Karnataka High Court
Mahaboob Ghouse vs State By Yadiri Town Police on 6 December, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NOS.19700-19715/2015
BETWEEN:
1. MAHABOOB GHOUSE
S/O MODEEN SAB
AGE ABOUT 22 YEARS
OCCUPATION - STUDENT
GOGI (K), SHAHPUR (T)
YADGIR-585223
2. WASEEM S/O ABDUL ALEEM
AGE ABOUT 28 YEARS
OCCUPATION - STUDENT
SANTHRASAWADI
GULBARGA-585102
3. KHALEEL AHAMED
S/O ABDUL WAHID
AGE ABOUT 23 YEARS
OCCUPATION - STUDENT
KHATHI COLONY, SHAHPUR
YADGIR-585223
4. NAVEED CHAND
S/O ABDUL SAPTAR CHAND
AGE ABOUT 21 YEARS
OCCUPATION-STUDENT
2
ADIL PURA AREA, SHAHPUR
YADGIR-585223
5. NAYEEM S/O INAYAT RAHIM
AGE ABOUT 21 YEARS
OCCUPATION - STUDENT
ADIL PURA, SHAHPUR
YADGIR-585223
6. MUJABBAR REHAMAAN
S/O IBRAHIM CHOWDRY
AGE ABOUT 24 YEARS
OCCUPATION - BUSINESS
ASSAR MOHALLA
YADGIR-585201
7. SHARUK S/O MOHAMMED AHAMED
AGE ABOUT 21 YEARS
OCCUPATION - STUDENT
ASSAR MOHALLA
YADGIR-585201
8. AHAMED S/O MOHAMMED JALLEL KHALIGAR
AGE ABOUT 21 YEARS
OCCUPATION - STUDENT
CHATANA AREA
YADGIR-585201
9. MOHAMMED SHOIB
S/O MOHAMMED ABDUL KHAYUUM
AGE ABOUT 21 YEARS
OCCUPATION - STUDENT
BEHIND ASSAR MOHALLA
YADGIR-585201
10. RIYAZUDDIN
S/O SHAIK MOHABOOB PATEL
AGE ABOUT 29 YEARS
OCCUPATION- STUDENT
3
KHAJAGARA WADI
YADGIR-585201
11. SYED JAVEED
S/O SYED ZAINUDDIN
AGE ABOUT 25 YEARS
OCCUPATION - AUTO DRIVER
BADABAZAR, MUSLIMPURA
YADGIR-585201
12. SYED MUYNUDDIN
S/O BHAKHAR BHARI
AGE ABOUT 21 YEARS
OCCUPATION - STUDENT
MAHATMA GANDHIJI COLLEGE
YADGIR-585201
13. ANNAN S/O ABDUL HAMEED
AGE ABOUT 20 YEARS
OCCUPATION - STUDENT
ASSAR MOHALLA
YADGIR-585201
14. MOHAMMED NAZEER
S/O ABDUL SATTAR
AGE ABOUT 25 YEARS
OCCUPATION - STUDENT
GOGI (K), SHAHPUR (T)
YADGIR-585223
15. MUZAVERHUSSAIN
S/O SHABBIR HUSSAIN
AGE ABOUT 22 YEARS
KASABA WADI
YADGIR-585201
16. MOHAMED IMRAN
S/O ABDULNABI
AGE ABOUT 20 YEARS
4
KASABA WADI
YADGIR-585201
... PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE-ABSENT)
AND:
STATE BY YADGIRI TOWN POLICE
YADGIRI, REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
KALBURGI-585 101
... RESPONDENT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA R/W
SECTION 482 OF CR.P.C. PRAYING TO QUASH ANNEXURES
'C' & 'D' AGAINST THE PETITIONERS I.E., THE CHARGE
SHEET IN C.C.NO.722/2014 PENDING IN THE FILES OF
SENIOR CIVIL JUDGE & CHIEF JUDICIAL MAGISTRATE AND
ORDER SHEET OF TRIAL COURT AT YADAGIR, IN CRIME
NO.26/2014 REGISTERED BY THE RESPONDENT POLICE
AND THIS PETITIONERS ARRAYED AS ACCUSED NOS.1 TO
16 FOR THE ALLEGED OFFENCES UNDER SECTIONS 143,
147, 153, 153(B) R/W SECTION 149 OF IPC.
THESE PETITIONS COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
5
ORDER
These petitions are filed under Articles 226 and 227 of Constitution of India R/w Section 482 of Cr.P.C. seeking to quash Annexures-'C' and 'D' namely, the chargesheet in C.C.No.722/2014, pending on the file of Senior Civil Judge and Chief Judicial Magistrate at Yadgir, in Crime No.26/2014 registered for the offences punishable under Sections 143, 147, 153, 153-B r/w Section 149 of IPC.
2. The learned counsel for the petitioners is absent and has not addressed any arguments.
3. Heard the learned High Court Government Pleader. Perused the impugned chargesheet and the grounds urged in the petitions.
4. The substance of the accusation against the petitioners is that on 30.01.2014, 'Campus Front of India' organized a candle light procession on the occasion of Martyrs day. At about 6-30 p.m, the procession was proceeding from Junior College ground to Gandhi Chowk. 6 At that time, the complainant namely, the PSI of Yadgir Police Station and his team were posted on Bandobast duty. When the procession came near Dargah cross, few people who were present in the procession (accused Nos.1 to 16) intentionally raised slogan shouting 'RSS Murdabad, Pakistan Zindabad' with a view to defame the RSS organization and also with a view to cause breach of peace and thereby committed offences punishable under Sections 143, 147, 153, 153-B r/w Section 149 of IPC.
