional jurisdiction of the High Court (or Sessions
Court) under Section 397 Cr.P.C, is limited to the extent of satisfying itself as
to the correctness, legality or propriety of any finding, sentence or order
passed by an inferior Court. The revisional Court is entitled to look into the
regularity of any proceeding before an inferior Court. As reiterated by this
Court in a number of cases, the purpose of this revisionsal power is to set right
a patent defect or an error of jurisdiction or law.”
Hon’ble Supreme Court of India in Sanjaysinh Ramarao Chavan Vs.
Dattatray Gulabrao Phalke, (2015) 3 SCC 123 held:
“14. ………Unless the order passed by the Magistrate is perverse or the view
taken by the court is wholly unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of records, the Revisional
Court is not justified in setting aside the order, merely because another view is
possible. The Revisional Court is not meant to act as an appellate court. The
whole purpose of the revisional jurisdiction is to preserve the power in the
court to do justice in accordance with the principles of criminal jurisprudence.
The revisional power of the court under Sections 397 to 401 CrPC is not to be
equated with that of an appeal. Unless the finding of the court, whose decision
is sought to be revised, is shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or where the decision is based on
no material or where the material facts are wholly ignored or where the
judicial 0discretion is exercised arbitrarily or capriciously, the courts may not
interfere with decision in exercise of their revisional jurisdiction”. (emphasis
supplied).
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Scope of revision has been explained in para 9 of judgment of Hon’ble
High Court of Delhi Taron Mohan Vs. State & Anr. 2021 SCC OnLine
312 which reads as under:
“9. The scope of interference in a revision petition is extremely narrow. It is
well settled that Section 397 CrPC gives the High Courts or the Sessions
Courts jurisdiction to consider the correctness, legality or propriety of any
finding inter se an order and as to the regularity of the proceedings of any
inferior court. It is also well settled that while considering the legality,
propriety or correctness of a finding or a conclusion, normally the revising
court does not dwell at length upon the facts and evidence of the case. A court
in revision considers the material only to satisfy itself about the legality and
propriety of the findings, sentence and order and refrains from substituting its
own conclusion on an elaborate consideration of evidence. ”
The precise purpose of Revision is to examine the correctness, legality and
propriety of the order in question and to set right a patent defect or an error
of jurisdiction or law. Needless to say, that the power of revision needs to
be exercised fairly, rationally and judiciously in order to put right any
manifest error of law or jurisdiction.
In light of the aforesaid judgments, the Court proceeds to analyse the
impugned order.
Analysis and Reasoning
7. Whether the allegations disclose commission of cognizable offence?
a. During the course of arguments, Ld. Senior Counsel for
Respondent No. 2 to Respondent No. 4 filed a compilation of
Judgments particularly with respect to deceased painter Maqbool
Fida Husain to make submission that no offence is made out on the
basis of the allegations made in the complaint and as such the Ld.
Magistrate rightly dismissed the application of the revisionist u/s
175(3) of BNSS. In this regard, he particularly relied upon
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Judgment titled Maqbool Fida Husain Vs. Rajkumar Pandey 2008
Cri LJ 4107 wherein a painting made by the said painter entitled
‘Bharat Mata’ was advertised as part of an online auction for
charity for Kashmir Earthquake victims. Hon’ble High Court,
while considering the scope and ambit of Section 292 IPC, quashed
the summoning orders and warrants of arrest issued against the
petitioner therein (MF Hussain).
b. As far as the cognizance of offence u/s 299 BNS is concerned, it
may be noted that the Ld. Magistrate in view of the proviso to
Section 223 of BNSS has fixed a date for hearing Respondent No.
2 to Respondent 4 on the point of taking cognizance of the offences
alleged in the complaint. As the Ld. Magistrate is yet to hear the
complainant/revisionist as well as the aforesaid respondents on the
point of taking cognizance of the offence mentioned in the
complaint, hence, this court do not deem it appropriate to delve too
much into the said issue. However, for the purpose of disposal of
the present revision petition, the court would like to reproduce Para
103 of the aforesaid judgment which particularly deals with
depicting of Hindu Gods and Godesses in nude/objectionable
forms. The said para no. 103 is reproduced as under:
103. In my considered view, the alleged past misconduct of the
petitioner cannot have any bearing on the present case because there
has been nothing which has come on record to prove the converse. It is
made clear that the paintings depicting Hindu Gods/Goddesses in nude
by the petitioner do not form a subject matter of the present case and as
such the learned Counsels have been unable to bring to the notice of
this Court any cases/complaints pending or decided in this regard to go
against the petitioner. The persons who may feel aggrieved by those set
of paintings have an appropriate remedy in law to get their rights
redressed. Hence, commenting on those paintings would be prejudging
the said paintings and passing a verdict on the same thus prejudicing
the rights of the accused/petitioner.
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(emphasis supplied)
c. In light of the aforesaid paragraph, this court proceeds further to
decide the application under consideration while assuming, though
not categorically observing, that the complaint do disclose
commission of cognizable offence u/s 299 BNS.
