Full Judgment Text
2026:BHC-NAG:2538-DB
35.apl.161.2025.judgment.odt
( 1 )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.161 OF 2025
1. Mr. Amit s/o Arunrao Tete,
Aged about 35 Years,
Occupation : Business,
R/o Malipura, Khapa,
Saoner, District Nagpur.
2. Sandeep s/o Arunrao Tete,
Aged about : 40 Years,
Occupation : Service,
Both R/o. 201, Shivani Heights,
Gokul Housing Society,
Borgaon road, Nagpur.
3. Ashay s/o Ajay Bhujade,
Aged about 39 Years,
Occupation : Private,
R/o Flat No.703,
Capital Heights, Medical Square,
Nagpur.
4. Tejas s/o Dvendara Maske,
Aged about : 22 Years,
Occupation Private,
R/o. C/o. Amit Arunrao Tete,
Near Post Office, Malipura,
Post Khapa. .... APPLICANTS
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer,
Khapa, District Nagpur.
2. Anil s/o Janba Patil,
Aged Major Years,
Occupation : Service,
R/o. Mouza Malipura,
Khapa, District Nagpur. ....NON-APPLICANTS
35.apl.161.2025.judgment.odt
( 2 )
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr. A. A. Mardikar, Advocate for applicants.
Mr. Nikhil Joshi, APP for non-applicant No.1/State.
Mr. K. S. Dhoble, Advocate for non-applicant No.2
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 04/02/2026
ORAL JUDGMENT :
1. Heard.
2. Admit .
3. Heard finally with the consent of the learned Counsel
for the applicants, learned APP for the State and learned counsel
for the non-applicant No.2.
4. Present application is preferred by the applicants for
quashing of the FIR in connection with Crime No.587/2024
registered with Police Station Khapa, District Nagpur for the
offence punishable under Sections 296, 3(5), 351(3) and 352 of
the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as
‘BNS’).
5. The crime is registered on the basis of a report lodged
by the non-applicant No.2 Anil Patil, who is teacher by profession
and resides opposite of the residence of the applicant No.1. It is
alleged that on 10.11.2024 at about 11.15 p.m. in the night, the
applicant No.1 along with his cousin Tejes, who is applicant No.4
were fired the crackers in the late night to which the complainant
35.apl.161.2025.judgment.odt
( 3 )
objected because of that he was abused and threatened by the
present applicants. On the basis of the said report, police have
registered the crime against them.
6. Heard learned counsel for the applicants, who
submitted that on perusal of the entire FIR and the entire
investigation papers, offence under Section 294 of IPC (296 of
BNS) is not made out, mere abuses are not sufficient to attract
Section 294 of IPC (296 of BNS). As far as the offence
punishable under Sections 351 and 352 of BNS are concerned,
which are not attracted and the ingredients of the offences are
not made out. In view of that, the application deserves to be
allowed.
7. Per contra, learned APP submitted that abusive words
are specifically mentioned by the non-applicant No.2, which is
sufficient to attract the offence punishable under Sections 296,
351 and 352 of the BNS. In view of that, the application
deserves to be rejected. Learned counsel for the complainant
endorsed the same contention.
8. On hearing both sides and on perusal of the recitals of
the FIR, wherein the allegations are levelled of abuses by the
applicants to the complainant. On perusal of the recitals of the
FIR, it reveals that the words used covers under abuses, but as
far as the obscenity is concerned, after applying the test which is
35.apl.161.2025.judgment.odt
( 4 )
narrated in the judgment of Hon’ble Apex Court in the case of N.