5. The main contentions of the petitioners are that petitioners are falsely implicated in the alleged offences without conducting any investigation. Just for statistical purpose the petitioners are implicated in the alleged offences. The allegations made in the chargesheet do not attract any of the offences alleged against them. The program was organized with the permission of the police and therefore, there could not have been any unlawful assembly so as to attract the offences under Sections 143 and 147 of IPC. Section 153-B of IPC gets 7 attracted only if any act is committed by any member of particular religion, class and community against the member of another religion, class and community. No material is produced by the prosecution in proof of the involvement of the petitioners in the alleged incident. Hence, the initiation of proceedings against the petitioners is illegal and abuse of the process of Court.
6. The learned High Court Government Pleader does not dispute the fact that the candle light procession was conducted with the prior permission of the authorities and therefore, the petitioners could not have been charged for the offence punishable under Sections 143 and 147 of IPC. Insofar as other offences are concerned, the learned High Court Government Pleader submits that the ingredients of the said offences are also not made out by the prosecution.
7. Undisputedly, the alleged incident had taken place when the 'Campus Front of India' had organized a candle light procession. It is not the case of the 8 prosecution that the said procession was taken out without prior permission of the authorities. The said 'Campus Front of India' is not arrayed as accused, instead the petitioners herein are arrayed as accused Nos.1 to 16 on the allegations that the petitioners herein raised slogans with intent to create breach of peace and to provoke rioting. There is absolutely no material on record as to the basis on which only the petitioners herein could be singled out among the large mob gathered during the procession. By the very fact, the prosecution is launched only against 16 persons, it cannot be said that the said persons formed into an unlawful assembly with a view to commit the above offences. On the other hand, the circumstances alleged in the FIR indicate that during the procession, slogans were raised by the mob.
8. An assembly of five or more persons is designated an "unlawful assembly", within Section 141 of IPC, if the common object of the persons composing that assembly is--
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"(First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) -- To resist the execution of any law, or of any legal process; or (Third) -- To commit any mischief or criminal trespass, or other offence; or (Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or 10 to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
9. The allegations made against the petitioners do no attract any of the above ingredients. It is not the case of the prosecution that by raising slogans, the petitioners herein committed any rioting or that they were armed with any deadly weapons. Therefore, on the face of it, the provisions of Sections 143 and 147 of IPC are not attracted to the case in hand.
10. Coming to Sections 153 and 153-B of IPC, Section 153 of IPC reads as under: -
153. 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 11 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.
Section 153-B reads as under:-
"153B. Imputations, assertions prejudicial to national-integration.--
(1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,--
(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial,
language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as 12 by law established or uphold the sovereignty and integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or
(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, 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 13 ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
11. A plain reading of the above provisions make it evident that in order to constitute the offence thereunder, imputations must be made by any class of persons as a member of any religious, racial, language or regional group or caste or community. It is not the case of the prosecution that in the instant case, petitioners herein raised the aforesaid slogans being the members of any particular religious, racial, language or regional group or caste or community. On the other hand, the allegations made against the petitioners are that during the candle light procession, sporadic slogans were raised. Therefore, even the provisions of Section 153-B of IPC are not attracted to the facts of the case.
12. Though it is contended that the slogans raised by the petitioners are calculated to provoke the members of the RSS organization and to provoke them to riot, there 14 is absolutely no basis to infer that the said slogans were raised with the above intention. It is trite that utterances have to be construed in the context in which they were made and in the background of the target audience. It is not the case of the prosecution that any RSS members were present during the occurrence or any of the members of the RSS organization had raised any objections to the said slogans. It is only the Police Officers, who were deputed on Bandobast have filed the F.I.R on the assumption that the said slogans may provoke breach of peace and may provoke the members of the RSS organization to riot. The apprehension or the assumption of the police officers cannot be a basis for the prosecution of the accused. That apart, the very essence of Sections 153 and 153B of IPC is that, the offending slogans should be directed against any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community with a view to cause disharmony or the create feelings of enmity, hatred or ill- will between such members and other persons. Shouting a 15 slogan against an individual or any political outfit cannot be termed as an appeal on the ground of religion, race, language or regional group or caste or community within the meaning of Section 153B of IPC. It is also not the case of the prosecution that raising of such slogans were prohibited or restrained during the candle light procession. Except alleging that inspite of their requests the petitioners raised slogans, no material is produced in this regard and nothing is available on record to show that raising of the slogans were either prohibited or were calculated to cause disharmony or feelings of enmity or hatred or ill-will between such groups. Therefore, viewed from any angle, I am of the view that the allegations made against the petitioners do not constitute any of the offences alleged against them. That being the case, the prosecution of the petitioners for the alleged offences is patently illegal and an abuse of the process of Court and therefore cannot be allowed to continue. Hence to secure the ends of justice, the impugned charge sheet is liable to be quashed. 16
Accordingly, the petitions are allowed. The impugned charge sheet in C.C. No.722/2014 pending on the file of the Senior Civil Judge and CJM, Yadgiri is hereby quashed.
Petitions are allowed as indicated above.
Sd/-
JUDGE RSP/LG