Bangalore District Court
Sanjay Balaso Patil vs Marihal Police Station Belagavi ... on 15 February, 2025
1 Crl.A. No.162/2025
KABC010023532025
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82)
:Present:
Sri Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to former and elected MPs/ MLAs in the State of
Karnataka)
Dated this the 15th day of February, 2025
Crl.A. No.162 / 2025
APPELLANT: Sri Sanjay B. Patil
S/o Balasaheb Patil
Aged about 53 years
r/at: 'Sneha',
Plot No.17, 18 and 19
1st Cross, Adarsh Nagar
Hindwadi, Belagavi-590011
(Sri Ravi B.Naik Associates,
Advocate for Appellant)
V/s
RESPONDENT : State by Marihal Police Station
Belagavi District
(Learned Public Prosecutor for
Respondent)
2 Crl.A. No.162/2025
JUDGMENT
This criminal appeal is filed under Section 374(3)
(a) of Cr.P.C., by the appellant being aggrieved by the Judgment and order of conviction passed by the learned XLII ACMM Court, Bangalore in CC No.5242/2024 dated 20.01.2025 wherein the appellant/accused was convicted for the offence punishable under sec.153 of IPC and was sentenced to undergo S.I. for a period of 3 months and a fine of Rs.3,000/- and in default of payment of fine amount, the accused was sentenced to undergo an additional S.I. for a period of one month.
2. The appellant herein was the accused and the respondent herein was the complainant before the trial court. The parties are addressed to their original rankings as that of the trial court for the sake of convenience.
3 Crl.A. No.162/2025
3. The brief facts leading to the above case is that a written information came to be filed before the Marihal Police station, Belagavi District by PW1 Nagesh Dattu Kolkar, who was the member of Flying Squad during the Legislative Assembly elections in the year 2018 contending that a speech which was rendered by the appellant/accused Sanjay Balaso Patil had attracted rigors of Sec.125 of Representation of People Act, 1951 ('R.P.Act' for short) and Sec.153 of IPC. Based on the said complaint a first information report came to be registered in Cr.No.143/2018 by respondent police for the aforesaid offences. On completion of the investigation, the final report came to be filed by the jurisdictional police on which necessary cognizance was taken. Thereafter, it was noticed from the records that due to the establishment of Special Court for trial of Criminal Cases against sitting and former Mps and MLAs in the State of Karnataka, the case was transferred to XLII Addl. CJM, Bengaluru. 4 Crl.A. No.162/2025 The trial court had secured the accused persons and necessary charge came to be framed wherein the accused had pleaded not guilty and claimed to be tried. The prosecution in order to prove their case had examined in all 7 witnesses as PW1 to PW7 and got marked documents as per Ex.P.1 to Ex.P.12 and closed their side. On completion of prosecution side evidence, the statement of accused came to be recorded as contemplated under Sec.313 of Cr.P.C., wherein the accused had denied all the incriminating materials available against him. The accused had not preferred to lead any defence evidence. After hearing both sides on merits, the trial court was pleased to convict the accused person by imposing aforesaid simple imprisonment as well as fine.
4. Being aggrieved by the same, the present appeal has been filed on the ground that the impugned judgment and order of conviction passed by the learned Trial Court is not maintainable in the eyes of 5 Crl.A. No.162/2025 law. It is also been submitted that the Magistrate had rightly held that the speech which was allegedly delivered by the accused did not attract rigors of Sec.125 of R.P.Act as it did not incite the voters in the constituency nor there was any intention on the part of the appellant to cause enmity between Hindu and Muslims. It is also been submitted that the impugned order of conviction under Sec.153 of IPC is capricious since none of the ingredients were made out. The appellant has also contended that a grave irregularity could be pointed out in the entire investigation process itself, since the complainant who was the member of flying squad had not disclosed the source through which he had secured the CD allegedly containing a hate speech which is intended to incite violence in the constituency. Even otherwise it has been submitted by the appellant that as per the judgment in para-15 the trial court had rightly observed that the prosecution has failed to prove the contents of the CD at Ex.P.2 6 Crl.A. No.162/2025 even though a certificate is issued under Sec.65B of Indian Evidence Act. Further, the appellant has contended that the impugned order of the trial court in convicting the accused for offence punishable under Sec.153 of IPC and acquitting him for the offence punishable under Sec.125 of R.P.Act would be a farrago in its nature, since the allegation of inciting violence for the purpose of rioting and for the purpose of creating enmity between two communities were quite similar and when both the offences are based on similar allegations, the acquittal for one offence would clearly indicate absence of materials for conviction for another offence.