8. Impugned order whether perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or whether the decision is based on
no material or whether the material facts are wholly ignored or whether
the judicial discretion is exercised arbitrarily or capriciously?
a. Having perused the record, including the Impugned Order, ATRs,
seized evidence, and submissions, this Court finds no merit in the
revision petition. The primary ground for challenge–that police
investigation is essential–does not withstand scrutiny. The
discretion under Section 175(3) BNSS must be exercised
judiciously, with application of mind, and not mechanically. As laid
down in Subhkaran Luharuka & Anr. v. State & Anr., 2010 (170)
DLT 516, the Hon’ble Delhi High Court provided comprehensive
guidelines for Magistrates dealing with applications under Section
156(3) CrPC (now Section 175(3) BNSS). These guidelines
emphasize:
(i) Ensuring the complainant approached the police under
Section 154(1) and (3) CrPC (now Section 173 BNSS)
before invoking the Magistrate’s jurisdiction.
(ii) The Magistrate forming an opinion on whether
cognizable offences are disclosed, whether the matter falls
within jurisdiction, and whether police investigation is
necessary. A preliminary satisfaction is required, and cogent
reasons must be recorded.
(iii) The Magistrate should ordinarily proceed under Chapter
XV CrPC (now Chapter XV BNSS) by taking cognizance
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and recording evidence, postponing process if needed under
Section 202 CrPC (now Section 225 BNSS).
(iv) Directions under Section 156(3) CrPC should only be
issued if police investigation is essential for collecting
evidence not in the complainant’s possession or procurable
without police aid, with reasons why Chapter XII CrPC
(now Chapter XIII BNSS) is preferred over Chapter XV.
b. In the landmark judgment of Lalita Kumari v. State of UP, AIR
2014 SC 187, the Constitutional Bench of the Hon’ble Supreme
Court held that registration of an FIR is mandatory for cognizable
offences under Section 154 CrPC (now Section 173 BNSS), but
permitted a preliminary inquiry in limited categories where the
information does not clearly disclose a cognizable offence.
However, this must be completed within seven days, and the police
cannot evade registration arbitrarily.
c. This principle was nuanced in Ramdev Food Products Private
Limited vs. State of Gujarat, AIR 2015 SC 1742 , where a Three-
Judge Bench of the Hon’ble Supreme Court clarified that directions
under Section 156(3) CrPC (175(3) BNSS) cannot be issued
mechanically. The Magistrate must apply judicial mind, assess the
credibility of information, and weigh the interest of justice before
directing investigation:
“…The direction under Section 156(3) is to be issued, only after
application of mind by the Magistrate. When the Magistrate does
not take cognizance and does not find it necessary to postpone
instance of process and finds a case made out to proceed forthwith,
direction under the said provision is issued. In other words, where
on account of credibility of information available, or weighing the
interest of justice it is considered appropriate to straightaway direct
investigation, such a direction is issued. Cases where Magistrate
takes cognizance and postpones issuance of process are cases
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where the Magistrate has yet to determine ‘existence of sufficient
ground to proceed….'”
d. Further, in Priyanka Srivastava & Anr. v. State of U.P. & Ors.,
(2015) 6 SCC 287, the Hon’ble Supreme Court underscored the
need for caution:
“…26. At this stage it is seemly to state that power under Section
156(3) warrants application of judicial mind. A court of law is
involved. It is not the police taking steps at the stage of Section 154
of the code. A litigant at his own whim cannot invoke the authority of
the Magistrate. A principled and really grieved citizen with clean
hands must have free access to invoke the said power. It protects the
citizens but when pervert litigations takes steps to harass their fellows
citizens, efforts are to be made to scuttle and curb the same.
In our considered opinion, a stage has come in this country where
Section 156(3) Cr.P.C. applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation of the
jurisdiction of the Magistrate… This affidavit can make the applicant
more responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain persons… We have
already indicated that there has to be prior applications under Section
154(1) and 154(3) while filing a petition under Section 156(3). Both
the aspects should be clearly spelt out in the application and
necessary documents to that effect shall be filed. The warrant for
giving a direction that an the application under Section 156(3) be
supported by an affidavit so that the person making the application
should be conscious and also endeavour to see that no false affidavit
is made… We are compelled to say so as a number of cases pertaining
to fiscal sphere, matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption cases and the cases
where there is abnormal delay/laches in initiating criminal
prosecution, as are illustrated in Lalita Kumari are being filed….”
9. Applying these principles to the present case, the Impugned Order
reflects due application of mind. The circumstances do not justify
interference with the Impugned Order for the following reasons:
a) No Requirement for Police Investigation: The Petitioner’s complaint
revolves around the display of allegedly offensive paintings at a
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private exhibition. Key evidence–photographs taken by the
Petitioner, CCTV footage, NVR metadata, and the paintings
themselves–has already been seized and preserved pursuant to her
own applications under Section 94 BNSS. The ATR confirms that the
exhibition was acknowledged, but no malicious intent was discerned
in the preliminary inquiry. The Petitioner possesses direct evidence
(her photographs and observations) and can summon witnesses (e.g.,
gallery staff or experts) to prove ingredients under Section 299 BNS,
such as deliberate malice or outrage to religious feelings. Allegations
of fraud or tampering are unsubstantiated and appear speculative, not
warranting preemptive police probe.
Addressing specifically Ground K of the revision petition, wherein
the Petitioner asserts that the act satisfies the essential ingredients of
Section 299 BNS–namely,
(a) deliberate and malicious intent to provoke and cause harm by
outraging religious feelings;
(b) outraging the religious feelings of a particular class of Indian
citizens;
(c) use of words, either spoken or written, or by signs or by visible
representations or through electronic means or otherwise for
dissemination; and
(d) insult or attempt to insult the religion or religious beliefs of that
class–and thus necessitates police investigation to substantiate
these elements, this Court finds the contention untenable.
