Jammu & Kashmir High Court - Srinagar Bench
Farooq Ahmad Sheikh vs State Of J&K; Through Sho P/S D. H. Pora on 25 September, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
Serial No. 1
2nd Supplementary list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B. A. No. 70/2017
C/w
B. A. No. 64/2017
Date of Order: 25.09.2017
Farooq Ahmad Sheikh Vs State of J&K through P/S D.H. Pora
Zahid Ali Lone Vs. State of J&K through P/S D.H. Pora
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Salih Pirzada, Advocate
For respondent(s): Mr Mehraj-ud-Din Bhat, Dy. AG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. On 04.08.2017, the police authorities of police station D. H. Pora, Kulgam, came to know from a reliable source that the petitioners, alongwith others, raised unwarranted slogans, with the object to induce the youth of the adjoining areas to indulge in rioting and join the militant ranks to accomplish the ultimate aim of seceding the State of Jammu and Kashmir from the Union of India. This occurrence is alleged to have taken place on 02.08.2017, at the time of the burial of one of the militants, who had died. On this information, a case for offences under Section 153 RPC and Section 13 Unlawful Activities (Prevention) Act 1967, bearing FIR No. 69/2017, was registered at the Police Station D. H. Pora, District Kulgam, where the investigation commenced. The petitioners were arrested on 04.08.2017. During the course of the investigation of the case, the petitioners moved an application for bail before the Court of the learned B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 1 of 10 Principal, District and Sessions Judge, Kulgam, who by his order dated 19.08.2017, rejected the same, primarily, on the ground that taking into consideration the facts and circumstances of the case and the nature and seriousness of the charge, leveled against the petitioners, they were not entitled to bail.
2. Aggrieved by this order, the petitioners filed two applications for admitting them to bail before this Court on the grounds, inter alia, that the offence under Section 153, is not made out in the instant case, as the section presupposes that the accused should do something illegal and by committing such illegal act, they must have given malignant or wanton provocation likely to incite rioting. Since the allegations are shown to fall within the ambit and scope of Section 153 RPC, therefore, resort cannot be taken simultaneously for implicating the petitioners in any cognate or separate offence. There is nothing in the FIR to state what words were used by them to incite the youth to join the militant ranks and in the absence of such a narration in the FIR or electronic record preserving such speech, there is no evidence to implicate the petitioners for any unlawful 'activity within the meaning of the Act.
3. The petitioners have proceeded to state that the investigation of the case is complete. Their continued detention in the hands of police authorities will prevent them from preparing for their defence, which is a sine qua non of a criminal trial. It has also been stated that the pretrial custody is discouraged by law and the continued custody assumes penal consequences and will have severe implications on their defence and the health conditions. They are innocent. They have not committed any offence. The allegations leveled against them are baseless. These have no relevance to Section 13 of the Unlawful Activities (Prevention) Act. In the end, the petitioners have urged that they be admitted to bail.
4. In the objections, the State has contended that, during the investigation of the case, the site plan has been prepared; the statement of the witnesses under B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 2 of 10 Section 161/162 Cr. PC, have been recorded; the petitioners have been arrested; the offences under Section 153 RC and 13 ULA (P) Act, stand established against them and that they have been lodged in District Jail, Anantnag.
5. Heard and considered. The relevant case diary has also been perused by me.
6. What requires to be seen and considered at first is as to what are the parameters, limits and boundaries on the touchstone of which an application for the grant of bail can be determined. The answer to this question is provided in the law laid down in the case of Prasad Shrikant Purohit v. State of Maharashtra, bearing (Criminal Appeal No. 1448 of 2017 (Arising out of Special Leave Petition (Cri.) No. 3716 of 2017) dated 21.08.2017), the relevant excerpts of which are detailed below:
"21. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court to consider, among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge."