5. The learned counsel for appellant during the course of arguments has argued that the charge sheet materials and the case of the prosecution does not indicate of the materials which was required to proved and established by the prosecution for the offence punishable under Sec.153 of IPC and hence, he has 7 Crl.A. No.162/2025 sought for setting aside the impugned judgment and order of conviction and to acquit the appellant/accused.
6. On request the learned Public Prosecutor Smt.Parvathi has put in her appearance and has stoutly defended the impugned judgment and order of conviction. It is her submission that the evidence of PW1- Nagesh Dattu Kolkar who was an officer deputed to look after the election process had lodged a written information which would definitely carry certain weight and also the evidence of PW2 Rudrappa Basappa Amarapur coupled with the evidence of PW3 Vittal Datta Bandigeni and PW4 Mahesh Babu Sugananavar would clearly indicate existence of materials which was ocular in nature. Since the statement of PW1 was corroborated with the evidence of PW2 and PW3 the case of the prosecution san CD would be proved beyond reasonable doubt. She has also argued that the mahazar which was drawn would indicate the exact 8 Crl.A. No.162/2025 place where the alleged hate speech was delivered which was fully corroborated with the katha extract produced at Ex.P.9. By pointing out the same, the learned Public Prosecutor sought for dismissal of the instant appeal.
7. Secured the trial court records, heard and perused the materials on record. The points that would arise for my consideration are as follows.
(1) Whether the trial court had erred in coming to conclusion that the prosecution had proved its case beyond all reasonable doubt against the accused for the offence punishable under Sec.153 of IPC?
(2) Whether the trial court has erred in coming to the conclusion that the act of the accused would attract the provision of Sec.153 of IPC when he is being acquitted for committing the offence punishable under Sec.125 of R.P.Act?
3) Whether the impugned judgment and order of conviction calls for interference by this court? 9 Crl.A. No.162/2025 (4) What order?
8. My answer to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: As per final order for the following:-
REASONS
9. Point No.1 to 3:- Before adumbrating to the factual aspects of the case, the fact in narrow compass leading to the above case is that a written information came to be filed on 19.4.2018 wherein the flying squad officer PW1 Nagesh Dattu Kolkar had lodged a complaint before the Marihal Police Station stating that on 15.4.2018 at about 8.30 p.m. accused Sanjay Balaso Patil who was contesting for MLA election had delivered a speech without obtaining prior permission from the competent authorities on the terrace of the house of PW5 Basavanth Marihal, Lakshmi Galli, 10 Crl.A. No.162/2025 Sulebhavi, wherein he has alleged to have delivered a speech stating that India is a Hindu nation where Rama was born and they were building a Ram Mandir and others were building Babri Masjid. He has also stated that in order to support Shivaji Maharaj and Sambaji Maharaj one has to vote for BJP and if others want to support Tippu Jayanthi, they can support Congress. The aforesaid speech came to the knowledge of the complainant on the very same day and on 19.4.2018 he had lodged written information, based on which FIR was registered and on culmination of investigation the charge sheet came to be filed.
10. The court has also carefully re-appreciated the entire evidence which has been lead before the Trial court. PW1- Nagesh Dattu Kolkar is the complainant who had deposed about the aforesaid incident as narrated by him in his complaint. It is his contention that he had noticed about the speech which was being telecasted in TV9 news channel on 11 Crl.A. No.162/2025 15.4.2018 and accordingly, he has lodged complaint as per Ex.P.1 on 19.4.2018. He has also deposed that on the next day of lodging the complaint, the concerned police had requested him to visit the house of PW5- Basavanth Marihal and had drawn mahazar. Further, he has deposed that he had received contents of the speech on his whatsapp from one Asgar which he had downloaded to his laptop and copied in CD and had produced the same before the concerned police which was as per Ex.P.2 and the certificate issued under Sec.65-B of Indian Evidence Act was marked as Ex.P.2(a). He has also deposed of giving his further statement as per Ex.P.3. During the course of cross- examination he has categorically admitted that he had not narrated about the place from where he had downloaded the media transcription of speech. He has also admitted of giving further statement before the I.O. wherein he had stated that the speech was not 12 Crl.A. No.162/2025 delivered with an intention to incite enmity between two religions /communities.
