Sri Basanagouda R Patil (Yatnal) vs State Of Karnataka on 12 December, 2024

[Cites 23, Cited by 0]

Karnataka High Court

Sri Basanagouda R Patil (Yatnal) vs State Of Karnataka on 12 December, 2024

Bench: M.Nagaprasanna

Reserved on : 28.11.2024
Pronounced on : 12.12.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12TH DAY OF DECEMBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No. 10076 OF 2024

BETWEEN:

SRI BASANAGOUDA R.PATIL (YATNAL)
S/O RAMANAGOUDA B.PATIL
AGED ABOUT 60 YEARS
OCC: MLA, VIJAYAPURA CONSTITUENCY
RESIDING AT OLD IB, STATION ROAD
VIJAYAPURA - 586 101
KARNATAKA

ALSO AT:
RESIDING AT SINDAGI ROAD
MAHAL AINAPUR, AINAPURA
BIJAPUR, KARNATAKA - 586 104.
... PETITIONER
(BY SRI VENKATESH P. DALWAI, ADVOCATE)

AND:

1. STATE OF KARNATAKA
BY HIGH GROUND P.S.,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2

2. SRI MANOHAR S.,
S/O SUSAINATHAN
AGED ABOUT 52 YEARS
ADDRESS NO.764,
12TH CROSS, INDIRA NAGARA,
WEST OF CORD ROAD
RAJAJINAGARA,
BENGALURU CITY - 560 010.
... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1;
SRI SANKET M.YENAGI, ADVOCATE FOR R2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 PRAYING TO
QUASH THE FIR IN CR.NO.206/2024 REGISTERED BY THE HIGH
GROUNDS P.S. PENDING ON THE FILE OF 42ND A.C.M.M
BENGALURU FOR THE OFFENCE P/U/S 192, 196, 353(2) OF BNS
ACT PRODUCED AT DOCUMENT NO.1.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.11.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner, a legislator, is knocking at the doors of this

Court, in the subject petition, calling in question registration of a

crime in Crime No.206 of 2024 for offences punishable under

Sections 192, 196, 353(2) of the BNS, 2023.
3

2. Heard Sri Venkatesh P. Dalwai, learned counsel appearing

for the petitioner, Sri B.N. Jagadeesha, learned Additional State

Public Prosecutor for respondent No.1 and Sri Sanket M. Yenagi,

learned counsel appearing for respondent No.2.

3. Facts, adumbrated, are as follows:-

The 2nd respondent claiming to be the Secretary of the

Karnataka Pradesh Congress Committee ('KPCC') files a complaint

on 18-09-2024 before the jurisdictional Police alleging that the

petitioner has uttered certain imputations against Sri Rahul Gandhi,

Leader of the Opposition in Parliament, and had questioned the

ancestral religion of Sri Rahul Gandhi. The complaint made by the

KPCC Secretary before the jurisdictional Police becomes a crime in

Crime No.206 of 2024. Registration of crime is what has driven the

petitioner to this Court in the subject petition.

4. The learned counsel appearing for the petitioner

Sri Venkatesh P. Dalwai would vehemently contend that the offence

so alleged against the petitioner would not even get attracted in the
4

case at hand, as the offences are that the Leader of the Opposition

in the Indian Parliament, would go beyond the shores of the nation,

and criticize India. Therefore, the petitioner had made certain

comments. Where from, it would cause disharmony between the

religions is ununderstandable. He would emphatically submit that a

parliamentarian cannot go outside and speak whatever he wants

about this country. He would take this Court through the

documents appended to the petition to demonstrate what has been

spoken by Sri Rahul Gandhi and dangerous support it generated

immediately. He would contend that none of the ingredients of the

offences are even found. At best, it can be a case of defamation

and not the ones that are initiated now.

5. Per contra, the learned counsel Sri Sanket M. Yenagi

appearing for the complainant would contend that this is a classic

case where all the offences are met. He would project outraging the

modesty of a woman; the woman in the case at hand is the mother

of Sri Rahul Gandhi. It is his contention that the petitioner cannot

speak derogatory about the mother of Sri Rahul Gandhi and he

would contend that FIR is not an encyclopedia and if investigation
5

happens, all other offences can spring other than the ones that are

now laid.

6. The learned counsel for the petitioner would join issue to

contend that what the petitioner has spoken is a matter of fact.

Mother of Sri Rahul Gandhi is of Italian origin and there can be no

dispute about it. What the petitioner has uttered is only that. He

would seek quashment of proceedings.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

8. The afore-narrated facts are a matter of record. What

triggers utterances at the hands of the petitioner is what the Leader

of the Opposition does on the soil of United States. The titles on the

social media of what was spoken by Sri Rahul Gandhi are as

follows:

"Even if in good faith, Rahul Gandhi shows India in bad
light abroad.

... ... ...
6

INDIA NOT A FAIR PLACE, SAYS RAHUL GANDHI

The other Rahul Gandhi statement that has been perceived
as a criticism of India on foreign soil was the one on
reservations.

While interacting with students and faculty members of
Georgetown University in Washington DC, he backed a pan-
India caste census and for better participation of the weaker
sections in India's institutions.

Elaborating on a question whether there were better
ways to strengthen institutions at the grassroots level
than caste-based reservations, Rahul Gandhi said, "We
will think of scrapping reservations when India is a
fair place and India is not a fair place."

