Karnataka High Court
Rahul Sivasankar vs Criminal Investigation Department on 17 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 13.02.2025
Pronounced on : 17.03.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
R
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.2457 OF 2024
BETWEEN:
RAHUL SIVASANKAR
S/O SH. SUDHIR SIVASANKAR
AGED ABOUT 49 YEARS
R/O 80, PASCHIM MARG
VASANT VIHAR, 1, SOUTH WEST
NEW DELHI - 110 057
CURRENTLY RESIDING AT 69
JOR BAGH, NEW DELHI - 110 003.
... PETITIONER
(BY SRI BIPIN HEGDE, ADVOCATE AND
SRI ABHISHEK K., ADVOCATE)
AND:
1. CRIMINAL INVESTIGATION DEPARTMENT
BY STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT
BENGALURU - 560 001.
2. N.AMBARESH
S/O LATE NARAYANASWAMY
2
AGED ABOUT 39 YEARS
COUNCILLOR, WARD
29, KOLAR, KARNATAKA - 563 101.
... RESPONDENTS
(BY SRI JAGADEESHA B. N., ADDL. SPP FOR R1;
R2 - SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR REGISTERED IN
CR.NO.0006/2024 DATED 04.03.2024 AT ANNEXURE-A
REGISTERED BY CID POLICE STATION, BENGALURU, KARNATAKA
FOR THE ALLEGED OFFENCES P/U/S 153A AND 505 OF IPC
PENDING ON THE FILE OF I ADDL.C.M.M., N.R. ROAD, BENGALURU
AGAINST THE PETITIONER HEREIN.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.02.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner calls in question registration of a crime in
Crime No.6 of 2024, for offences punishable under Sections 153A
and 505 of the IPC, pending before the 1st Additional Chief
Metropolitan Magistrate, N.R.Road, Bengaluru.
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2. Heard Sri Bipin Hegde, learned counsel appearing for the
petitioner and Sri B.N. Jagadeesha, learned Additional State Public
Prosecutor for respondent No.1.
3. Facts, in brief, germane are as follows:-
The petitioner is said to be a renowned journalist having over
25 years of experience covering news of national and international
importance; has been previously Editor-in-Chief of the Times Now
group and currently Consulting Editor of Network-18. The petitioner
is also said to be the author of several books.
4. The genesis of the lis is a tweet made on 16-02-2024, by
the petitioner. The tweet is about the budget that was presented by
the Government of Karnataka in which the State Government had
earmarked certain amount in its budget to different places of
worship and has in an interview asked a question about the State
Government's indifference and arbitrary allocation of funds. This
formed the fulcrum of the tweet. The moment tweet is notified, the
2nd respondent- Councillor at Kolar registered a complaint against
the petitioner. The complaint becomes a crime in Crime No.6 of
4
2024 for the aforesaid two offences. The registration of crime is
what has driven the petitioner to this Court in the subject petition.
5. The learned counsel Sri Bipin Hegde, appearing for the
petitioner would vehemently contend that what was tweeted is on a
public document. In the tweet, the petitioner has only compared
the figures of allocation of funds to Hindu temples and to other
minority institutions. It is his submission that by no stretch of
imagination the tweet would amount to an offence under Section
153A or Section 505 of the IPC. He would seek quashment of
proceedings.
6. The 2nd respondent/complainant is absent as always in
such complaints. The complainant who would register the
complaint for extraneous reasons would never appear before the
Court and canvas for the alleged offences. This is one such case.
The learned Additional State Public Prosecutor representing the
State is thus heard.
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7. The learned Additional State Public Prosecutor would
contend that the tweet of the petitioner had the effect of disturbing
the peace and harmony between two religious groups and,
therefore, the investigation in the least must be permitted in the
case at hand. It is his submission that the investigation itself is
stayed and, therefore, the guilt is yet to be projected by a final
report. He would seek dismissal of the petition.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The facts are not shrouded in dispute. The entire issue
triggers from registration of a complaint by the 2nd respondent and
the complaint is triggered on account of a tweet of the petitioner. I
therefore deem it apposite to reproduce the tweet for
completeness. The tweet is as follows:
"Rs 330 crores have been earmarked by Cong
Karnataka State Government in its budget
for development of wakf property, for construction of Haj
Bhavan in Mangaluru and Christian community development.
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This is a state where the Government pockets on an average
₹450 crores worth of annual donations by Hindu devotees to
400 'A & B' category temples controlled by the Karnataka
endowment (Muzrai) department.
Worse, it opposes any bill to free Hindu temples from State
control.
This is secularism 101!
RICH PICKINGS
District Temples Revenue**
Dakshina 80 155
Kannada
Udupi# 43 75.7
Bengaluru 37 16.6
Urban
Uttara 16 9
Kannada
Tumakuru# 16 37.1
Karnataka* 398 445.4"
The tweet is an extract from the budget. The relevant portion of
the budget is as follows:
"BUDGET 2024-25
190. Workshops on current affairs will be conducted for
moulavis and muttavallis registered with the State
Wakf Board.
191. Rs.20 crore will be provided to provide basic facilities
at major pilgrimage destinations in the State.
192. Construction work of Mangaluru Haj Bhavan will be
undertaken at a cost of Rs.10 crore.
7
193. A provision of ₹50 crore will be made for the
development of major pilgrimage destinations of Jains.
194. Rs.200 crores will be provided for the development of
Christian community.
195. Tripitakas, the sacred texts of Buddhist community,
will be translated into Kannada. For this necessary
grant will be allocated.
196. Rs.2 crore will be provided for the formulation of
targeted schemes aimed at financial empowerment of
Sikligar community.