11. PW2 Rudrappa Basappa Amarapur is the mahazar witness who has deposed that on 20.4.2015 the concerned police had visited the house of Basavanth Marihal and there he had affixed his signature to Ex.P.4 as witness as per Ex.P.4(a). On the same day he has visited the police between 11.30 A.M to 12 P.M. wherein PW1 had produced CD which was allegedly recovered by drawing mahazar as per Ex.P.5. During the course of cross-examination he has admitted that his house was situated at a distance of about half KM from the house of Basavanth Marihal and he does not know when the meeting was convened or the speech was delivered. He has also admitted that he does not know the contents of the CD and apart from that nothing much was elucidated. 13 Crl.A. No.162/2025
12. PW3 Vittal Datta Bandigeni who is eye witness to the incident has deposed that on 15.4.2018 between 8 to 8.30 p.m. accused Sanjay Balaso Patil had delivered a speech on the terrace of Basavanth Marihal wherein he had stated that that India was a Hindu Nation where Rama was born and they would build a Ram Mandir and others would construct Babri Masjid. He was considered as partly hostile witness and during the course of cross-examination it was suggested to him by the learned APP that the speech delivered by him was to incite violence between two communities, for which he has categorically admitted. During the course of cross-examination it is his evidence that at the time of mahazar there were around 15 persons present and accused was present at the place of incident between 9.15 to 9.30 p.m. and has categorically admitted that he cannot recollect the speeches delivered by the candidate during election, however, it is his evidence that he remembers the 14 Crl.A. No.162/2025 incident since it was telecasted in TV. He has also deposed that since the accused had taken up the name of two communities, he came to a conclusion that it would incite violence.
13. PW4 Mahesh Babu Sugananavar is another eye witness to the incident who has deposed in consonance with the evidence of PW3. Even he was considered as a partly hostile witness and during the course of cross-examination it was suggested to him that the speech delivered by accused was with an intention to cause rioting and incite communal violence, which was also telecasted in TV. He has also admitted of lodging a complaint before the Flying Squad. During the course of cross-examination he has admitted that the house of Basavanth Marihal was situated at a distance of 20 ft., from his house and has also admitted that normally election canvass and speeches would be conducted in ground and not on the terrace. He has also deposed that he had reached 15 Crl.A. No.162/2025 the aforesaid place at about 8.30 p.m. and on looking into the telecast made in TV he came to know that the speech tendered by the accused was with an intention to incite violence.
14. PW5 Basavanth Marihal who is the house owner and has turned hostile and though he was subjected to cross-examination at length nothing was elucidated from him.
15. PW6 R.M.Piradi the ASI has deposed of receiving the complaint as per Ex.P.1 and also report as per Ex.P.6. Further he has deposed of drawing mahazar as per Ex.P4 and P.5 and also sending requisition to the competent authorities to permit him to file final report. However, permission was not accorded and as he was transferred, he had handed over the investigation to CW11. During the course of cross-examination by learned Senior APP the certificate under Sec.65-B of Indian Evidence Act 16 Crl.A. No.162/2025 produced by PW1 was marked as Ex.P.2(a). During the course of cross-examination he has admitted that he had not collected any katha extract nor he had watched the contents of the CD. It is his evidence that PW1 in his complaint had stated of inciting the people to commit rioting and it was mentioned that the said assertion was made by the complainant without applying to its veracity and had given further statement also.
16. PW7 Manjunath is the Investigating Officer who had completed the investigation and had collected katha extract Ex.P.12 and filed charge sheet. During the course of cross-examination nothing much was elicited from him.
Analysis and Appreciation of Evidence:
17. It is relevant to note that in the entire charge sheet the main allegation which has been leveled against the accused Sanjay Balaso Patil is of 17 Crl.A. No.162/2025 delivering speech on 15.4.2018 on the terrace of PW5 Basavanth Marihal wherein he had sought the votes on the premise of constructing a Ram Mandir and also by pointing out to the fact that he is seeking vote for building temple and also protect the legacy of Shivaji Maharaj and Sambaji Maharaj and whereas if the voters cast their vote to other persons, it would support the persons celebrating Tippu Jayanti. With this back ground the court is now required to consider whether the impugned judgment and order of conviction passed by the learned Trial court is justifiable.
18. At the first instance, the allegation which was leveled against the accused person was under
Sec.125 of R.P.Act and also under Sec.153 of IPC. In order to better appreciate the same, the provision under Sec.125 of R.P.Act though for which the accused is acquitted is required to be considered with the provision of Sec.153 of IPC. For the sake of 18 Crl.A. No.162/2025 convenience the aforesaid provisions i.e., sec.125 of R.P.Act and Sec.153 of IPC are extracted which read as follows:
Representation of People Act Sec.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.