No place, even the US, where Rahul was making the
statement, is a "fair place". Among other things, there exists
a big racial and economic divide in the US.

Any country can be criticized for being unfair on various
parameters. The only fair point to ask is if a country is trying
to make itself a fairer place? India is, through positive
discrimination.

Not just his remarks, the BJP criticized Rahul Gandhi for
meeting American Lawmaker llhan Omar, who has an
ideological basis against India and has worked against the
country's interests.

"After spewing venom against Sikhs and running down India
on foreign soil, now Rahul Gandhi meets and engages with
anti-India llhan Omar, who introduced anti-India resolutions
in US Congress and has been against abrogation of Art.370,"
BJP leader Shehzad Poonawalla said on Wednesday.

BJP spokesperson and Rajya Sabha MP Sudhanshu Trivedi
said this was "concerning" as Rahul Gandhi was the LoP.

"Rahul Gandhi is known for spewing anti-India venom, but
what he has done this time is concerning. He became the
7

first Leader of the Opposition to meet US MP llhan, who is
infamous for taking an anti-India stand", said Trivedi.

... ... ..."

The afore-quoted is only a few quotations of what is found in the

annexures. They are a few pages of it which need not become a

part of the judicial record. Based upon this, the petitioner is said to

have, in an interview, questioned the origin or orientation of Sri

Rahul Gandhi. Then emerges the complaint. The complaint reads

as follows:

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Based upon the said complaint, a crime comes to be registered in

Crime No.206 of 2024 for offences punishable under Sections 192,

196 and 353(2) of BNS, 2023. I deem it appropriate to consider

whether the contents of the complaint would become ingredients of

the aforesaid offences. Section 192 of BNS reads as follows:

"192. Wantonly giving provocation with intent to
cause riot-if rioting be committed; if not committed.--
Whoever malignantly, or wantonly by doing anything which
is illegal, gives provocation to any person intending or
knowing it to be likely that such provocation will cause the
offence of rioting to be committed, shall, if the offence of
rioting be committed in consequence of such provocation, be
punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both;
and if the offence of rioting be not committed, with
imprisonment of either description for a term which may
extend to six months, or with fine, or with both."
9

Section 192 of BNS is Section 153 of the earlier regime of IPC. It

provides, whoever malignantly or wantonly by doing anything which

is illegal causes provocation or likely to cause provocation resulting

in the offence of rioting on provocation, would become liable for

punishment. The other provision is under Section 196 of the BNS,

which reads as follows:

"196. Promoting enmity between different
groups on grounds of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial to
maintenance of harmony.--(1) Whoever--

(a) by words, either spoken or written, or by signs or by
visible representations or through electronic
communication or otherwise, promotes or attempts to
promote, on grounds of religion, race, place of birth,
residence, language, caste or community or any other
ground whatsoever, disharmony or feelings of enmity,
hatred or ill-will between different religious, racial,
language or regional groups or castes or communities;
or

(b) commits any act which is prejudicial to the
maintenance of harmony between different religious,
racial, language or regional groups or castes or
communities, and which disturbs or is likely to disturb
the public tranquillity; or

violence or knowing it to be likely that the participants
in such activity will use or be trained to use criminal
force or violence, against any religious, racial,
language or regional group or caste or community and
such activity for any reason whatsoever causes or is
likely to cause fear or alarm or a feeling of insecurity
amongst members of such religious, racial, language
or regional group or caste or community,
shall be punished with imprisonment which may extend to
three years, or with fine, or with both.

(2) Whoever commits an offence specified in sub-
section (1) in any place of worship or in any assembly
engaged in the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which may
extend to five years and shall also be liable to fine."

Section 196 is Section 153A of the earlier regime of IPC. It deals

with promoting enmity between two groups on grounds of religion,

race, place of birth so on and so forth and doing acts prejudicial to

maintenance of harmony. The third offence is under Section 353(2)

of BNS. It reads as follows:

"353. Statements conducing to public mischief.--
(1) Whoever makes, publishes or circulates any statement,
false information, rumour, or report, including through
electronic means--

(a) with intent to cause, or which is likely to cause, any
officer, soldier, sailor or airman in the Army, Navy or
Air Force of India to mutiny or otherwise disregard or
fail in his duty as such; or

(b) with intent to cause, or which is likely to cause, fear or
alarm to the public, or to any section of the public
whereby any person may be induced to commit an
11

offence against the State or against the public
tranquillity; or

(c) with intent to incite, or which is likely to incite, any
class or community of persons to commit any offence
against any other class or community,

shall be punished with imprisonment which may extend to
three years, or with fine, or with both.

(2) Whoever makes, publishes or circulates any
statement or report containing false information,
rumour or alarming news, including through electronic
means, with intent to create or promote, or which is
likely to create or promote, on grounds of religion,
race, place of birth, residence, language, caste or
community or any other ground whatsoever, feelings
of enmity, hatred or ill will between different religious,
racial, language or regional groups or castes or
communities, shall be punished with imprisonment
which may extend to three years, or with fine, or with
both.

(3) Whoever commits an offence specified in sub-
section (2) in any place of worship or in any assembly
engaged in the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which may
extend to five years and shall also be liable to fine.

Exception.--It does not amount to an offence, within
the meaning of this section, when the person making,
publishing or circulating any such statement, false
information, rumour or report, has reasonable grounds for
believing that such statement, false information, rumour or
report is true and makes, publishes or circulates it in good
faith and without any such intent as aforesaid."

