Offence under Section 295 IPC can be committed by persons belonging to the same community, but sanction under Section 196 of the CrPC is required for prosecution under Section 295A IPC.

Indrajit Chatterjee, J.

1. This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure (hereinafter called as the said Code) wherein the Order No. 1 dated 18th July, 2012 as passed by the learned Chief Judicial Magistrate, Howrah and also subsequent orders passed in that Complaint Case No. 612-C of 2012 (T.R. No. 80 of 2012) by the Judicial Magistrate 1st Court, Howrah, have been assailed before this Court.

2. Cognizance was taken by the Chief Judicial Magistrate, Howrah, as per Order No. 1 dated 18th July, 2012 and thereafter, the case was transferred to the Judicial Magistrate, 1st Court, Howrah and on examination of the witnesses under Section 200 of the Cr.P.C. The said learned court issued process against all the accused persons for the offence punishable under Sections 295/295A/120B and 426 of the Indian Penal Code.

3. It is the submission of Mr. Ganguly, learned senior Advocate, appearing on behalf of the petitioners that as the accused persons belong to Hindu community and the place of alleged destruction and the idol being one Hindu deity, no offence under Section 295 or 295A can be committed by the accused persons whoever Hindus. He further submitted that Section 295A requires prior sanction of the Central Government or the State Government, as the case may be, in terms of Section 196 of the Code and he submitted that such permission was not at all taken by the complainant before the Magistrate took cognizance in respect of the offence as stated above.

4. Thus, it is his contention that this prosecution is ipso facto bad as the learned Trial Court issued process without taking into consideration the fact that the sanction order was required.

5. In counter to all these, it is submitted by Mr. Sanyal, learned Advocate, appearing on behalf of the opposite party No. 2/complainant by taking me to Section 295 of the Indian Penal Code (hereinafter referred to as the I.P.C.) that if the ingredients of that offence are looked into, then the court may come to the conclusion that the act of the accused persons can very well attract that provision of Section 295 of the I.P.C.

6. He, however, admitted that for Section 295A of the I.P.C. sanction is must as contemplated under Section 196 of the Code and he further contended that let the matter be left open before the learned Trial Court that if any sanction is received, then Section 295A may be clamped against the accused persons.

7. Before I proceed further, I like to say what is there in the complaint. This is the battle between the two groups of Hindu community and the complainant has claimed himself to be the managing Shebait of Iswar Laxmi Janardan Jew Thakur. The accused persons are resident of the same village.

8. The main grievance of the complainant as made out in the complaint was that the accused persons entered into a criminal conspiracy and with dishonest intention and mala fide motive, took away the Narayan Shila which was being worshipped since last 100 years and immersed it in a local pond contiguous to that temple. The name of the pond is Sardar Pukur.

9. Now, the question is whether Sections 295 and 295A can be attracted. It is better to quote here both the Sections 295 and 295A.

10. The main ingredients of Section 295 are as follows:

i. Destruction, damage or defilement of any place of worship or any object held sacred by any class of persons;

ii. Such destruction etc. must have been done with the intention of insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction etc. as an insult to their religion.

The ingredients of Section 295A are as follows:

i. That an insult or attempt to insult the religion or the religious beliefs was done to outrage religious feelings of any class of citizens of India;

ii. That such an act was done by words either spoken or written or by signs or by visible representation or otherwise;

iii. That such an act will deliberate and