Indian Penal Code
Sec.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 such provocation will cause the offence of rioting to be committed, shall, if the 19 Crl.A. No.162/2025 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.
19. What could be gathered from the provisions of Sec.125 of R.P.Act is that:
i) an act should be committed in connection with election;
ii) the act should attempt to promote ill-will on the ground of religion, race, caste, community or language;
iii) causes feeling of enmity or
hatredness between different classes of
citizens of India.
20. Whereas the provision under Sec.153 of IPC would indicate that:
i) an act should be done which is illegal;20 Crl.A. No.162/2025
ii) said illegal act should be done malignantly or wantonly;
iii) the act done shall cause provocation to some person;
iv) the act giving provocation should have been done;
a) intending that the provocation will cause the offence of rioting to be committed;
b) knowing it to be likely that such provocation will cause offence of rioting to be committed.
21. In order to better understand the aforesaid provision, it is also appropriate to look into the words which have been used in the aforesaid provision. The word 'illegal' has been defined under Sec.43 of IPC which reads as "The word "illegal" is applicable to everything which is an offence or which is prohib- ited by law, or which furnishes ground for a civil action;" The expression malignantly implies an act 21 Crl.A. No.162/2025 done with malice and the expression 'wantonly' means that an act done recklessly without regard to the consequences.
22. With these basic postulates the entire materials which is placed before the trial court is required to be re-appreciated. At the cost of repetition, it is noticed that the criminal law was set into motion on the basis of the written information filed by PW1 Nagesh Dattu Kolkar who was the member of Flying Squad wherein he had stated specifically that on 15.4.2018 a speech was delivered by the accused Sanjay Balaso Patil on the terrace of PW5 Basavanth Marihal wherein the accused had stated that the people who want Ram Mandir to be built should vote for BJP and the people who intend support Tippu Jayanti shall vote for Congress. Apart from that he has also allegedly stated that the people supporting Shivaji Maharaj and Sambaji Maharaj should vote for BJP. Now the aforesaid evidence of PW1 is required to be 22 Crl.A. No.162/2025 appreciated with the ingredients required to construe the offence under Sec.153 of IPC. Definitely, uttering a word by taking the name of Shivaji Maharaj or Sambaji Maharaj and soliciting vote in their name would not indicate of any illegal act or an illegal act done malignantly or wantonly. As already defined above a malignant act is the one which is done with malice and wantonly means an act done recklessly without regard to consequences. That apart I have also looked in to the complaint wherein the other part of allegation is leveled wherein it is stated that the country is Hindu nation and wherein they worship Ram and build Ram Mandir. Further, it is stated that the people supporting Tippu Jayanti should vote for Congress. When the entire text is carefully appreciated it no where indicates of malice or an act done wantonly so as to incite people to commit rioting. I have also bestowed my anxious reading to the charge which was framed by the trial court. Though the charge which has been 23 Crl.A. No.162/2025 framed is in sesquipedalian manner, the same does not indicate of committing a rioting.
23. The basic ingredient to attract the rigors of Sec.153 of IPC is to establish that a person had done an illegal act with a malignant intention or wantonly delivered such a statement intending to provoke people to cause rioting or in consequence of the same a rioting had taken place.
24. With this basic material, I have once again re-visited the evidence which was led before the trial court. PW1 is the complainant who in his chief- examination and also in his complaint has stated that the speech was delivered on 15.4.2018 and the same was within his knowledge. Strangely the written information was filed on 19.4.2018 i.e., almost after 4 days of delivering of the speech. Nowhere in the complaint the reason for delay has been explained nor in his chief-examination did he explain about the delay 24 Crl.A. No.162/2025 in filing the complaint. It is also noticed that the second part of his complaint which has been narrated indicates that he came to know about the incident through a video which was circulated on his mobile phone whatsapp group by Mr. Asgar which would point out that an attempt was made to cause rioting for the purpose of elections. Though the said submission seems fashionable, the court requires to consider whether really the offence under Sec.153 is attracted.