(Emphasis supplied)
12

Section 353(2) is Section 505 of the earlier regime of IPC. It

punishes a person who publishes or circulates any statement or

report containing a false information, rumour or alarming news on

grounds of religion, race or place of birth.

9. Now let me analyse the sections qua the allegations.

Section 192 of the BNS, as observed hereinabove, is wantonly

provoking with an intent to cause riot. Where from the ingredients

would result in the aforesaid offence is a mystery. What is spoken

is not capable of any rioting to be committed as they are personal

to a person. There is no provocation of any rioting even in the

remotest sense in what is alleged. Therefore, the offence is loosely

laid. The next offence is under Section 196 of the BNS, which deals

with promoting enmity between different groups on grounds of

religion. I fail to understand, which two groups which are involved

in the case at hand, that too on the ground of religion, race and

place of birth. There are no two groups involved in the case at

hand. Again, these are personal to a person and there can be no

question of the words leading to disharmony. The other offence is

Section 353(2) of the BNS. Section 353(2) is rumour or alarming
13

news which is false being published or circulated resulting in feeling

of enmity, ill-will and hatred between different religions. Here

again, it should be between different religions. There is no question

of different religions being involved in the statement made by the

petitioner. As contended by the learned counsel appearing for the

petitioner, he has commented on the orientation and the roots of

Sri Rahul Gandhi or his mother, which is a matter of record and is

in public domain.

10. Interpretation of afore-quoted provisions need not detain

this Court for long or delve deep in the matter. The Apex Court in

the case of JAVED AHMAD HAJAM v. STATE OF

MAHARASHTRA1, interpreting Section 153A of the IPC which is

196 of BNS, has held as follows:

".... .... ....

Consideration of submissions

6. The only offence alleged against the appellant is the
one punishable under Section 153-A IPC. Section 153-AIPC, as
it exists with effect from 4-9-1969, reads thus:

"153-A. Promoting enmity between different
groups on grounds of religion, race, place of birth,
residence, language, etc. and doing acts

1
(2024) 4 SCC 156
14

prejudicial to maintenance of harmony.--(1)
Whoever--

(a) by words, either spoken or written, or by
signs or by visible representations or otherwise,
promotes or attempts to promote, on grounds of
religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill will
between different religious, racial, language or regional
groups or castes or communities, or

(c) organises any exercise, movement, drill or
other similar activity intending that the participants in
such activity shall use or be trained to use criminal force
or violence or knowing it to be likely that the
participants in such activity will use or be trained to use
criminal force or violence, or participates in such activity
intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants in
such activity will use or be trained to use criminal force
or violence, against any religious, racial, language or
regional group or caste or community and such activity,
for any reason whatsoever causes or is likely to cause
fear or alarm or a feeling of insecurity amongst
members of such religious, racial, language or regional
group or caste or community,

shall be punished with imprisonment which may extend to three
years, or with fine, or with both.

In this case, clause (c) of sub-section (1) of Section 153-AIPC
is admittedly not attracted.
15

7. In Manzar Sayeed Khan [Manzar Sayeed
Khan v. State of Maharashtra, (2007) 5 SCC 1: (2007) 2 SCC
(Cri) 417], while interpreting Section 153-A, in para 16, this
Court held thus: (SCC p. 9)

"16. Section 153-A IPC, as extracted
hereinabove, covers a case where a person by words,
either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to
promote, disharmony or feelings of enmity, hatred or ill
will between different religious, racial, language or
regional groups or castes or communities or acts
prejudicial to the maintenance of harmony or is likely to
disturb the public tranquillity. The gist of the offence is
the intention to promote feelings of enmity or hatred
between different classes of people. The intention to
cause disorder or incite the people to violence is the sine
qua non of the offence under Section 153-AIPC and the
prosecution has to prove prima facie the existence of
mens rea on the part of the accused. The intention has
to be judged primarily by the language of the book and
the circumstances in which the book was written and
published. The matter complained of within the ambit of
Section 153-A must be read as a whole. One cannot rely
on strongly worded and isolated passages for proving
the charge nor indeed can one take a sentence here and
a sentence there and connect them by a meticulous
process of inferential reasoning."
(emphasis supplied)

8. This Court in Manzar Sayeed Khan [Manzar Sayeed
Khan v. State of Maharashtra, (2007) 5 SCC 1: (2007) 2 SCC
(Cri) 417] referred to the view taken by Vivian Bose, J., as a
Judge of the erstwhile Nagpur High Court in Bhagwati Charan
Shukla v. Provincial Govt. [Bhagwati Charan
Shukla v. Provincial Govt., 1946 SCC OnLine MP 5 : AIR
1947 Nag 1] A Division Bench of the High Court dealt with
the offence of sedition under Section 124-AIPC and Section
4(1) of the Press (Emergency Powers) Act, 1931. The issue
was whether a particular article in the press tends, directly
or indirectly, to bring hatred or contempt to the Government
established in law. This Court has approved this view in its
decision in Ramesh v. Union of India [Ramesh v. Union of
India, (1988) 1 SCC 668 : 1988 SCC (Cri) 266] . In the said
case, this Court dealt with the issue of applicability of Section
16

153-AIPC. In para 13, it was held thus : (Ramesh
case [Ramesh v. Union of India, (1988) 1 SCC 668 : 1988
SCC (Cri) 266] , SCC p. 676)

"13. ... the effect of the words must be judged
from the standards of reasonable, strong-minded, firm
and courageous men, and not those of weak and
vacillating minds, nor of those who scent danger in
every hostile point of view. ... It is the standard of
ordinary reasonable man or as they say in English law
'the man on the top of a Clapham omnibus'. (Bhagwati
Charan Shukla case [Bhagwati Charan
Shukla v. Provincial Govt., 1946 SCC OnLine MP 5 : AIR
1947 Nag 1] , SCC OnLine MP para 67)"

(emphasis supplied)

Therefore, the yardstick laid down by Vivian Bose, J., will
have to be applied while judging the effect of the words,
spoken or written, in the context of Section 153-AIPC.