S. Madhanagopal and another vs K. Lalitha reported (2022)
17 SCC 818 wherein it is laid down that test of obscenity under
Section 294(b) of the IPC observed that “the test of obscenity is
this, “whether the tendency of the matter charged as obscenity
is to deprave and corrupt those whose minds are open to such
immoral influences”. “This test has been uniformly followed in
India. The Supreme Court has accepted the correctness of the
test in Ranjit D. Udeshi v. State of Maharashtra,
[MANU/SC/0080/1964] wherein the test of “obscenity” is the
‘substantial tendency to corrupt by arousing lustful desires’. It
impure thoughts, I do not think that the words uttered in this
case have such a tendency. It may be that the words are
defamatory of the complainant, but I do not think the words are
“obscene” and the utterance would constitute an offence
punishable under under Section 294(b) IPC”.
9. This aspect is further considered by the Hon’ble Apex
Court in the case of Om Prakash Ambadkar Vs. The State of
Maharashtra and Ors., [MANU/SC/0134/2025] and
observed that in so far as Section 294 of the IPC is concerned,
this Court in N. S. Madhangopal and Another v. K. Lalitha
referred supra has explained the true purport and scope of
Section 294. It is further observed that it has to be noted that in
the instance case, the absence of words which will involve some
35.apl.161.2025.judgment.odt
( 5 )
lascivious elements arousing sexual thoughts or feelings or words
cannot attract the offence under Section 294(b). None of the
records disclose the alleged words used by the accused. It may
not be the requirement of law to reproduce in all cases the entire
obscene words if it is lengthy, but in the instant case, there is
hardly anything on record. Mere abusive, humiliating or
defamative words by itself cannot attract an offence under
Section 294(b) IPC. It is further observed that “mere utterance
of obscene words are not sufficient but there must be a further
proof to establish that it was to the annoyance of others, which is
lacking in the case. No one has spoken about the obscene words,
they felt annoyed and in the absence of legal evidence to show
that the words uttered by the Appellant-accused annoyed others,
it cannot be said that the ingredients of the offence under
Section 294(b) Indian Penal Code are made out.”
10. Here in the present case also except the abusive
language, there is no allegation that due to the said words any
annoyance is caused to the others. At the most, it could be said
that the words used are defamatory or humiliating words and
that is not sufficient to attract the offence under Section 296 of
the IPC.
11. As per as Section 351(3) and 352 are concerned, it is
alleged that the applicants have threatened the informant and
35.apl.161.2025.judgment.odt
( 6 )
thereby committed an offence of criminal intimidation. Section
503 of the IPC defines the definition of criminal intimidation,
which reads as “Whoever threatens another with any injury to
his person, reputation or property, or to the person or reputation
of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any act
which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of
avoiding the execution of such threat, commits criminal
intimidation.” Section 351 also talks about the punishment
which is provided for the said act.
12. Intentionally insulting a person and thereby provoking
such person is the ingredients of the said offence which appears
to be absent in the present case. Thus, by no stretch of
imagination, it can be said that the nature of the allegation
levelled in the FIR prima facie constitutes the offence punishable
either under Sections 296, 351(3) of 352 of the BNS.
13. By applying the principles laid down by the Hon’ble
Apex Court in the case of State of Haryana and others Vs
Bhajan Lal and others reported in 1992 Supp. (1) SCC 335,
which are reproduced as under:
“ (1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
35.apl.161.2025.judgment.odt
( 7 )
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
35.apl.161.2025.judgment.odt
( 8 )
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
14. On perusal of the recitals of the FIR, this is a fit case
wherein the power under Section 482 of the Code of Criminal
Procedure (under Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023) can be exercised. In view of that, the application
deserves to be allowed. Accordingly, I proceed to pass following
order:
ORDER
(i) The application is allowed .
(ii) The FIR in connection with Crime No.587/2024
registered with Police Station Khapa, District Nagpur for
the offence punishable under Sections 296, 3(5), 351(3)
and 352 of the Bharatiya Nyaya Sanhita, 2023 and
consequent proceeding arising out of the same bearing
SCC No.543/2025 pending before the Judicial Magistrate
First Class, Saoner, are hereby quashed and set aside to
the extent of the present applicants.
The application is disposed of.
(URMILA JOSHI-PHALKE, J)
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 13/02/2026 18:46:55
Sarkate.