25. At the cost of repetition it is already discussed supra every illegal act will not be termed as a punishable one unless the prosecution is able to prove that such an illegal act was conducted with malice. In order to consider the same, I have also looked into the evidence of PW2, PW4 and PW5. PW2 in his is none other than the neighbour of PW5 Basavanth Marihal wherein on his terrace an election canvass had taken place. Strangely, PW5 turned 25 Crl.A. No.162/2025 hostile and apart from suggesting to him about ingredients of the offence, nothing much has been elicited. Even otherwise as per the evidence of PW2 Rudrappa Basappa Amarapur, he has deposed that on 20.4.2015 at about 11.30 to 12 pm when he was working in the police station, CW1 had produced a CD which was recovered by drawing mahazar as per Ex.P.5. Strangely the evidence of other witnesses i.e., PW3 Vittal Datta Bandigeni who is also eye witness to the incident has stated that the accused had given assurance of constructing Ram Mandir and whereas the accused had submitted that the country belongs to Hindus and after election they can inquire him in this regard. Further, he had also alleged to have stated that people who intended to support Shivaji Maharaj and Sambaji Maharaj were to leave the state. The moot which is required to be determined is as to whether the aforesaid sentences would attract the rigors of Sec.153 of IPC. As already discussed supra, the prosecution at 26 Crl.A. No.162/2025 the first instance had not produced any materials that the act committed was illegal one and it was committed with a malignant intention or wantonly for certain period of time. The aforesaid incident itself creates a shallow in the case of prosecution about the manner in which the accused had kept quite / silent on the face of such allegations being leveled. PW3 and PW4 were both considered as partly hostile witness and during the course of their cross examination it was elicited from them that they would file necessary complaint in this regard. However, no such attempt was made by the Investigating Agency.
26. I have also bestowed my anxious reading to the utterances rendered by accused persons allegedly on the fateful day. As per the statement of PW1 Nagesh Dattu Kolkar the news was telecasted on 15.4.2018 in TV9 news channel. However, he had not chosen to lodge the complaint immediately after the incident. PW1 was not a normal rustic villager who does not 27 Crl.A. No.162/2025 know about the nuances of law wherein he would refrain from lodging of a complaint. However, the flying squad and its members are created with specific intention to prevent the illegal activities being committed by the candidates during the course of elections and as such the act of Complainant keeping quiet for more than four days and later on lodging the compliant, on the basis of the news item telecasted about 4 days back seems to be suspicious. Even in the instant case no materials has been produced by the prosecution to indicate that the act of accused can be brought under the rigors of section 153 of IPC, wherein he had made an attempt and gave provocation with knowledge that the same would cause communal rioting and it is likely to be committed. In other words the case of the prosecution itself is now based on the assumptions and presumptions which are not permissible in the eyes of law.
28 Crl.A. No.162/2025
27. As already discussed supra, the complaint came to be lodged on 19.4.2018 i.e., after lapse of more than 4 days and absolutely no reasons are found for filing such belated complaint. For the sake of arguments, if it is accepted the concerned Election Officer was very much busy in some village, then he could have contacted his higher authorities and could have requested their help for doing needful in this regard. Strangely, the prosecution also treats PW3 and PW4 as partly hostile and all that it is suggested to them during the course of cross-examination was that the statement rendered by him would cause rioting. During the course of cross-examination he has admitted that he came to know about the provocative speech only after it was telecasted in TV news channel. If for the sake of argument, the said contention is to be accepted, then once again the prosecution has to explain the reason for delay and what had made them 29 Crl.A. No.162/2025 to believe them the entire version of the complainant without seeking for corroboration.
28. As a matter of fact, in criminal trial the court should always insist for corroborative materials and unless it is supported by some materials to put forth their case, the contentions urged by prosecution cannot be accepted. In the instant case, no such materials has come to picture nor it could be termed as wantonly act or without caring or adhering to the consequences by the accused persons. All the aforesaid aspect would certainly cast a serious doubt over the case of prosecution.
29. With respect to the attracting the provision under Sec.153 of IPC, I have relied upon the judgment of Hon'ble Apex Court reported in (2007) 5 SCC 1 (Manzar Syed Khan Vs. State) wherein it was held as follows:
6. Section 153-A IPC, as extracted here-
inabove, covers a case where a person 30 Crl.A. No.162/2025 by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to pro- mote, disharmony or feelings of enmity, hatred or ill will between different reli- gious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of har- mony or is likely to disturb the public tranquillity. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of peo- ple. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The in- tention has to be judged primarily by the language of the book and the cir-
cumstances in which the book was writ- ten and published. The matter com-
plained of within the ambit of Section 153-A must be read as a whole. One cannot rely on strongly worded and iso- lated 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.