197. Shri Nanak Jhira Saheb Gurudwara in Bidar will be
given a development grant of ₹1 crore.
198. Programs at the cost of Rs.393 crore will be
formulated and implemented during 2024-25 through
Minorities Development Corporation."
Therefore, what is tweeted by the petitioner is an item from the
budget. The budget is a public document, that invites public
discourse, critics and applauses like. Therefore, the petitioner has
analyzed the budget, portion of the budget is as afore-mentioned.
The tweet is bereft of incendiary language or motivation to discord.
It is un-understandable as to how the aforesaid analysis can even
become a crime that too, for offences punishable under Sections
153A and 505 of the IPC. Section 153A of the IPC reads as follows:
"153-A. Promoting enmity between different
groups on grounds of religion, race, place of birth,
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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
(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
(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.
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."
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Section 153A deals with promoting enmity between groups on
grounds of religion, race, place of birth by doing acts prejudicial to
maintenance of harmony. Section 505 of the IPC which is also
alleged, reads as follows:
"505. Statements conducing to public mischief.--
(1) Whoever makes, publishes or circulates any statement,
rumour or report,--
(a) with intent to cause, or which is likely to cause, any
officer, soldier, sailor or airman in the Army, Navy or
Air Forceof 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
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) Statements creating or promoting enmity,
hatred or ill-will between classes.--Whoever makes,
publishes or circulates any statement or report containing
rumour or alarming news 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
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with imprisonment which may extend to three years, or with
fine, or with both.
(3) Offence under sub-section (2) committed in
place of worship, etc.--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, rumour or
report, has reasonable grounds for believing that such
statement, rumour or report is true and makes, publishes or
circulates it in good faith and without any such intent as
aforesaid."
Section 505 of the IPC deals with statements, publication of
circular, rumour or a report which has a propensity relating to
public mischief. Interpretation of both these offences and
necessary ingredients thereon, to even become a crime need not
detain this Court for long or delve deep into the matter.
10. The Constitutional Courts on myriad occasions have
expounded that for an offence under Section 153A of the IPC, there
must be clear, manifest intention to promote enmity, hatred or ill-
will between groups, it is sine qua non, which ostensibly cannot be
foundationed upon speculation. This is the law enunciated by the
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Apex Court in a constellation of judgments, I deem it appropriate
to quote a few. The Apex Court in the case of JAVED AHMAD
HAJAM v. STATE OF MAHARASHTRA1 interpreting Section 153A
of the IPC has held as follows:
"..... .... ....
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
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
1
(2024) 4 SCC 156
12
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 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
13
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 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
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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)
The Apex Court holds that every citizen has a right to be critical of
the action of the Government. The right to dissent in a legitimate
and lawful manner is an integral part of the rights guaranteed
under Article 19(1)(a) of the Constitution of India. Every citizen
must respect the right of others to dissent. In the subsequent
judgment in the case of SHIV PRASAD SEMWAL v. STATE OF
UTTARAKHAND2 again interpreting Section 153A the Apex Court
has held as follows:
"..... ..... ....
2
2024 SCC Online SC 322
15
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.
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.
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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 well being 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-BIPC.
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 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
17
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 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,
18
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 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)
19
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
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)
20
11. The Apex Court in the case of PATRICIA MUKHIM v.
STATE OF MEGHALAYA3 considers the purport of Sections 153A
and 505 of the IPC. The facts before the Apex Court was a crime
registered against a face-book post posted by Patricia Mukhim. It
was criticising the Chief Minister of Meghalaya and other officers.
The Apex Court holds as follows:
".... .... ....
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 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,
3
(2021) 15 SCC 35
21
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
(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 tranquility, 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.
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.
***
22
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]
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
23
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
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
24
"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
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] .
25
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 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."
The Apex Court considers that tweets or posts would not become an
offence under Section 505 of the IPC as it should be resulting in
26
disharmony in the State. What is projected in the case at hand is,
the tweet quoted hereinabove. The tweet is rooted in a factual
analysis of a public document, The Budget. Its analysis is
done by the journalist. There is not even a modicum of
ingredient of both the offences. The submission that such a
tweet could sow the seeds of communal discord, is a figment
of imagination. The registration of a crime on a frivolous
complaint is on the face of it, is a reckless act on the part of
jurisdictional Police.
12. Despite several opportunities, the complainant has not
appear before the Court. The intention of the complainant is clear,
only to register the crime, but not to pursue it. This has been the
case, in cases of the kind, where crimes are registered by
jurisdictional police on a flippant complaint. When challenged, none
would appear to pursue the crime except in some circumstances.
Be that as it is. Even if the allegations are taken on their face
value, it would not make an offence even under Section 153A or
Section 505 of the IPC as alleged. It becomes apposite to refer to
the judgment of the Apex Court in the case of STATE OF
27
HARYANA v. BHAJAN LAL4 wherein the Apex Court holds as
follows:-
".... .... ....
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 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
1992 Supp (1) SCC 335
28
(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
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge."
In the light of unequivocal facts as narrated hereinabove,
permitting investigation even in the case at hand would run foul of
the elucidation of the Apex Court and lead the investigation to
become a gross abuse of the process of law and result in patent
injustice. I, therefore, deem it appropriate to exercise my
jurisdiction under Section 482 of the Cr.P.C. and obliterate the
crime.
29
13. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) FIR in Crime No.6 of 2024 registered by CID Police Station, Bengaluru and pending before the I Additional Chief Metropolitan Magistrate, N.R.Road, Bengaluru stands quashed.
SD/-
(M.NAGAPRASANNA) JUDGE nvj CT:SS