The precise text of Section 299 BNS, as confirmed through authoritative
sources, requires proof of deliberate and malicious intention to outrage
religious feelings through insulting means, but the investigation sought
by the Petitioner in this regard–such as forensic examination of the
paintings to verify authenticity, detailed inquiry into the subjective intent
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of the Respondents, or forensic analysis of dissemination methods–is
not essential to establish these ingredients at the pre-cognizance stage.
The seized paintings and exhibition records, along with CCTV footage,
serve as direct evidence of the “visible representations” under ingredient
(c), demonstrating the mode of alleged dissemination without requiring
specialized forensics, as the artworks’ existence and display are already
preserved on record.
Similarly, the potential “insult or attempt to insult” under ingredient (d)
can be assessed through the Petitioner’s own photographs, eyewitness
observations, and the inherent content of the paintings, which are
tangible and accessible for judicial scrutiny during proceedings under
Section 223 BNSS.
For ingredient (b), the alleged outrage to religious feelings of a particular
class can be established via the Petitioner’s testimony, supported by
affidavits or expert opinions on cultural sensitivities, procurable without
police intervention.
As for deliberate and malicious intent under ingredient (a)–the most
subjective element–this must be inferred from circumstantial evidence,
including the context of the exhibition (e.g., its private nature,
promotional materials, and gallery communications), as held in Ramji
Lal Modi v. State of U.P. (AIR 1957 SC 620) , wherein the Hon’ble
Supreme Court emphasized that intent is to be gauged from the language
or representations used, not necessitating extrinsic police probes unless
evidence is wholly inaccessible. Here, such circumstantial proof is
readily available on record and can be adduced through witness
examination or documentary evidence under Section 223 BNSS,
obviating the need for police-led inquiries into motive.
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Directions under Section 175(3) BNSS are not warranted merely because
ingredients of a congizable offencve may be prima facie disclosed. As
per Subhkaran Luharuka & Anr. v. State & Anr. (supra) and Priyanka
Srivastava & Anr. v. State of U.P. & Ors. (supra), such directions are
exceptional, reserved for instances where evidence is beyond the
complainant’s reach without state agency assistance, and must reflect
judicious application of mind to avoid mechanical invocation. In this
case, the ingredients can be substantiated through existing materials,
rendering any further police investigation superfluous at this juncture
and aligning with the principle that Magistrates should prefer
proceedings under Chapter XV & XVI BNSS unless compelling reasons
dictate otherwise. As held in Om Prakash (supra), where the complainant
holds evidence or can procure it without police aid, directions under
Section 175(3) BNSS should not be issued mechanically. The learned
JMFC rightly noted that the matter does not involve complex facts
requiring extensive police resources at this juncture.
As stated earlier, both the parties have relied upon the judgment titled
Om Prakash (supra), which deals with the interpretation of Section 156
Cr.P.C. and corresponding section of BNSS i.e. Section 175. As both the
parties have relied upon the said judgment, accordingly, para 23 to para
35 of the said judgment dealing with the interpretation of the aforesaid
provision, are reproduced as under:
“23.This Court in a plethora of its decisions, more particularly in the case of
Ramdev Food Products (P) Ltd. v. State of Gujarat reported in (2015) 6 SCC
439, has laid emphasis on the fact that the directions under Section 156(3)
should be issued only after application of mind by the Magistrate. Paragraph
22 of the said decision reads thus:-
“22. Thus, we answer the first question by holding that the direction
Under Section 156(3) is to be issued, only after application of mind by
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the Magistrate. When the Magistrate does not take cognizance and does
not find it necessary to postpone issuance of process and finds a case
made out to proceed forthwith, direction under the said provision is
issued. In other words, where on account of credibility of information
available, or weighing the interest of justice it is considered appropriate
to straightaway direct investigation, such a direction is issued. Cases
where Magistrate takes cognizance and postpones issuance of process
are cases where the Magistrate has yet to determine “existence of
sufficient ground to proceed”. Category of cases falling under Para 120.6
in Lalita Kumari (supra) may fall Under Section 202 Subject to these
broad guidelines available from the scheme of the Code, exercise of
discretion by the Magistrate is guided by interest of justice from case to
case.”
24. Thus, there are prerequisites to be followed by the complainant before
approaching the Magistrate under Section 156(3) of the Cr.P.C. which is a
discretionary remedy as the provision proceeds with the word ‘may’. The
Magistrate is required to exercise his mind while doing so. He should pass
orders only if he is satisfied that the information reveals commission of
cognizable offences and also about the necessity of police investigation for
digging out of evidence neither in possession of the complainant nor can be
procured without the assistance of the police. It is, thus, not necessary that in
every case where a complaint has been filed under Section 200 of the
Cr.P.C. the Magistrate should direct the Police to investigate the crime
merely because an application has also been filed under Section 156(3) of
the Cr.P.C. even though the evidence to be led by the complainant is in his
possession or can be produced by summoning witnesses, with the assistance
of the court or otherwise. The issue of jurisdiction also becomes important at
that stage and cannot be ignored.