35.apl.161.2025.judgment.odt
( 1 )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.161 OF 2025
1. Mr. Amit s/o Arunrao Tete,
Aged about 35 Years,
Occupation : Business,
R/o Malipura, Khapa,
Saoner, District Nagpur.
2. Sandeep s/o Arunrao Tete,
Aged about : 40 Years,
Occupation : Service,
Both R/o. 201, Shivani Heights,
Gokul Housing Society,
Borgaon road, Nagpur.
3. Ashay s/o Ajay Bhujade,
Aged about 39 Years,
Occupation : Private,
R/o Flat No.703,
Capital Heights, Medical Square,
Nagpur.
4. Tejas s/o Dvendara Maske,
Aged about : 22 Years,
Occupation Private,
R/o. C/o. Amit Arunrao Tete,
Near Post Office, Malipura,
Post Khapa. .... APPLICANTS
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer,
Khapa, District Nagpur.
2. Anil s/o Janba Patil,
Aged Major Years,
Occupation : Service,
R/o. Mouza Malipura,
Khapa, District Nagpur. ....NON-APPLICANTS
35.apl.161.2025.judgment.odt
( 2 )
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr. A. A. Mardikar, Advocate for applicants.
Mr. Nikhil Joshi, APP for non-applicant No.1/State.
Mr. K. S. Dhoble, Advocate for non-applicant No.2
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 04/02/2026
ORAL JUDGMENT :
1. Heard.
2. Admit .
3. Heard finally with the consent of the learned Counsel
for the applicants, learned APP for the State and learned counsel
for the non-applicant No.2.
4. Present application is preferred by the applicants for
quashing of the FIR in connection with Crime No.587/2024
registered with Police Station Khapa, District Nagpur for the
offence punishable under Sections 296, 3(5), 351(3) and 352 of
the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as
‘BNS’).
5. The crime is registered on the basis of a report lodged
by the non-applicant No.2 Anil Patil, who is teacher by profession
and resides opposite of the residence of the applicant No.1. It is
alleged that on 10.11.2024 at about 11.15 p.m. in the night, the
applicant No.1 along with his cousin Tejes, who is applicant No.4
were fired the crackers in the late night to which the complainant
35.apl.161.2025.judgment.odt
( 3 )
objected because of that he was abused and threatened by the
present applicants. On the basis of the said report, police have
registered the crime against them.
6. Heard learned counsel for the applicants, who
submitted that on perusal of the entire FIR and the entire
investigation papers, offence under Section 294 of IPC (296 of
BNS) is not made out, mere abuses are not sufficient to attract
Section 294 of IPC (296 of BNS). As far as the offence
punishable under Sections 351 and 352 of BNS are concerned,
which are not attracted and the ingredients of the offences are
not made out. In view of that, the application deserves to be
allowed.
7. Per contra, learned APP submitted that abusive words
are specifically mentioned by the non-applicant No.2, which is
sufficient to attract the offence punishable under Sections 296,
351 and 352 of the BNS. In view of that, the application
deserves to be rejected. Learned counsel for the complainant
endorsed the same contention.
8. On hearing both sides and on perusal of the recitals of
the FIR, wherein the allegations are levelled of abuses by the
applicants to the complainant. On perusal of the recitals of the
FIR, it reveals that the words used covers under abuses, but as
far as the obscenity is concerned, after applying the test which is
35.apl.161.2025.judgment.odt
( 4 )
narrated in the judgment of Hon’ble Apex Court in the case of N.