17. In Ramesh v. Union of In-
dia [(1988) 1 SCC 668 : 1988 SCC (Cri) 266 : AIR 1988 SC 775] this Court held that TV serial Tamas did not depict communal tension and violence and the 31 Crl.A. No.162/2025 provisions of Section 153-A IPC would not apply to it. It was also not prejudi- cial to the national integration falling un- der Section 153-B IPC. Approving the ob- servations of Vivian Bose, J. in Bhag-
wati Charan Shukla v. Provincial Govt. [AIR 1947 Nag 1] the Court ob- served that
"the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacil-
lating minds, nor of those who scent danger in every hostile point of view. ... It is the standard of ordinary reasonable man or as they say in English law 'the man on the top of a Clapham omnibus'." (Ramesh case [(1988) 1 SCC 668 : 1988 SCC (Cri) 266 : AIR 1988 SC 775] , SCC p. 676, para 13)
18. Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431 : 1997 SCC (Cri) 1094] it is held that the common feature in both the sec- tions viz. Sections 153-A and 505(2), be- ing promotion of feeling of enmity, ha- tred or ill will "between different" reli- gious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Fur- ther, it was observed that merely incit- ing the feeling of one community or group without any reference to any 32 Crl.A. No.162/2025 other community or group cannot attract either of the two sections.
30. The learned trial court has also contended that though the CD was not established in accordance with law, the ocular evidence would suffice to prove the guilt of the accused person. I have bestowed my anxious reading to the same and at the first instance it indicates that the accused person had tendered certain speech during the canvassing of election which was incitement to people to cause disruption and also cause enmity between 2 communities. Though the said assertion is forthcoming in the complaint and also in the statement of PW3 and 4, it is noticed that they have all categorically admitted at the inception of the case that the accused had not given any such statement. Even otherwise, when the portion of complaint is appreciated, it indicates that the accused Sanjay Balaso Patil has uttered that the people who would support Ram and Ram mandir would cast their 33 Crl.A. No.162/2025 vote for him. Merely taking the name of one community cannot be a ground to presume that it could cause incitement or communal disharmony between two communities. It would be appropriate at this juncture, to rely upon the judgment of Hon'ble Apex Court reported in (2024) 4 SCC 156 (Javed Ahmed Hajam Vs. State of Maharashtra) wherein it has been held as:
7. In Manzar Sayeed Khan [Manzar Sayeed Khan v. State of Maharash-
tra, (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417] , while interpreting Section 153-A, in para 16, this Court held thus : (SCC p. 9) "16. Section 153-AIPC, as extracted hereinabove, covers a case where a person by words, either spoken or written, or by signs or by visible repre- sentations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will be- tween different religious, racial, lan- guage or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquillity. The gist of the offence is the intention to pro- 34 Crl.A. No.162/2025 mote feelings of enmity or hatred be- tween different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-AIPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book and the circumstances in which the book was written and pub-
lished. 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 pas- sages for proving the charge nor in-
deed can one take a sentence here and a sentence there and connect them by a meticulous process of infer- ential reasoning."
(emphasis supplied)
8. This Court in Manzar Sayeed Khan [Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417] referred to the view taken by Vivian Bose, J., as a Judge of the erstwhile Nagpur High Court in Bhagwati Charan Shukla v. Provincial Govt. [Bhagwati Charan Shukla v. Provincial Govt., 1946 SCC OnLine MP 5 : AIR 1947 Nag 1] A Division Bench of the High Court dealt with the offence of sedition under Section 124-AIPC and Section 4(1) of the Press (Emergency Powers) 35 Crl.A. No.162/2025 Act, 1931. The issue was whether a particular article in the press tends, di-
rectly or indirectly, to bring hatred or contempt to the Government estab-
lished in law. This Court has approved this view in its decision in Ramesh v. Union of In-
dia [Ramesh v. Union of India, (1988) 1 SCC 668 : 1988 SCC (Cri) 266] . In the said case, this Court dealt with the issue of applicability of Section 153- AIPC. In para 13, it was held thus :
(Ramesh case [Ramesh v. Union of India, (1988) 1 SCC 668 : 1988 SCC (Cri) 266] , SCC p. 676) "13. ... the effect of the words must be judged from the standards of reason-
able, strong-minded, firm and coura- geous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. ... It is the standard of ordinary reasonable man or as they say in Eng-
lish law 'the man on the top of a Clapham omnibus'. (Bhagwati Charan Shukla case [Bhagwati Charan Shukla v. Provincial Govt., 1946 SCC OnLine MP 5 : AIR 1947 Nag 1] , SCC OnLine MP para 67)"
(emphasis supplied) Therefore, the yardstick laid down by Vivian Bose, J., will have to be applied while judging the effect of the words, spoken or written, in the context of Section 153-AIPC.36 Crl.A. No.162/2025
9. We may also make a useful refer- ence to a decision of this Court in Pa- tricia Mukhim v. State of Megha- laya [Patricia Mukhim v. State of Meghalaya, (2021) 15 SCC 35] . Paras 8 to 10 of the said decision read thus :
(SCC pp. 41-43) "8. 'It is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society.'--