25. In fact, the Magistrate ought to direct investigation by the police only where
the assistance of the Investigating Agency is necessary and the Court feels
that the cause of justice is likely to suffer in the absence of investigation by
the police. The Magistrate is not expected to mechanically direct
investigation by the police without first examining whether in the facts and
circumstances of the case, investigation by the State machinery is actually
required or not. If the allegations made in the complaint are simple, where
the Court can straightaway proceed to conduct the trial, the Magistrate is
expected to record evidence and proceed further in the matter, instead of
passing the buck to the Police under Section 156(3) of the Cr.P.C. of course,
if the allegations made in the complaint require complex and complicated
investigation which cannot be undertaken without active assistance and
expertise of the State machinery, it would only be appropriate for the
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Magistrate to direct investigation by the police authorities. The Magistrate
is, therefore, not supposed to act merely as a Post Office and needs to adopt
a judicial approach while considering an application seeking investigation
by the Police.
26. The incident is of the year 2012. This Court while admitting this appeal had
stayed the investigation.
27. In the overall view of the matter, we are convinced that no case is made out
to put the appellant/accused to trial for the alleged offence. Continuance of
the investigation by the police will be nothing short of abuse of the process
of law.
28. However, before we part with the matter, we deem it necessary to discuss
the changes brought to the scheme of Section 156 of the Cr.P.C. by the
enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “the
BNSS”).
29. Section 175 of the BNSS corresponds to Section 156 of the Cr.P.C. Sub-
section (1) of Section 175 of the BNSS is in pari materia with sub-section
156(1) of the Cr.P.C. except for the proviso which empowers the
Superintendent of Police to direct the Deputy Superintendent of Police to
investigate a case if the nature or gravity of the case so requires. Sub-section
(2) of Section 175 the BNSS is identical to Section 156(2) of the Cr.P.C.
Section 175(3) of the BNSS empowers any Magistrate who is empowered to
take cognizance under Section 210 to order investigation in accordance with
Section 175(1) and to this extent is in pari materia with Section 156(3) of
Cr.P.C. However, unlike Section 156(3) of the Cr.P.C., any Magistrate,
before ordering investigation under Section 175(3) of the BNSS, is required
to:
a. Consider the application, supported by an affidavit, made by the
complainant to the Superintendent of Police under Section 173(4) of the
BNSS;
b. Conduct such inquiry as he thinks necessary; and
c. Consider the submissions made by the police officer.
30. Sub-section (4) of Section 175 of the BNSS is a new addition to the scheme
of investigation of cognizable cases when compared with the scheme
previously existing in Section 156 of the Cr.P.C. It provides an additional
safeguard to a public servant against whom an accusation of committing a
cognizable offence arising in the course of discharge of his official duty is
made. The provision stipulates that any Magistrate who is empowered to
take cognizance under Section 210 of the BNSS may order investigation
against a public servant upon receiving a complaint arising in course of the
discharge of his official duty, only after complying with the following
procedure:
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a. Receiving a report containing facts and circumstances of the incident
from the officer superior to the accused public servant; and
b. Considering the assertions made by the accused public servant as regards
the situation that led to the occurrence of the alleged incident.
31. A comparison of Section 175(3) of the BNSS with Section 156(3) of the
Cr.P.C. indicates three prominent changes that have been introduced by the
enactment of BNSS as follows:
a. First, the requirement of making an application to the Superintendent of
Police upon refusal by the officer in charge of a police station to lodge the
FIR has been made mandatory, and the applicant making an application
under Section 175(3) is required to furnish a copy of the application made
to the Superintendent of Police under Section 173(4), supported by an
affidavit, while making the application to the Magistrate under Section
175(3).
b. Secondly, the Magistrate has been empowered to conduct such enquiry as
he deems necessary before making an order directing registration of FIR.
c. Thirdly, the Magistrate is required to consider the submissions of the
officer in charge of the police station as regards the refusal to register an
FIR before issuing any directions under Section 175(3).
32. The introduction of these changes by the legislature can be attributed to the
judicial evolution of Section 156 of the Cr.P.C. undertaken by a number of
decisions of this Court. In the case of Priyanka Srivastava v. State of U.P.
reported in (2015) 6 SCC 287, this Court held that prior to making an
application to the Magistrate under Section 156(3) of the Cr.P.C., the
applicant must necessarily make applications under Sections 154(1) and
154(3). It was further observed by the Court that applications made under
Section 156(3) of the Cr.P.C. must necessarily be supported by an affidavit
sworn by the applicant. The reason given by the Court for introducing such
a requirement was that applications under Section 156(3) of the Cr.P.C. were
being made in a routine manner and in a number of cases only with a view
to cause harassment to the accused by registration of FIR. It was further
observed that the requirement of supporting the complaint with an affidavit
would ensure that the person making the application is conscious and also to
see that no false affidavit is made. Once an affidavit is found to be false, the
applicant would be liable for prosecution in accordance with law. This
would deter him from casually invoking the authority of the Magistrate
under Section 156(3). The relevant observations made by the Court are
reproduced hereinbelow:
“27. Regard being had to the aforesaid enunciation of law, it needs to be
reiterated that the learned Magistrate has to remain vigilant with regard
to the allegations made and the nature of allegations and not to issue
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directions without proper application of mind. He has also to bear in
mind that sending the matter would be conducive to justice and then he
may pass the requisite order. The present is a case where the accused
persons are serving in high positions in the Bank. We are absolutely
conscious that the position does not matter, for nobody is above the law.
But, the learned Magistrate should take note of the allegations in
entirety, the date of incident and whether any cognizable case is
remotely made out. It is also to be noted that when a borrower of the
financial institution covered under the Sarfaesi Act, invokes the
jurisdiction under Section 156(3) Cr.P.C. and also there is a separate
procedure under the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, an attitude of more care, caution and
circumspection has to be adhered to.