9. We may also make a useful reference to a decision
of this Court in Patricia Mukhim v. State of
Meghalaya [Patricia Mukhim v. State of Meghalaya, (2021)
15 SCC 35] . Paras 8 to 10 of the said decision read thus :
(SCC pp. 41-43)

"8. 'It is of utmost importance to keep all speech
free in order for the truth to emerge and have a civil
society.'-- Thomas Jefferson. Freedom of speech and
expression guaranteed by Article 19(1)(a) of the
Constitution is a very valuable fundamental right.
However, the right is not absolute. Reasonable
restrictions can be placed on the right of free speech
and expression in the interest of sovereignty and
integrity of India, security of the State, friendly relations
with foreign States, public order, decency or morality or
in relation to contempt of Court, defamation or
incitement to an offence. Speech crime is punishable
under Section 153-AIPC. Promotion of enmity between
different groups on grounds of religion, race, place of
birth, residence, language, etc. and doing acts
prejudicial to maintenance of harmony is punishable
with imprisonment which may extend to three years or
with fine or with both under Section 153-A. As we are
17

called upon to decide whether a prima facie case is
made out against the appellant for committing offences
under Sections 153-A and 505(1)(c), it is relevant to
reproduce the provisions which are as follows:
* * *
9. Only where the written or spoken words have
the tendency of creating public disorder or disturbance
of law and order or affecting public tranquillity, the law
needs to step in to prevent such an activity. The
intention to cause disorder or incite people to violence is
the sine qua non of the offence under Section 153-AIPC
and the prosecution has to prove the existence of mens
rea in order to succeed. [Balwant Singh v. State of
Punjab, (1995) 3 SCC 214 : 1995 SCC (Cri) 432]

10. The gist of the offence under Section 153-
AIPC is the intention to promote feelings of enmity or
hatred between different classes of people. The intention
has to be judged primarily by the language of the piece
of writing and the circumstances in which it was written
and published. The matter complained of within the
ambit of Section 153-A must be read as a whole. One
cannot rely on strongly worded and isolated passages
for proving the charge nor indeed can one take a
sentence here and a sentence there and connect them
by a meticulous process of inferential reasoning [Manzar
Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417] ."

(emphasis in original and supplied)

10. Now, coming back to Section 153-A, clause
(a) of sub-section (1) of Section 153-AIPC is attracted
when by words, either spoken or written or by signs or
by visible representations or otherwise, an attempt is
made to promote disharmony or feelings of enmity,
hatred or ill will between different religious, racial,
language or regional groups or castes or communities.
The promotion of disharmony, enmity, hatred or ill will
must be on the grounds of religion, race, place of
birth, residence, language, caste, community or any
other analogous grounds. Clause (b) of sub-section (1)
of Section 153-AIPC will apply only when an act is
committed which is prejudicial to the maintenance of
harmony between different religious, racial, language
18

or regional groups or castes or communities and which
disturbs or is likely to disturb the public tranquillity.

11. Now, coming to the words used by the
appellant on his WhatsApp status, we may note here
that the first statement is that August 5 is a Black Day
for Jammu and Kashmir. 5-8-2019 is the day on which
Article 370 of the Constitution of India was abrogated,
and two separate Union Territories of Jammu and
Kashmir were formed. Further, the appellant has
posted that "Article 370 was abrogated, we are not
happy". On a plain reading, the appellant intended to
criticise the action of the abrogation of Article 370 of
the Constitution of India. He has expressed
unhappiness over the said act of abrogation. The
aforesaid words do not refer to any religion, race,
place of birth, residence, language, caste or
community. It is a simple protest by the appellant
against the decision to abrogate Article 370 of the
Constitution of India and the further steps taken based
on that decision. The Constitution of India, under Article
19(1)(a), guarantees freedom of speech and expression.
Under the said guarantee, every citizen has the right to offer
criticism of the action of abrogation of Article 370 or, for that
matter, every decision of the State. He has the right to say
he is unhappy with any decision of the State.

12. In Manzar Sayeed Khan [Manzar Sayeed
Khan v. State of Maharashtra, (2007) 5 SCC 1 : (2007)
2 SCC (Cri) 417] , this Court has read "intention" as an
essential ingredient of the said offence. The alleged
objectionable words or expressions used by the
appellant, on its plain reading, cannot promote
disharmony or feelings of enmity, hatred or ill will
between different religious, racial, language or
regional groups or castes or communities. The
WhatsApp status of the appellant has a photograph of
two barbed wires, below which it is mentioned that
"AUGUST 5 -- BLACK DAY -- JAMMU&KASHMIR". This is an
expression of his individual view and his reaction to
the abrogation of Article 370 of the Constitution of
India. It does not reflect any intention to do
something which is prohibited under Section 153-A. At
19

best, it is a protest, which is a part of his freedom of
speech and expression guaranteed by Article 19(1)(a).