7. The maxim of the law of bails is "bail and not jail." The presumption of law is that a person accused of an offence is innocent unless and until his guilt is proved. Individual rights, liberties and privileges have to be balanced as these are of paramount importance. Arrest and detention in custody can cause incalculable harm to the reputation and self-esteem of a person. The Court has to see whether any useful purpose will be accomplished in the further detention of the accused. Bail cannot be withheld as a means of punishment. Prisons hell B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 3 of 10 destroys the tender sentiments of a person and to cap it all it is only in cases where the punishment provided is death or imprisonment for life that bail can be withheld and in all other cases, subject to any restrictions imposed by law, grant of bail is the rule and its refusal an exception. The investigation of the case appears to be complete when tested in the teeth of the objections filed by the State itself. Nowhere has it been stated in the objections that the accused if released on bail will flee from justice or will tamper with the prosecution evidence.
8. Looking at the matter from a different perspective grant of bail is a discretionary power but this discretion has to be exercised in a judicious manner. It is not an unbridled power. Therefore, there is a need to indicate in the order, the reasons for concluding prima-facie why and under what circumstances bail has been granted. Elaborate documentation on the merits of the case and detailed examination of the evidence of the case is not required to be made at the stage of granting or refusing bail. All that is needed is a broad and not a critical examination of the evidence. It has to be borne in mind that any expression of opinion regarding evidence may not in the ultimate analysis influence the decision of the case on merits.
9. Applying the above attributes and guidelines to the instant case, the law laid down in case titled Balwant Singh and Another v. State of Punjab, reported in (1995) 3 SCC 214, assumes significance and it reads as under:
"12. It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124A or Section 153A IPC Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans - which arrest -and not the casual raising of one or two slogans - could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness sometimes is B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 4 of 10 counterproductive and can result in inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups."
10. Paragraph Nos. 2, 23 & 24, of the judgment delivered in the case of Bilal Ahmad Kaloo v State of Andhra Pradesh, reported in 1997 (3) Crimes 130 (SC), are also of essence and these are detailed below:
"2. The case against the appellant in short is the following. Appellant was an active member of a militant outfit called Al- Jehad which was formed with the ultimate object of liberating Kashmir from Indian Union. With this in mind appellant spread communal hatred among the Muslim youth in the old city of Hyderabad and exhorted them to undergo training in armed militancy and offered them arms and ammunitions. He himself was in possession of lethal weapons like country-made revolver and live cartridges. He was propagating among the Muslims that in Kashmir Muslims were being subjected to atrocities by the Indian Army personnel.
23. In the result, we partly allow this appeal and set aside the conviction and sentence passed on the appellant for offences under Section 124A, 153A and 505(2) of the Indian Penal Code. We confirm the conviction and sentence passed on him under Section 25(1B) (a) of the Arms Act. The appellant shall be released from custody forthwith if he has undergone the sentence passed on him under section 25 (1B) (a) of the Arms Act and is not wanted in any other case.
24. Before parting with this judgment, we wish to observe that the manner in which convictions have been recorded for offences under Section 153A, 124A and 505(2), has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the sections, as already observed, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three sections. The appellant strictly speaking should not have been put to trial for those offences. Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred etc. does harm to the cause. It is expected that graver the offence, greater should be the B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 5 of 10 care taken so that the liberty of a citizen is not lightly interfered with."
11. The relevant excerpts of the case titled Bikramjit Singh and Others v. State of Punjab, CRM M-285, 1063, 1071, 1143, 2021, 2480, 4755, 4811 and 5564 of 2016, decided on 16.03.2016, also need to be enumerated below:
"9. It is also interesting to note that during the course of investigation statements of three PWs, namely, 'DS', 'RS', and 'TS', (names intentionally concealed on the request of State counsel) were recorded on November 29, 2015 to the effect that 13 resolutions of the year 1986 of 'Sarbat Khalsa' were read out in the congregation. It is recorded that the said PWs have stated that Sikh community had not got justice for the incident of 1984 and Joga Singh Mohle had stated that there has to be armed struggle and rule has to be snatched and slogans were raised against Indian Government which had the effect of feeling of hatred and dissatisfaction. People had raised slogans of 'Khalistan Zindabad' and the flags of Khalistan were unfurled. The said statement are only against Joga Sing Mohle. There was no other name mentioned by the said PWs. The statements of said three witnesses were again recorded on December 5, 2015 in the shape of supplementary statements. The supplementary statements of these PWs alongwith few more statements were recorded to the effect that after the congregation, the petitioners had provoked 8/10 Sikh youth armed with bare swords to fight for Khalistan and eliminate persons of other community from Punjab. The effect of supplementary statements recorded after about 1 month of the incident would be a debatable issue.
