Karnataka High Court
Sanjay S/O Balagouda Patil vs The State Of Karnataka on 9 June, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:22933
CRL.P No. 6415 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6415 OF 2021
BETWEEN:
SANJAY
S/O BALAGOUDA PATIL
AGE 50 YEARS,
OCC. EX-MLA,
R/O HINDWADI
BELAGAVI - 591 108.
...PETITIONER
(BY SRI. HARSHAWARDHAN M. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally signed
by PADMAVATHI BY CHIKKODI POLICE,
BK REPRESENTED BY
Location: HIGH ADDL. STATE PUBLIC PROSECUTOR
COURT OF
KARNATAKA HIGH COURT OF KARNATAKA
BENCH DHARWAD - 580 011.
2. P.SRINIVAS
S/O PALAIAH
AGE 50 YEARS
OCC: GOVT.OFFICIAL
NON-GEZETTED
R/O:PLYING SQUAD, 02 CHIKKODI
SADALAGA CONSTITUENCY
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NC: 2023:KHC:22933
CRL.P No. 6415 of 2021
TALUK CHIKKODI
DISTRICT BELAGAVI.
...RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1 AND R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE FIR, COMPLAINT AND
CHARGE SHEET AS AGAINST THE PETITIONER UNDER
CHIKKODI PS CR.NO.46/2019 FOR THE OFFENCES
PUNISHABLE UNDER SEC.153(A) OF IPC AND 125 OF RP ACT
WHICH IS PENDING ON THE FILE OF PRL. CIVIL JUDGE AND
JMFC, CHIKKODI UNDER CC NO.434/2020.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.434 of 2020, pending before the Principal Civil Judge and JMFC, Chikkodi, arising out of Crime No.46 of 2019 registered for offences punishable under Section 153A of the IPC and Section 125 of the Representation of People Act, 1951 ('the Act' for short).
2. Heard Sri Harshawardhan M. Patil, learned counsel appearing for the petitioner and Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent Nos.1 and 2.
3. Facts, in brief, germane are as follows:-
-3-NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 The petitioner is an ex-Member of the Legislative Assembly, Belagavi. On 03-04-2019 between 2.00 p.m. and 8.00 p.m., a complaint comes to be registered against the petitioner on the score that when he was campaigning at R.D. High School Grounds, Chikkodi for the BJP, he was giving a speech. In the speech, it is alleged that he uttered the words "if you vote for Congress its like voting Pakistan and if you vote for Modi it is like voting Modi". Based upon the said statement, a complaint comes to be registered, which becomes a crime in Crime No.46 of 2019, for offences punishable under Section 153A of the IPC and Section 125 of the Act. The Police after securing permission to investigate into matter, investigated and filed a charge sheet against the petitioner in C.C.No.434 of 2020 for the aforesaid offences. Filing of the charge sheet is what drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would vehemently contend that there is no ingredient of Section 153A of the IPC that can even be present in the case at hand. The allegation is made in thin air as neither Section 153A of the IPC would get attracted nor Section 125 of the Act. He would seek -4- NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 quashment of the entire proceedings on the contention that it is mala fide.
5. On the other hand, the learned High Court Government Pleader would seek to justify the action and while refuting the submissions of the learned counsel for the petitioner submits that it is a matter of trial for the petitioner to come out clean.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The issue lies in a narrow compass. The words uttered during the speech which become the fulcrum of the allegation are as afore-quoted. Whether this would attract Section 153A of the IPC or Section 125 of the Act is what is required to be noticed. Section 153A of the IPC reads 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, -5- NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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."
Section 125 of the Act reads as follows:
"125. Promoting enmity between classes in connection with election.--Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."-6-
NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 Section 153A of the IPC makes it an offence if a person promotes enmity between different groups on the grounds of religion, race, place of birth, residence and language, which would be prejudicial to maintenance of harmony. Section 125 of the Act also deals with an identical situation of promoting enmity between classes in connection with election. Whether the aforesaid words have promoted any enmity between two groups is what is required to be noticed. There is no incident that is reported of any such disharmony among people for the complainant to allege violation of Section 153A of the IPC. The issue whether such speech or post on social media would become ingredients of Section 153A of the IPC need not detain this Court for long or delve deep into the matter. The Apex Court in the case of PATRICIA MUKHIM v. STATE OF MEGHALAYA1 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 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 1 (2021) 15 SCC 35 -7- NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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-A IPC. 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
(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 -8- NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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 -9- NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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 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
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NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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 Pravasi Bhalai Sangathan v. Union of India [Pravasi Bhalai Sangathan 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
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NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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 Dorbar Shnong 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
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NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 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 Dorbar Shnong, 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 has delineated the purport of Section 153A of the IPC qua certain statements made either in speeches or in
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NC: 2023:KHC:22933 CRL.P No. 6415 of 2021 social media and holds that free speech of a citizen of this Country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.
There is no indication of any disturbance of any public order by the act of the petitioner in the case at hand. In the light of the allegation not meeting the ingredients or the aftermath of Section 153A of the IPC or Section 125 of the Act, permitting further proceedings would become an abuse of the process of law. Sequitur of the aforesaid finding is that, no case is made out against the petitioner for the aforesaid offences.
8. In the result, the following order:
ORDER
(i) Criminal petition is allowed.
(ii) Proceedings in C.C.No.434 of 2020 pending before the Principal Civil Judge and JMFC, Chikkodi arising out of FIR in Crime No.46 of 2019, of Chikkodi Police Station stand quashed.
Sd/-
JUDGE nvj List No.: 1 Sl No.: 23