13. Every citizen of India has a right to be critical
of the action of abrogation of Article 370 and the
change of status of Jammu and Kashmir. Describing
the day the abrogation happened as a "Black Day" is
an expression of protest and anguish. If every
criticism or protest of the actions of the State is to be
held as an offence under Section 153-A, democracy,
which is an essential feature of the Constitution of
India, will not survive.

14. The right to dissent in a legitimate and lawful
manner is an integral part of the rights guaranteed
under Article 19(1)(a). Every individual must respect
the right of others to dissent. An opportunity to
peacefully protest against the decisions of the
Government is an essential part of democracy. The
right to dissent in a lawful manner must be treated as
a part of the right to lead a dignified and meaningful
life guaranteed by Article 21. But the protest or
dissent must be within four corners of the modes
permissible in a democratic set up. It is subject to
reasonable restrictions imposed in accordance with
clause (2) of Article 19. In the present case, the
appellant has not at all crossed the line.

15. The High Court has held [Javed Ahmed
Hajam v. State of Maharashtra, 2023 SCC OnLine Bom
819] that the possibility of stirring up the emotions of
a group of people cannot be ruled out. The appellant's
college teachers, students, and parents were allegedly
members of the WhatsApp group. As held by Vivian
Bose, J., the effect of the words used by the appellant
on his WhatsApp status will have to be judged from
the standards of reasonable women and men. We
cannot apply the standards of people with weak and
vacillating minds. Our country has been a democratic
republic for more than 75 years. The people of our
country know the importance of democratic values.
Therefore, it is not possible to conclude that the words
will promote disharmony or feelings of enmity, hatred
20

or ill will between different religious groups. The test
to be applied is not the effect of the words on some
individuals with weak minds or who see a danger in
every hostile point of view. The test is of the general
impact of the utterances on reasonable people who are
significant in numbers. Merely because a few
individuals may develop hatred or ill will, it will not be
sufficient to attract clause (a) of sub-section (1) of
Section 153-AIPC.

16. As regards the picture containing "Chand"
and below that the words "14th August-Happy
Independence Day Pakistan", we are of the view that
it will not attract clause (a) of sub-section (1) of
Section 153-AIPC. Every citizen has the right to extend
good wishes to the citizens of the other countries on
their respective Independence Days. If a citizen of
India extends good wishes to the citizens of Pakistan
on 14th August, which is their Independence Day,
there is nothing wrong with it. It is a gesture of
goodwill. In such a case, it cannot be said that such
acts will tend to create disharmony or feelings of
enmity, hatred or ill will between different religious
groups. Motives cannot be attributed to the appellant
only because he belongs to a particular religion.

17. Now, the time has come to enlighten and educate
our police machinery on the concept of freedom of speech
and expression guaranteed by Article 19(1)(a) of the
Constitution and the extent of reasonable restraint on their
free speech and expression. They must be sensitised about
the democratic values enshrined in our Constitution.

18. For the same reasons, clause (b) of sub-section
(1) of Section 153-AIPC will not be attracted as what is
depicted on the WhatsApp status of the appellant cannot be
said to be prejudicial to the maintenance of harmony among
various groups as stated therein. Thus, continuation of the
prosecution of the appellant for the offence punishable under
Section 153-AIPC will be a gross abuse of the process of
law."
(Emphasis supplied)
21

The Apex Court, in a subsequent judgment, in the case of SHIV

PRASAD SEMWAL v. STATE OF UTTARAKHAND2, considering

the very offence has held as follows:

".... .... ....

20. We have given our thoughtful consideration to the
submissions advanced at Bar and have gone through the
impugned order [Shiv Prasad v. State of Uttarakhand, 2020
SCC OnLineUtt 1360] and the material placed on record.

21. It may be noted that the entire case as set out in
the impugned FIR is based on the allegation that the
Facebook news post uploaded by one journalist Mr
GunanandJakhmola was caused to be published on Parvatjan
news portal being operated by the appellant.

22. Thus, essentially, we are required to examine
whether the contents of the news report constitute any
cognizable offence so as to justify the investigation into the
allegations made in the FIR against the appellant.

23. For the sake of ready reference, the contents of
the disputed news article are reproduced hereinbelow:

"GunanandJakhmola
17-3-2020 at 30.05

Trivender Uncle what amazing things you are doing?

Uncle you are laying foundation stone of Art Gallery
which is going to construct by acquiring government
land.

Uncle you are associating the mafias who are violating
the decisions of Modi Government.

Don't trap yourself with mafias, have you forgot the
problems arisen out of marriage of Gupta brother's.

2
(2024) 7 SCC 555
22

Uncle you were not like this, what happened to
you? Was the troubles arisen out of marriage of Gupta
Brothers was not enough that you are now going to
laying foundation stone of the Art Gallery which is going
to construct by acquiring government land. Just think
over it, or take report from LIU and other agencies
about this Art Gallery which is going to construct on the
acquired government land. This is a government land
which is dismantled by mafias and your officers. Uncle
you are innocent, anybody can use you. Advisers and
officers surrounding you they are cunning.

This cunning persons have brought you forward
against the decisions of Modi Government.