Thomas Jefferson. Freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the in- terest of sovereignty and integrity of India, security of the State, friendly re- lations with foreign States, public or- der, decency or morality or in relation to contempt of Court, defamation or in- citement 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 mainte- nance 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 37 Crl.A. No.162/2025 case is made out against the appellant for committing offences under Sections 153-A and 505(1)(c), it is relevant to re- produce the provisions which are as follows:
***
9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquil-
lity, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to vio- lence is the sine qua non of the offence under Section 153-AIPC and the prose- cution 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 Sec- tion 153-AIPC is the intention to pro- mote feelings of enmity or hatred be- tween 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 Sec- tion 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 sen-
tence here and a sentence there and connect them by a meticulous process 38 Crl.A. No.162/2025 of inferential reasoning [Manzar Say- eed Khan v. State of Maharashtra, (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417] ."
(emphasis in original and supplied)
10. Now, coming back to Section 153- A, clause (a) of sub-section (1) of Sec- tion 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 pro- mote disharmony or feelings of enmity, hatred or ill will between different reli- gious, racial, language or regional groups or castes or communities. The promotion of disharmony, enmity, ha- tred or ill will must be on the grounds of religion, race, place of birth, resi- dence, 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 dif- ferent religious, racial, language or re- gional groups or castes or communities and which disturbs or is likely to dis- turb the public tranquillity.
31. In the aforesaid judgment Hon'ble Apex Court has specifically held that the yardstick which is 39 Crl.A. No.162/2025 required to be looked in to in order to ascertain the rigors of section 153 of IPC is that from the standards of reasonable, strong minded, firm and courageous man and not those of weak and vacillating mind nor of those who scent danger in every hostile point of view. When the aforesaid principles are applied to the case on hand, it indicates that none of the witness had deposed about an act which would incite violence or create hatredness between two communities. As noticed from the records the eye witness to the incident PW3 Vittal Datta Bandigeni and PW4 Mahesh Babu Sugananavar were considered as partly hostile witness. Both of them in their chief-examination have specifically deposed about soliciting vote in the name of constructing Ram Mandir temple at Ayodhya and soliciting vote in the name of Shivaji Maharaj and Sambaji Maharaj. However, they were considered as partly hostile witness and suggestion was made by the learned APP that the speech was made with an 40 Crl.A. No.162/2025 intention to cause rioting and to incite general public. These suggestions itself cannot be considered since it is the cardinal principles of law that entire evidence is required to be considered in its totality. Once again at the cost of repetition it is noticed that both the witnesses have deposed that they came to know about such a hatred speech on the basis of news being telecasted in TV channel. Curiously, both of them were present at the time of alleged speech and they had not thought that it was a speech which would incite communal hatred between two communities. Even otherwise, the complaint was lodged on 19.4.2018 with delay of 4 days and no explanation is forthcoming. As already held by the Hon'ble Apex Court the yard stick should be that of right thinking in the minds of the general public who are strong enough to ascertain the danger and not to act from in vacillating person or as a person who scent danger in every hostile point of view. 41 Crl.A. No.162/2025
32. I have already bestowed my anxious reading to the manner in which CD has been produced. Though the learned Magistrate has not relied upon the CD it seems that in the complaint itself a mention has been made by the complainant of noticing certain incident being telecasted in TV news channel. Further, nothing has been narrated in his complaint at Ex.P.1. However, during the course of his chief-examination he has stated that on the basis of news item being telecasted he had lodged complaint on 19.4.2018. Further, he has deposed in his chief-examination that the said news item was circulated in his whatsapp group by one Asgar which was later on transcript in to a CD and handed over the concerned police. The certificate which was issued under Sec.65B is marked as Ex.p.2(a). In the certificate which has been issued by the complainant it has been narrated that the mobile was being used in the ordinary course of activity and the contents were recorded through the 42 Crl.A. No.162/2025 camera of his mobile. However, at Sl.No.2 a completely a contrary aspect is narrated i.e. by stating that he had received contents on his whatsapp mobile group which was later on transferred in to lap top and transcribed in to CD and accordingly certificate was issued. The learned trial court has rightly rejected the contentions and also the CD which was produced before the court for the reason of non-compliance of Sec.65B of Indian Evidence Act. However, learned trial court has preferred to accept the ocular evidence though none of the witnesses have given any evidence or materials to indicate of accused rendering of speech to incite violence. It is also relevant to note that during the course of cross-examination of complainant he has admitted tendering further statement before the investigating officer wherein he had stated that the speech rendered was not with an intention to create ill- will between two communities. Probably the said further statement was recorded with an intention to 43 Crl.A. No.162/2025 overcome the rigors of Sec.125 of R.P.Act. It is pertinent to note that the said further statement was marked as Ex.P.3 before the trial court.