S. Madhanagopal and another vs K. Lalitha reported (2022)
17 SCC 818 wherein it is laid down that test of obscenity under
Section 294(b) of the IPC observed that “the test of obscenity is
this, “whether the tendency of the matter charged as obscenity
is to deprave and corrupt those whose minds are open to such
immoral influences”. “This test has been uniformly followed in
India. The Supreme Court has accepted the correctness of the
test in Ranjit D. Udeshi v. State of Maharashtra,
[MANU/SC/0080/1964] wherein the test of “obscenity” is the
‘substantial tendency to corrupt by arousing lustful desires’. It
impure thoughts, I do not think that the words uttered in this
case have such a tendency. It may be that the words are
defamatory of the complainant, but I do not think the words are
“obscene” and the utterance would constitute an offence
punishable under under Section 294(b) IPC”.
9. This aspect is further considered by the Hon’ble Apex
Court in the case of Om Prakash Ambadkar Vs. The State of
Maharashtra and Ors., [MANU/SC/0134/2025] and
observed that in so far as Section 294 of the IPC is concerned,
this Court in N. S. Madhangopal and Another v. K. Lalitha
referred supra has explained the true purport and scope of
Section 294. It is further observed that it has to be noted that in
the instance case, the absence of words which will involve some
35.apl.161.2025.judgment.odt
( 5 )
lascivious elements arousing sexual thoughts or feelings or words
cannot attract the offence under Section 294(b). None of the
records disclose the alleged words used by the accused. It may
not be the requirement of law to reproduce in all cases the entire
obscene words if it is lengthy, but in the instant case, there is
hardly anything on record. Mere abusive, humiliating or
defamative words by itself cannot attract an offence under
Section 294(b) IPC. It is further observed that “mere utterance
of obscene words are not sufficient but there must be a further
proof to establish that it was to the annoyance of others, which is
lacking in the case. No one has spoken about the obscene words,
they felt annoyed and in the absence of legal evidence to show
that the words uttered by the Appellant-accused annoyed others,
it cannot be said that the ingredients of the offence under
Section 294(b) Indian Penal Code are made out.”
10. Here in the present case also except the abusive
language, there is no allegation that due to the said words any
annoyance is caused to the others. At the most, it could be said
that the words used are defamatory or humiliating words and
that is not sufficient to attract the offence under Section 296 of
the IPC.
11. As per as Section 351(3) and 352 are concerned, it is
alleged that the applicants have threatened the informant and
35.apl.161.2025.judgment.odt
( 6 )
thereby committed an offence of criminal intimidation. Section
503 of the IPC defines the definition of criminal intimidation,
which reads as “Whoever threatens another with any injury to
his person, reputation or property, or to the person or reputation
of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any act
which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of
avoiding the execution of such threat, commits criminal
intimidation.” Section 351 also talks about the punishment
which is provided for the said act.
12. Intentionally insulting a person and thereby provoking
such person is the ingredients of the said offence which appears
to be absent in the present case. Thus, by no stretch of
imagination, it can be said that the nature of the allegation
levelled in the FIR prima facie constitutes the offence punishable
either under Sections 296, 351(3) of 352 of the BNS.
13. By applying the principles laid down by the Hon’ble
Apex Court in the case of State of Haryana and others Vs
Bhajan Lal and others reported in 1992 Supp. (1) SCC 335,
which are reproduced as under:
“ (1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
35.apl.161.2025.judgment.odt
( 7 )
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
35.apl.161.2025.judgment.odt
( 8 )
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
14. On perusal of the recitals of the FIR, this is a fit case
wherein the power under Section 482 of the Code of Criminal
Procedure (under Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023) can be exercised. In view of that, the application
deserves to be allowed. Accordingly, I proceed to pass following
order:
ORDER
(i) The application is allowed .
(ii) The FIR in connection with Crime No.587/2024
registered with Police Station Khapa, District Nagpur for
the offence punishable under Sections 296, 3(5), 351(3)
and 352 of the Bharatiya Nyaya Sanhita, 2023 and
consequent proceeding arising out of the same bearing
SCC No.543/2025 pending before the Judicial Magistrate
First Class, Saoner, are hereby quashed and set aside to
the extent of the present applicants.
The application is disposed of.
(URMILA JOSHI-PHALKE, J)
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 13/02/2026 18:46:55
Sarkate.