Uncle let I inform you for your knowledge that
Modi Government means your honour has given
sanction to planning for Singtali Project near Rishikesh.
This project will reduce the distance between Kumau
and Garhwal and also it will arrange sources of
employment in mountains. World Bank is also giving
money, but the program of Mafias in which you are
going to participate on 20 March, that is an enemy of
mountains. It has no concern with the wellbeing of
mountains. It is against the proposed project of Modi
Government and your officers and advisers are in
collusion with that. Please inquire it and then only you
go.

Note: Kindly see the invitation card given by mafias."

24. As per the counter-affidavit filed on behalf of the
State, after investigation, two substantive offences were
retained by the investigating officer against the appellant,
which are Sections 153-A and 504 read with Sections 34 and
120-B IPC.

25. From a bare reading of the language of Section
153-AIPC, it is clear that in order to constitute such offence,
the prosecution must come out with a case that the words
"spoken" or "written" attributed to the accused, created
enmity or bad blood between different groups on the ground
of religion, race, place of birth, residence, language, etc. or
23

that the acts so alleged were prejudicial to the maintenance
of harmony.

26. Upon careful perusal of the offending news article,
reproduced (supra), it is crystal clear that there is no
reference to any group or groups of people in the said
article. The publication focuses totally on the complainant
imputing that he had encroached upon public land where the
foundation stone laying ceremony was proposed at the hands
of Hon'ble Chief Minister of Uttarakhand.

27. Apparently, the post was aimed at frustrating the
proposed foundation stone laying ceremony on the land, of
which the complainant claims to be the true owner. The post
also imputes that the person who was planning the
foundation stone ceremony was an enemy of mountains and
had no concern with the well-being of the mountains.

28. The learned Standing Counsel for the State tried
to draw much water from these lines alleging that this
portion of the post tends to create a sense of enmity and
disharmony amongst people of hill community and the
people of plains. However, the interpretation sought to be
given to these words is far-fetched and unconvincing. The
lines referred to supra only refer to the complainant,
imputing that his activities are prejudicial to the hills. These
words have no connection whatsoever with a group or
groups of people or communities. Hence, the foundational
facts essential to constitute the offence under Section 153-
AIPC are totally lacking from the allegations as set out in the
FIR.

29. In Manzar Sayeed Khan v. State of
Maharashtra [Manzar Sayeed Khan v. State of Maharashtra,
(2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417] , this Court held
that for applying Section 153-AIPC, the presence of two or
more groups or communities is essential, whereas in the
present case, no such groups or communities were referred
to in the news article.

30. The other substantive offence which has been
applied by the investigating agency is Section 504IPC. The
said offence can be invoked when the insult of a person
24

provokes him to break public peace or to commit any other
offence. There is no such allegation in the FIR that owing to
the alleged offensive post attributable to the appellant, the
complainant was provoked to such an extent that he could
indulge in disturbing the public peace or commit any other
offence. Hence, the FIR lacks the necessary ingredients of
the said offence as well.

31. Since we have found that the foundational facts
essential for constituting the substantive offences under
Sections 153-A and 504IPC are not available from the
admitted allegations of prosecution, the allegations qua the
subsidiary offences under Sections 34 and 120-BIPC would
also be non est.

32. The complainant has also alleged in the FIR that
the accused intended to blackmail him by publishing the
news article in question. However, there is no allegation in
the FIR that the accused tried to extract any wrongful gain or
valuable security from the complainant on the basis of the
mischievous/malicious post.

33. In State of Haryana v. Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426] , this Court examined the principles
governing the scope of exercise of powers by the High
Court in a petition under Article 226 of the
Constitution of India and under Section 482CrPC
seeking quashing of criminal proceedings and held as
follows : (SCC pp. 378-79, para 102)

"102. In the backdrop of the interpretation
of the various relevant provisions of the Code
under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted
and reproduced above, we give the following
categories of cases by way of illustration wherein
such power could be exercised either to prevent
abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined
25

and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised.

(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their 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
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
26

wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."

34. Tested on the touchstone of the above principles,
we are of the firm view that allowing continuance of the
proceedings pursuant to the impugned FIR bearing No. 31 of
2020 registered at PS Muni Ki Reti, District Tehri Garhwal
against the appellant is nothing but gross abuse of process of
law because the allegations as set out in the FIR do not
disclose necessary ingredients of any cognizable offence.
Hence, the impugned FIR and all proceedings sought to be
taken against the appellant are hereby quashed and set
aside."

(Emphasis supplied)

The Apex Court, in both these cases, has upturned the judgments

of respective High Courts. In the case of SHIV PRASAD SEMWAL,

the Apex Court notices Sections 196 and 352 of the BNS as well,

which are the offences that are alleged in the case at hand.

11. Long before the aforesaid judgments, the Apex Court in

the case of PATRICIA MUKHIM v. STATE OF MEGHALAYA3,

interpreting both Sections 153A and 505(2) of the IPC which are

Sections 196 and 353(2) of BNS has held as follows:

".... .... ....