28. Issuing a direction stating “as per the application” to lodge an FIR
creates a very unhealthy situation in society and also reflects the
erroneous approach of the learned Magistrate. It also encourages
unscrupulous and unprincipled litigants, like Respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous steps with courts to bring the
financial institutions on their knees. As the factual exposition would
reveal, Respondent 3 had prosecuted the earlier authorities and after the
matter is dealt with by the High Court in a writ petition recording a
settlement, he does not withdraw the criminal case and waits for some
kind of situation where he can take vengeance as if he is the emperor of
all he surveys. It is interesting to note that during the tenure of
Appellant 1, who is presently occupying the position of Vice President,
neither was the loan taken, nor was the default made, nor was any
action under the SARFAESI Act taken. However, the action under the
SARFAESI Act was taken on the second time at the instance of the
present Appellant 1. We are only stating about the devilish design of
Respondent 3 to harass the appellants with the sole intent to avoid the
payment of loan. When a citizen avails a loan from a financial
institution, it is his obligation to pay back and not play truant or for that
matter play possum. As we have noticed, he has been able to do such
adventurous acts as he has the embedded conviction that he will not be
taken to task because an application under Section 156(3) Cr.P.C. is a
simple application to the court for issue of a direction to the
investigating agency. We have been apprised that a carbon copy of a
document is filed to show the compliance with Section 154(3),
indicating it has been sent to the Superintendent of Police concerned.
29. At this stage it is seemly to state that power under Section 156(3)
warrants application of judicial mind. A court of law is involved. It is
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not the police taking steps at the stage of Section 154 of the Code. A
litigant at his own whim cannot invoke the authority of the Magistrate.
A principled and really grieved citizen with clean hands must have free
access to invoke the said power. It protects the citizens but when
pervert litigations takes this route to harass their fellow citizens, efforts
are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where
Section 156(3) Cr.P.C. applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation of the jurisdiction
of the Magistrate. That apart, in an appropriate case, the learned
Magistrate would be well advised to verify the truth and also can verify
the veracity of the allegations. This affidavit can make the applicant
more responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain persons. That apart, it
becomes more disturbing and alarming when one tries to pick up people
who are passing orders under a statutory provision which can be
challenged under the framework of the said Act or under Article 226 of
the Constitution of India. But it cannot be done to take undue advantage
in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications
under Sections 154(1) and 154(3) while filing a petition under Section
156(3). Both the aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed. The warrant for
giving a direction that an application under Section 156(3) be supported
by an affidavit is so that the person making the application should be
conscious and also endeavour to see that no false affidavit is made. It is
because once an affidavit is found to be false, he will be liable for
prosecution in accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section 156(3). That apart,
we have already stated that the veracity of the same can also be verified
by the learned Magistrate, regard being had to the nature of allegations
of the case. We are compelled to say so as a number of cases pertaining
to fiscal sphere, matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption cases and the cases
where there is abnormal delay/laches in initiating criminal prosecution,
as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] are being filed. That apart, the learned Magistrate would also be
aware of the delay in lodging of the FIR.”
(Emphasis supplied)
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33. In a recent pronouncement of this Court in the case of Babu Venkatesh v.
The State Of Karnataka reported in (2022) 5 SCC 639, the observations
made in Priyanka Srivastava (supra) were referred to and it was held as
follows:
“24. This Court has clearly held that, a stage has come where
applications under Section 156(3)Cr.P.C. are to be supported by an
affidavit duly sworn by the complainant who seeks the invocation of the
jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate case, the learned
Magistrate would be well advised to verify the truth and also verify the
veracity of the allegations. The Court has noted that, applications under
Section 156(3)Cr.P.C. are filed in a routine manner without taking any
responsibility only to harass certain persons.
26. This Court has further held that, prior to the filing of a petition under
Section 156(3)Cr.P.C., there have to be applications under Sections
154(1) and 154(3)Cr.P.C.. This Court emphasises the necessity to file an
affidavit so that the persons making the application should be conscious
and not make false affidavit. With such a requirement, the persons would
be deterred from causally invoking authority of the Magistrate, under
Section 156(3)Cr.P.C.. Inasmuch as if the affidavit is found to be false,
the person would be liable for prosecution in accordance with law.”
(Emphasis supplied)
34. In light of the judicial interpretation and evolution of Section 156(3) of the
Cr.P.C. by various decisions of this Court as discussed above, it becomes
clear that the changes introduced by Section 175(3) of the BNSS to the
existing scheme of Section 156(3) merely codify the procedural practices
and safeguards which have been introduced by judicial decisions aimed at
curbing the misuse of invocation of powers of a Magistrate by unscrupulous
litigants for achieving ulterior motives.
35. Further, by requiring the Magistrate to consider the submissions made by the
concerned police officer before proceeding to issue directions under Section
175(3), BNSS has affixed greater accountability on the police officer
responsible for registering FIRs under Section 173. Mandating the
Magistrate to consider the submissions of the concerned police officer also
ensures that the Magistrate applies his mind judicially while considering
both the complaint and the submissions of the police officer thereby
ensuring that the requirement of passing reasoned orders is complied with in
a more effective and comprehensive manner. ” (emphasis supplied)
Perusal of the aforesaid judgment reveals that it has reiterated the
observations made in Ramdev Food Products (supra) and Priyanka
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Srivastava (supra), while categorically observing that Section 175 of
BNSS has introduced changes to the existing scheme of Section 156(3)
Cr.P.C. to codify the procedural practices and safeguards, which have
been introduced by the judicial decisions aimed for curbing the misuse
of invocation of powers of a Magistrate by unscrupulous litigants for
achieving ulterior motives.