16. I have considered the nature of allegations against the petitioners in context to the law laid down in Kedar Nath Singh v. State of Bihar, Manu/SC/0074/1962: AIR 1962 SC 955, wherein the scope of Section 124 A IPC in context to the provisions of Article 19 (1) (a) of the Constitution of India was considered by the Apex Court and it was held as follows:-
"The provisions of the sections read as a whole along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have tendency to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 6 of 10 comment on Government action, however, strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order."
21. So far as petitioners Gurjinder Singh and Pappalpreet Singh are concerned, their petitions bearing CRM M-4755 of 2016 and CRM M-4811 of 2016 are also allowed and it is ordered that in case of arrest of petitioners Gurjinder Singh and Pappalpreet Singh they will be released on bail to the satisfaction of the arresting officer subject to the conditions that they will join investigation as and when required by the police and that they will not tamper with the evidence or hamper the investigation in any manner."
12. Para Nos., 8, 12 & 13, of the law laid down in the case of Shreya Singhal v. Union of India (UOI), reported in AIR 2015, SC 1523, are also germane to the issue and these read as under:
"8. The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme."
12. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 7 of 10 approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated." (at page 1105, 1106)
13. This leads us to a discussion of what is the content of the expression "freedom of speech and expression". There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1) (a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression "public order".
13. Taking into consideration the above dictums of law, wherein the petitioners/accused were involved in more heinous offences than the present one, raising some slogans only a couple of times by some lonesome persons which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124 A nor Section 153 A IPC. It does not constitute any threat to the Government of India nor could the same give rise to the feelings of enmity or hatred among different communities or religious or other groups. In the cases of Bikramjit Singh and Bilal Ahmad Kaloo, the Court said that the essential ingredients of Section 124-A, 153-A and 505 (2) IPC are not made out and the arrest on the ground of criticism of public B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 8 of 10 measures or comment on Government action, however, strongly worded would be within reasonable limits and consistent with the fundamental right of freedom of speech and expression. In the Shreya Singhal's case, also the court taking a cue from the preamble of the Constitution of India, held that to justify the suppression of free speech there must be a reasonable ground to fear that serious evil will result if free speech is practiced and that the advocacy of a particular cause which herein this case is inducement and not incitement, howsoever, unpopular is at the heart of Article 19 (1) (a), of the Constitution of India.
14. The democratic depth and breadth of India is its beauty. Freedom of speech and expression is the soul of our democratic and secular fabric which is a dream for a great number of people living on this planet. The might of our great India is not so weak that by using a few nonproductive and ego satisfying slogans the people will be scared even by a grain of fear that their lives will be put at a peril. Ours is a pluralist, multilingual, multi-linguistic and a heterogeneous country where the rights that are fundamental in nature flow to all on the same platter. The citizens of India believe in cohesiveness and not disruption except for some minor aberrations.
15. Mere inducement and not incitement which is the main ingredient of Section 13 UAP Act, as stated in the FIR, prima-facie justifies the grant of bail in favour of the petitioners and, accordingly, it is directed that the petitioners shall be released on bail on the production of a personal bond to the tune of Rs. 60,000/- each with a surety of the like amount each to the satisfaction of the learned Principal District and Sessions, Judge Kulgam, subject to the condition that they will join the investigation as and when required by the police and that they will not tamper with the evidence or hamper the investigation of the case in any manner.
16. A copy of this order shall be sent to the learned Principal District and Sessions Judge, Kulgam, for information and compliance. The case diary is returned to B. A. No. 70/2017 C/w B. A. No. 64/2017 Page 9 of 10 the learned Dy. Advocate General. Anything said and done herein this order shall not prejudice the mind of the trial judge, who shall be at liberty to hear and determine the case on its merits.
(M. K. Hanjura) Judge Srinagar 25.09.2017 "Manzoor"
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