8. "It is of utmost importance to keep all speech
free in order for the truth to emerge and have a civil
3
(2021) 15 SCC 35
27

society."--Thomas Jefferson. Freedom of speech and
expression guaranteed by Article 19(1)(a) of the
Constitution is a very valuable fundamental right.
However, the right is not absolute. Reasonable
restrictions can be placed on the right of free speech
and expression in the interest of sovereignty and
integrity of India, security of the State, friendly
relations with foreign States, public order, decency or
morality or in relation to contempt of Court,
defamation or incitement to an offence. Speech crime
is punishable under Section 153-AIPC. Promotion of
enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc.
and doing acts prejudicial to maintenance of harmony
is punishable with imprisonment which may extend to
three years or with fine or with both under Section
153-A. As we are called upon to decide whether a
prima facie case is made out against the appellant for
committing offences under Sections 153-A and
505(1)(c), it is relevant to reproduce the provisions
which are as follows:

"153-A. Promoting enmity between different
groups on grounds of religion, race, place of birth,
residence, language, etc., and doing acts
prejudicial to maintenance of harmony.--(1)
Whoever--

(a) by words, either spoken or written, or by
signs or by visible representations or otherwise,
promotes or attempts to promote, on grounds of
religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, language or regional
groups or castes or communities, or

such activity shall use or be trained to use criminal force
or violence or knowing it to be likely that the
participants in such activity will use or be trained to use
criminal force or violence, or participates in such activity
intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants in
such activity will use or be trained to use criminal force
or violence, against any religious, racial, language or
regional group or caste or community and such activity,
for any reason whatsoever causes or is likely to cause
fear or alarm or a feeling of insecurity amongst
members of such religious, racial, language or regional
group or caste or community,

shall be punished with imprisonment which may extend to three
years, or with fine, or with both.

Offence committed in place of worship,
etc.--(2) Whoever commits an offence specified in sub-
section (1) in any place of worship or in any assembly
engaged in the performance of religious worship or
religious ceremonies, shall be punished with
imprisonment which may extend to five years and shall
also be liable to fine.
***
505. Statements conducing to public
mischief.--(1) Whoever makes, publishes or circulates
any statement, rumour or report--
***
(c) with intent to incite, or which is likely to
incite, any class or community of persons to commit any
offence against any other class or community,

shall be punished with imprisonment which may extend to three
years, or with fine, or with both."

9. Only where the written or spoken words have the
tendency of creating public disorder or disturbance of law
and order or affecting public tranquility, the law needs to
step in to prevent such an activity. The intention to cause
disorder or incite people to violence is the sine qua non of
the offence under Section 153-AIPC and the prosecution has
to prove the existence of mens rea in order to succeed.
[Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : 1995
SCC (Cri) 432]
29

10. The gist of the offence under Section 153-
AIPC is the intention to promote feelings of enmity or
hatred between different classes of people. The
intention has to be judged primarily by the language of
the piece of writing and the circumstances in which it
was written and published. The matter complained of
within the ambit of Section 153-A must be read as a
whole. One cannot rely on strongly worded and
isolated passages for proving the charge nor indeed
can one take a sentence here and a sentence there and
connect them by a meticulous process of inferential
reasoning [Manzar Sayeed Khan v. State of
Maharashtra, (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417]
.

11. In Bilal Ahmed Kaloo v. State of A.P. [Bilal
Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431 : 1997
SCC (Cri) 1094] , this Court analysed the ingredients
of Sections 153-A and 505(2)IPC. It was held that
Section 153-A covers a case where a person by
"words, either spoken or written, or by signs or by
visible representations", promotes or attempts to
promote feeling of enmity, hatred or ill will. Under
Section 505(2) promotion of such feeling should have
been done by making a publication or circulating any
statement or report containing rumour or alarming
news. Mens rea was held to be a necessary ingredient
for the offence under Sections 153-A and 505(2). The
common factor of both the sections being promotion of
feelings of enmity, hatred or ill will between different
religious or racial or linguistics or religious groups or
castes or communities, it is necessary that at least two
such groups or communities should be involved. It was
further held in Bilal Ahmed Kaloo [Bilal Ahmed Kaloo v. State
of A.P., (1997) 7 SCC 431 : 1997 SCC (Cri) 1094] that
merely inciting the feelings of one community or group
without any reference to any other community or group
cannot attract any of the two sections. The Court went on to
highlight the distinction between the two offences, holding
that publication of words or representation is sine qua non
under Section 505. It is also relevant to refer to the
judgment of this Court in Ramesh v. Union of
India [Ramesh v. Union of India, (1988) 1 SCC 668 : 1988
30

SCC (Cri) 266] in which it was held that words used in the
alleged criminal speech should be judged from the standards
of reasonable, strong-minded, firm and courageous men, and
not those of weak and vacillating minds, nor of those who
scent danger in every hostile point of view. The standard of
an ordinary reasonable man or as they say in English law
"the man on the top of a Clapham omnibus" should be
applied.

12. This Court
in PravasiBhalaiSangathan v. Union of
India [PravasiBhalaiSangathan v. Union of India,
(2014) 11 SCC 477 : (2014) 3 SCC (Cri) 400] had
referred to the Canadian Supreme Court decision
in Saskatchewan (Human Rights
Commission) v. William Whatcott [Saskatchewan
(Human Rights Commission) v. William Whatcott,
2013 SCC OnLine Can SC 6 : (2013) 1 SCR 467] . In
that judgment, the Canadian Supreme Court set out
what it considered to be a workable approach in
interpreting "hatred" as is used in legislative
provisions prohibiting hate speech. The first test was
for the Courts to apply the hate speech prohibition
objectively and in so doing, ask whether a reasonable
person, aware of the context and circumstances,
would view the expression as exposing the protected
group to hatred. The second test was to restrict
interpretation of the legislative term "hatred" to those
extreme manifestations of the emotion described by
the words "detestation" and "vilification". This would
filter out and protect speech which might be
repugnant and offensive, but does not incite the level
of abhorrence, delegitimisation and rejection that risks
causing discrimination or injury. The third test was for
the Courts to focus their analysis on the effect of the
expression at issue, namely, whether it is likely to
expose the targeted person or group to hatred by
others. Mere repugnancy of the ideas expressed is
insufficient to constitute the crime attracting penalty.