Seen in light of the aforesaid judgments, the Court do not find any
illegality in the impugned order passed by the Ld. Magistrate, wherein
the Ld. Magistrate has passed a reasoned order, while observing that the
paintings as well as CCTV footage have already been seized and as
such, no further investigation and collection of evidence is required on
the part of the investigation agency at this stage, as the evidence is in
the possession of complainant as well as on record.
It may be noted that the Ld. Magistrate has also clarified in para-7 of the
order that if so required, Section 225 BNSS (section 202 Cr.P.C.) can be
resorted to at a later stage.
The revisionist in the list of judgments filed, has also relied upon
another judgment of Hon’ble Delhi High Court, titled as Alok Kumar
Vs. Harsh Mandar, 2023 SCC OnLine Delhi 4213, wherein the Ld.
Magistrate had allowed an application u/s.156(3) Cr.P.C., directing
registration of FIR. The said order came to be challenged before the
Hon’ble High Court and while setting aside the said order and quashing
the FIR, the Court observed in para-126 that keeping in mind the
sensitive nature of allegations and the fact that no evidence of
disharmony had come on record during the preliminary enquiry
conducted by the police, the Court advises that the order for registration
of FIR filed by any community should be passed with more
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circumspection.
Thus, this Court fails to understand as to how the said judgment
supports the revisionist in the present case.
In Shahin Abdulla Vs. Union of India, WPC 940 of 2022 dated
21.10.20221, directions were passed by the Hon’ble Apex Court to the
Commissioners of Police, Delhi, Uttrakhand and U.P., to ensure that
immediate action be taken when any speech or any action takes place,
which attracts offences u/s.153A, 153B, 295A and 505 IPC. It may be
noted that the said order is primarily w.r.t. hate speech and is
distinguishable from the facts of the present case, where the painting of
deceased painter is showcased in a private exhibition.
The petitioner also relied upon the order in case titled Ashwani
Upadhyay Vs. Union of India, WPC 943 of 2021 dated 28.04.2023,
which too relates to hate speech and not to facts like the present one.
Thus after having perused the judgments filed by the petitioner as well
by respondents, this court is of the opinion that the Ld. Magistrate
rightly exercised the discretion vested in him, while dismissing the
application of the petitioner for the registration of FIR.
b) Availability of Inquiry Under Section 225 BNSS, if Needed: Even
assuming arguendo that further inquiry is required, the learned Magistrate
is not powerless. While taking cognizance, under Section 225 BNSS (in
pari materia with Section 202 CrPC), the Magistrate may postpone
process issuance and direct a limited inquiry by a police officer or other
person to ascertain the truth of the complaint. This provision safeguards
the Petitioner’s interests without necessitating FIR registration ab initio. It
ensures judicial oversight and prevents misuse of police machinery for
1
Relied upon by petitioner
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fishing expeditions. Section 202 CrPC (now Section 225 BNSS) balances
the need for inquiry with the avoidance of unnecessary harassment. Here,
if during proceedings under Section 223 BNSS the learned JMFC finds
gaps, such an inquiry can be ordered, rendering immediate police
investigation redundant. The Ld. Magistrate has also noted this in para 7
of the impugned order, while observing “if the same is required at later
stage, then section 225 BNSS can be resorted to.”.
c) Compliance with Lalita Kumari Principles: The Petitioner’s reliance on
Lalita Kumari (supra) is misplaced. While FIR registration is mandatory
for cognizable offences, a preliminary inquiry is permissible where the
information does not clearly disclose such an offence. The police
conducted such an inquiry, concluding no cognizable offence, and the
learned JMFC independently assessed this in the Impugned Order.
d) Absence of Grave Allegations or Prejudice: The allegations, while
sensitive, pertain to artworks in a private gallery, not public incitement or
violence. No communal unrest is reported, and the seized evidence
suffices for adjudication. The Petitioner faces no prejudice, as she can
lead evidence in the complaint case.
10.Revisionary jurisdiction under Section 440 BNSS is limited to correcting
illegality or impropriety, not substituting the Magistrate’s discretion
absent perversity (State of Haryana Vs. Bhajan Lal (1992) Supp (1) SCC
335). No such infirmity exists in the impugned order.
11. Before concluding, the court would like to refer to judgment titled as
Shekhar Bhatia Vs The State 2008 DHC 11259 wherein a similar issue
came up for consideration before Hon’ble Delhi High Court, as directions
were passed by the Magistrate in the said case for the registration of the
FIR. The said order was assailed before the Hon’ble High Court and the
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Hon’ble High Court vide aforesaid judgment, set aside the said order and
quashed the FIR so registered upon the directions of the Magistrate. In
order to bring forth the context in which the said order was passed,
Paragraph 1 to 6 of the said judgment are reproduced as under:
1. By this petition, the petitioner Shekhar Bhatia has assailed an
order dated 30 th March, 2006 passed by the learned Metropolitan
Magistrate in exercise of jurisdiction under Section 156(3) of the Code of
Criminal Procedure directing the SHO of the Police Station, Connaught
Place to investigate the matter by registering the FIR under Section
156(3) of the Code of Criminal Procedure.