33. Last but not the least, it is rather curious to note that the learned trial court acquits the accused person for the offence under Sec.125 of R.P.Act and convicts him for the offence under Sec.153 of IPC. When both the provisions are carefully appreciated somewhere the context of both the provisions are quite similar, if not one and the same. Under Sec.125 of R.P.Act the prosecution is required to establish that a person in connection with election promotes or attempts to promote on the ground of religion, race, caste, and feeling of enmity or hatred between two classes of citizens of India. When the different classes of citizens cannot be confused with the people from different religion, race or caste. Further, the provision under Sec.153 of IPC states that an act should be committed in malignant manner and wantonly to 44 Crl.A. No.162/2025 cause incitement and disrupt the public peace and tranquility. In this regard, the court has relied upon the judgment of Hon'ble Apex Court in Manzar Syed Khan supra which would clearly indicate that the act was not committed with an intention to cause any community or ill-will for committing offence of rioting. The alleged provocation did not cause any rioting nor it was construed to be a provocation till 19.4.2018 i.e., till the date of filing of the complaint by the member of flying squad i.e., PW1 Nagesh Dattu Kolkar. All the aforesaid act was not been considered by the learned trial court. In my humble opinion the evidence of ocular evidence does require corroboration, since PW3 and Pw4 were considered as partly hostile. Even at the time of considering them as hostile, it has not been mentioned why they were treated as hostile witness.
34. The court has also considered the fact that the place of alleged delivery of speech itself is in dispute since the owner of the house PW5 Basavanth 45 Crl.A. No.162/2025 Marihal himself has turned hostile and also it is pertinent to note that the recovery of the CD in the presence of the witness also seems to be doubtful since Ex.P.5 recovery mahazar wherein it is narrated that the CD was recovered in the police station, however, during the course of cross-examination PW2 and PW3 have denied of affixing their signature in the police station. All the aforesaid materials would indicate that the prosecution has failed to prove their case beyond reasonable doubt. It is the cardinal principle of law that whenever two views are possible, the view favouring the accused has to be accepted rather than accepting the view favouring the prosecution. In the instant case the when the trial court comes to the conclusion that there are no materials to attract the rigors of Sec.125 of R.P.Act the very same speech would attract the rigors of Sec.153 of IPC seems to be incorrect. If a provocation cannot be tendered by rendering a speech to create disharmony between two 46 Crl.A. No.162/2025 communities, the same cannot be termed as provocation to commit illegal rioting. Under the circumstances, the appeal succeeds and the impugned judgment and order of conviction calls for interference by this court. Accordingly, I answer point No.1 in the Affirmative.
35. Point No.4: In view of my findings on Point No.1 to 3, I proceed to pass the following:
ORDER The Criminal Appeal filed by the appellant/accused under Sec.374(3) of Cr.P.C., is hereby allowed.
Consequently, the judgment
and order of conviction passed by
the XLII Addl. Chief Judicial
Magistrate, Bengaluru in CC
No.5242/2024 dated 20.01.2025 is
hereby set aside and consequently, the appellant / accused Sanjay Balaso Patil is hereby acquitted for 47 Crl.A. No.162/2025 the offence punishable under Sec.153 of IPC.
Office is hereby directed to send back the trial court records along with copy of the Judgment to learned Magistrate forthwith.
(Dictated to the Stenographer Grade-I, the same was transcribed and typed by him, revised and corrected by me and then pronounced in the Open Court on this the 15th day of February, 2025) Digitally signed by SANTHOSHGAJANANABHAT SANTHOSHGAJANANABHAT Date: 2025.02.15 17:19:34 +0530 (Santhosh Gajanan Bhat) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/MLAs in the State of Karnataka)