13. In the instant case, applying the principles laid
down by this Court as mentioned above, the question that
arises for our consideration is whether the Facebook post
31

dated 4-7-2020 was intentionally made for promoting
class/community hatred and has the tendency to provoke
enmity between two communities. A close scrutiny of the
Facebook post would indicate that the agony of the appellant
was directed against the apathy shown by the Chief Minister
of Meghalaya, the Director General of Police and the
DorbarShnong of the area in not taking any action against
the culprits who attacked the non-tribals youngsters. The
appellant referred to the attacks on non-tribals in 1979. At
the most, the Facebook post can be understood to highlight
the discrimination against non-tribals in the State of
Meghalaya. However, the appellant made it clear that
criminal elements have no community and immediate action
has to be taken against persons who had indulged in the
brutal attack on non-tribal youngsters playing basketball.
The Facebook post read in its entirety pleads for equality of
non-tribals in the State of Meghalaya. In our understanding,
there was no intention on the part of the appellant to
promote class/community hatred. As there is no attempt
made by the appellant to incite people belonging to a
community to indulge in any violence, the basic ingredients
of the offence under Sections 153-A and 505(1)(c) have not
been made out. Where allegations made in the FIR or the
complaint, even if they are taken on their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused, the FIR is
liable to be quashed [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] .

14. India is a plural and multicultural society.
The promise of liberty, enunciated in the Preamble,
manifests itself in various provisions which outline
each citizen's rights; they include the right to free
speech, to travel freely and settle (subject to such
reasonable restrictions that may be validly enacted)
throughout the length and breadth of India. At times,
when in the legitimate exercise of such a right,
individuals travel, settle down or carry on a vocation in
a place where they find conditions conducive, there
may be resentments, especially if such citizens
prosper, leading to hostility or possibly violence. In
such instances, if the victims voice their discontent,
and speak out, especially if the State authorities turn a
32

blind eye, or drag their feet, such voicing of discontent
is really a cry for anguish, for justice denied -- or
delayed. This is exactly what appears to have
happened in this case.

15. The attack upon six non-locals, carried out
by masked individuals, is not denied by the State; its
reporting too is not denied. The State in fact issued a
press release. There appears to be no headway in the
investigations. The complaint made by the
DorbarShnong, Lawsohtun that the statement of the
appellant would incite communal tension and might
instigate a communal conflict in the entire State is
only a figment of imagination. The fervent plea made
by the appellant for protection of non-tribals living in
the State of Meghalaya and for their equality cannot,
by any stretch of imagination, be categorised as hate
speech. It was a call for justice -- for action according
to law, which every citizen has a right to expect and
articulate. Disapprobation of governmental inaction
cannot be branded as an attempt to promote hatred
between different communities. Free speech of the
citizens of this country cannot be stifled by implicating
them in criminal cases, unless such speech has the
tendency to affect public order. The sequitur of above
analysis of the Facebook post made by the appellant is
that no case is made out against the appellant for an
offence under Sections 153-A and 505(1)(c)IPC."

(Emphasis supplied)

12. In the light of afore-mentioned interpretation of the very

provisions by the Apex Court and holding that all cases where

something is spoken cannot result in hate speech or disturbing the

harmony between religions, there is not even a semblance of
33

ingredient in the complaint to what the Apex Court has held in the

aforesaid cases.

13. The learned counsel appearing for the 2nd respondent

seeks to generate certain obfuscating contentions which are

contrary to the complaint or the offence alleged against the

petitioner. He would bring in outrage of the modesty of a woman.

Where from it springs, is imaginary. These contentions are

preposterous, to say the least. The Court is considering the

complaint and the allegations levelled in the complaint and is of the

opinion that, it is a reckless registration of crime by the

jurisdictional Police, without even looking into what are the contents

and what are the offences. It is in such cases, the Apex Court has

held that such crimes should be nipped in the bud, in exercise of

jurisdiction under Section 482 of the Cr.P.C. It becomes apposite

to refer to the judgment of the Apex Court in the case of STATE OF

HARYANA v. BHAJAN LAL4, wherein it is held as follows:-

".... .... ....

102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
4
1992 Supp (1) SCC 335
34

and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though
it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their 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
35

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 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."
(Emphasis supplied)

14. In the light of the judgment of the Apex Court in the case

of BHAJAN LAL quoted supra, even if the complaint is taken as

true, it would not meet the ingredients of offences alleged. It is

necessary to observe that protection of the integrity of the

nation, both locally and globally, is the duty of every citizen

of the nation, more so, of the representatives of those

citizens. In such a case, the crime cannot be permitted to be

continued, as it would become an abuse of the process of the law

and result in miscarriage of justice. The result of preceding analysis

is obliteration of crime.
36

15. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) First Information Report in Crime No.206 of 2024 registered by the High Grounds Police Station and pending before 42nd Additional Chief Metropolitan Magistrate, Bengaluru stands quashed.

Consequently, I.A.No.1 of 2024 also stands disposed.

Sd/-

(M. NAGAPRASANNA) JUDGE Bkp CT:SS

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