2. An article was featured in the daily edition dated lOlh
February, 2006 of the widely circulated newspaper in Delhi, called the
‘Hindustan Times’ in its cultural section informing the public about a
controversy which had arisen at an art auction seeking to sell paintinqs of
various established artists. This publication reads thus:-
“Maqbool Fida Hussain is back where he finds himself often- in the middle of
a controversy over his nudes. This time, he is in the firing lines of the
Hindu Janajagruti Samiti and Vishwa Hindu Parishad over a painting,
Bharat Mata, which has a nude woman’s outline resembling the Indian map.
The artist had earlier faced the ire of hardline Hindutva groups for portraying
goddesses Laxmi, Saraswati and Durga, as well as revered characters Sita
and Draupadi, in the nude. The latest controversial painting, which featured
in an ad for the February 6- 8 auction by Apparaoart Auctions, was
taken off the sale. However, the controversy refuses to die down as
the Samiti has filed a police complaint against Hussain. “We withdrew
the painting because, as the event organizer. it was my job to ensure a smooth
show,” says Sharan Apparao, proprietor of Apparaoart Auctions.
Hussain could not be reached for comments, but he isn’t without supporters.
Says Dadiba Pundole (Pundole Art Gallery), known for its collection and
frequent showing of Husain’s works. “Hussain is intelligent enough to know
what is artistic and what not. He doesn’t do anything to court attention.
He paints what he likes, just as a poet writes what he feels. He doesn’t
need to justify himself. The so called protests are born of ignorance.”
Questioning our society’s embarrassment over nudity, Pundole asks; ”
Aren’t we all born nude? There is a difference between nudity and
vulgarity, and an artist has the taste to understand that. Even if
something is vulgar, you accept it or reject it. How can you decide for
others what to view?”
Adds Apparao; “Nakedness wasn’t a taboo in the Indian shastras or history
Cases in point are the Khajuraho sculptures and the Chola bronzes of 5 th
-6th centuries, which depicted gods and goddesses in the nude. Nude yogis
are common at religious places. In art, nudity has never been looked down
upon.
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Apparao terms the withdrawal of Bharat Mata as a one off move. Modern
morality, she says “has politicised the issued of nudity”.
From the above, it appears that an art auction had been organised
seeking to sell paintings of celebrated artists/painters including the
legendary painter Maqbool Fida Hussain, impleaded as respondent no. 3
herein.
3. Apart from the aforesaid article, an ancilliary article was published called
the “Controversial Canvasses”, wherein the reporter, informed the
newsreading public about other paintings of Mr.M.F.Hussain, which had
likewise attracted the ire and fury of certain hard-liner groups. More
particularly,· reference was made to two such controversial paintings, one
titled ‘Sita with Hanuman’ and the other titled as ‘Draupadi on Dice’, the
miniature copies of these paintings were also published alongside the article.
4. These articles led to the filing of the criminal complaint registered as
Crl.C.C.No. 16334/2006 by Dr. Ram Pratap Singh, the respondent no. 2,
before the court of the Additional Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi. The complainant had expressed a grievance that he
had approached· ‘the Police Station Connaught Place with a complaint dated
25th of February,2006 requesting the police to do the needful with regard to
these features under Section 153A of the Indian Penal Code to bring the
offenders to book.
No action having been taken by the SHO of the concerned police station, a
direction was sought to the police to register a case, start investigation and
bring the accused persons before the court.
5. The complaint was filed under Section 156(3) of the Code of Criminal
Procedure before the Addl.CMM, New Delhi on the 29lh of March, 2006
being complaint no.16334/2006. It was contended by the complainant
(respondent no. 2 herein) that Mr.Maqbool Fida Hussain had made certain
drawings/paintings which intended to be exhibited for collection of funds
for the development in Kashmir. It was alleged that the said
drawings/paintings hurt the religious sentiments of Hindus the world over and
were on attempt to create hatred, ill-will and enmity between different
religious communities. The exhibition was allegedly organised by Action
India Trust arrayed in the complaint as the accused no.4. The present petitioner
and the respondent no.3 were alleged to have published the aforesaid report
with regard to the exhibition in the India Today on 6 th of February,2006 and in
The Hindustan Times on 10 th of February,2006 respectively. The petitioner
was impleaded as the accused no. 4 in the complaint while the respondent nos.
3, 4 and 5 herein, were impleaded as accused nos. 1 to 3 in the said
complaint.
6. Some of the material allegations made by the complainant – the
respondent no.2 herein (in the complaint) deserve to be considered in extenso
and read thus:-
“6.1 That the drawings/paintings by the accused who is a reputed
painter was subsequently kept for exhibition for collecting funds for
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development in Kashmir and was published by leading newspapers and
journals, to the knowledge of the complainant, on 6.2.2006 in the India
Today and on 10.2.2006 in the Hindustan Times.”
6.2 That the said drawings/paintings have hurt the religious sentiments
of the Hindus the world over. It has played with the sentiments of
particular religious community and is an attempt to create hatred,
enmity and ill-will between different religious community.
6.4 That the said drawings/paintings are highly objectionable and can
be seen to be believed. These are visual representations
calculated to belittle the Hindu gods and goddesses and thereby to
vitiate the communal atmosphere in the country by giving
provocation and affront to the Hindus. The said publication
is also calculated to create hatred between different religious
communities This is also a cleverly hatched conspiracy to affect the
Hindus psyche vis-a-vis their gods and goddesses.
6.9 That the repeated visual representation of the Hindu gods
and goddesses is an obscene and nude way in National Newspapers
and Journals is highly reproachable and brimming with potential to
continue creating enmity, hatred and ill-will between the Hindus
and the Muslims.
8. That after the publication of such communal and fissiparous
materials in media by a painter of repute, the offence under 153-A IPC
is complete and action can straightaway be taken by summoning the
accused persons before this Hon’ble Court. Accused persons are also
liable for action under Sections 153A/292/294/295A/298 IPC.
9. That this Hon’ble Court has jurisdiction to try all the accused
persons as the said offence has been committed through national
newspapers and journals by wide publication. Action India is also
liable for action for giving advertisement captioned ‘Art for Mission
Kashmir’ showing Bharat Mata in the nude, allegedly for
reconstruction work in Kashmir.”
12. The Hon’ble High Court while relying upon the aforesaid judgment in
MF Husain Vs. Rajkumar Pandey (supra) made the following
observations in Para 21 to 24 of the said judgment, which are reproduced
as under:
21. In addition to the above sections, the petitioner has been implicated on
grounds of alleged commission of an offence under Section 153-A and 295-A
of the Indian Penal Code. It is noteworthy, that in the aforenoticed judgment,
this court has held that the painting was an expression of the artist’s vision of a
concept. In this behalf, the court had also made certain observations which
have a bearing on the case set up in the complaint based on these sections. In
para 107 of the judgment, the court observed thus :-
“107. I am unable to accept the plea raised by the learned counsel for
the respondents that the said painting uploaded on a website could be
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accessed by any person sitting across the globe who in consequence
whereto could get affected by viewing the same. There can be no
exasperation caused by viewing such painting on the website for the
reason that a person would firstly access such a website only if he has
some interest in art and that too contemporary art and in case he does
view such a website, he always would have the option to not to view or
close the said web page. It seems that the complainants are not the
types who would go to art galleries or have an interest in contemporary
art, because if they did, they would know that there are many other
artists who embrace nudity as part of their contemporary art. Hence,
the offence illeged u/s 294 IPC can not be made out. Similarly, the
ingredients of section 298 IPC as alleged are not met since there seems
to be no deliberate intention on the part of the petitioner to hurt
feelings of Indians as already stated and as a matter of fact, the subject
matter i.e Bharat Mata could be alleged to wound nationalist feelings
of an individual and not any religious feelings. I am in agreement with
the contention raised by the learned counsel for the petitioner that the
impugned painting cannot form the basis of any deliberate intention to
wound the religious feelings of the complainants since the figure, on
the basis of the identity alleged, represents an anthropomorphic
depiction of a nation as also that to hold a person liable under the
above said section, mere knowledge of the likelihood that the religious
feelings of another person may be wounded would not be sufficient.”
22. A specific finding thus has been returned in respect of the painting itself
and it has been held that the painting cannot form the basis of any deliberate
intention to wound the religious feelings of the complainants since the figure,
on the basis of the identity alleged, represents an anthropomorphic depiction
of a nation. It has been also held that to hold a person liable under the above
said section, mere knowledge of the likelihood that the religious feelings of
another person may be wounded would not be sufficient.
23. Inasmuch as this petition has assailed the order of summoning, the same is
to be tested on the well settled principles of law governing such a challenge.
At the stage of consideration of the matter from the point of summoning, the
allegations in the complaint are to be taken at their face value and assumed to
be correct. This court is only concerned with the evaluation of the same for
the limited purposes of assessment as to whethe; complaint prima facie
discloses the commission of a cognizable offence.
24. The very allegations made by the respondent no.2 in the complaint filed
before the learned trial court have been considered by this court in Maqbool
Fida Hussain Vs. Raj Kumar Pandey (supra). The findings of the court on the
very painting would guide and bind adjudication allegations against printing of
an advertisement or article relating to the painting as complained in the instant
case. In view of the foregoing discussion, in the instant case, it has to be held
that the complaint fails to disclose commission of offences under Section
153A, 292, 294, 295-A, 298 and 500 of the Indian Penal Code.
DLND010008032025 Page 29 of 29
Cr Revision 74/2025
Amita Sachdeva
Vs.
State & Ors.
For this reason, the order dated 30th March, 2006 of the learned Metropolitan
Magistrate in exercise of jurisdiction under Section 156(3) is hereby set aside
and quashed. As a consequence, FIR No.184/2006 registered by the police
station Connaught Place under Section 153A/292 & 294 of the Indian Penal
Code and all proceedings arising therefrom against the present petitioner shall
also stand quashed. (emphasis supplied)
13.This court, while upholding the impugned order passed by the Ld. Trial
Court, draws strength from the observations made in the aforesaid
judgment of the Hon’ble High Court on almost similar accusations.
Final Order:
14.In conclusion, the Impugned Order reflects a reasoned application of
mind, aligning with statutory provisions and judicial precedents. No
police investigation is required at this stage, as evidence is accessible, and
Section 225 BNSS provides an adequate mechanism for any future
inquiry.
15.The Criminal Revision Petition is dismissed. The proceedings before the
learned JMFC shall continue as per law.
16.No order as to costs.
17.A copy of this order be sent to the learned JMFC for information and
necessary action, along with TCR, if any. File be consigned to record
room. SAURABH Digitally
signed by
PARTAP SAURABH
Announced in the open Court SINGH PARTAP
SINGH
LALER
on 19th of August, 2025 LALER
(Saurabh Partap Singh Laler)
ASJ-05 New Delhi
Patiala House Courts
Delhi/19.08.2025