Bombay High Court
Naresh Prabhuappa Halge vs The State Of Maharashtra on 10 March, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
aba-524-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.524 OF 2021
NARESH S/O PRABHUAPPA HALGE
VERSUS
THE STATE OF MAHARASHTRA
...
Mr. M. S. Bhosale, Advocate for applicant.
Mr. N. T. Bhagat, APP for the respondent - State.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 08.02.2022
Pronounced on : 10.03.2022
ORDER :-
. The applicant is apprehending his arrest in connection with Crime No.34 of 2021 registered with Parali V. City Police Station, Tq. Parali Dist. Beed for the offences punishable under Sections 153A, 505(2) of Indian Penal Code.
2. Heard learned Advocate Mr. M. S. Bhosale for the applicant and learned APP Mr. N. T. Bhagat for the respondent - State.
3. It has been vehemently submitted on behalf of the applicant that the applicant has been falsely involved with political motive. He is innocent. Perusal of the FIR would show that none of the ingredients of Section 153A, 505(2) of Indian Penal Code have been made out. There (1) ::: Uploaded on - 10/03/2022 ::: Downloaded on - 11/03/2022 10:35:24 ::: aba-524-2021.odt is no question of recovery or discovery at the hands of the present applicant. There was no intention on the part of the applicant in promoting enmity between caste and religion. The applicant has not published and circulated any statement with any such intention. Both the Sections are punishable with three years of imprisonment and, therefore, ratio laid down in Arnesh Kumar Vs. State of Bihar and others, [(2014) 8 SCC 273] would be attracted. Yet, his application before the learned Additional Sessions Judge came to be rejected and, therefore, he is before this Court. The applicant is ready to abide by the terms of the bail.
4. Learned APP strongly opposes the application and submitted that the applicant had made hate statements against Swatantraveer Vinayak Damodar Savarkar on his Facebook post. He had created a cartoon and written "SORRY" and "lkxjk izk.k EkGeGyk". The informant has also stated that there were other many such posts. Definitely, his intention is to create enmity between two castes and religion. His custodial interrogation is necessary.
5. The purpose for which Section 153A is to prevent racial and sectarian quarrels entailing the disturbance of public peace. The Legislature contemplates that the words spoken or written, which do promote hatred, etc., would create sufficient mischief so as to fall within (2) ::: Uploaded on - 10/03/2022 ::: Downloaded on - 11/03/2022 10:35:24 ::: aba-524-2021.odt the scope of the section, and that it is not necessary for the prosecution further to establish that the writer had the intention to promote such hatred. In order to attract offence under Section 153-A(a) there should be promotion of enmity and hatred between different communities or groups. In other words, the intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A of Indian Penal Code and the prosecution has to prove prima facie the existence of mens rea on the part of accused. Merely inciting the feelings of one group without any reference to the other will not attract the provisions of either Section 153A or Section 505 of Indian Penal Code. Definitely, liberty to criticize does not necessarily mean license to use abusive language, but then it is required to be seen as to whether the contents of the FIR prima facie give this kind of picture.
6. FIR has been lodged by one Sanjay Sakharam Kukde, who is stated to be a labour and social worker by occupation. He has a Facebook account and it is stated that around 10.00 a.m. on 26.02.2021, he had logged in and so that the applicant had posted some photographs on the day of death anniversary of Late Satantraveer Savarkar. It was a cartoon of Swatantraveer Savarkar and what was written was "SORRY" and "lkxjk izk.k EkGeGyk". Thereafter, the informant went on the Facebook wall of the applicant and he states that there were many such (3) ::: Uploaded on - 10/03/2022 ::: Downloaded on - 11/03/2022 10:35:24 ::: aba-524-2021.odt things posted which would defame Late Shri. Swatantraveer Savarkar. He then states that he had given phone call to his friends and they had also seen the said post. Informant had taken the screenshot of the said post and according to him that Facebook post by the applicant was to defame Swatantraveer Savarkar and to create hatred in two castes. The police papers contain the copy of the said post and also other two posts. The first post says "o"kZHkj dsysY;k 'ksdMks iksLVeqGs eu nq[kkoya vlsy rj ekQh ekxkoh- vla okVr vlsy rj rqepa rqEgh c?kk- ekQh ekxk;yk uk eh lkojdj vkgs uk vuZc xksLokeh". The other post gives picture of 10 freedom fighters and two persons holding bow and arrow pointing towards the freedom fighters' character, which is in the form of Ravana and then it is stated that "jko.kkoj /kuq";ck.k pkyo.kkÚ;k O;Drh fo- nk- lkojdj o ';kekizlkn eq[kthZ ¼T;kaph vkt iq.;frFkh vkgs½ vkgsr- jko.kkpk ifgyk psgjk vkgs dkWaxzslps ljnkj---". The further line is not complete. At this stage, it is not possible to arrive at a conclusion that what the applicant intended to convey by these posts. Further, the statements of witnesses recorded as well as the FIR only states that whatever they had seen amounted to defame and hatred, but whether they had understood it completely as to what the applicant intended to say is a question.
7. We will have to consider provisions of Section 196 of the Code of Criminal Procedure, which provides for prosecution for offences against (4) ::: Uploaded on - 10/03/2022 ::: Downloaded on - 11/03/2022 10:35:24 ::: aba-524-2021.odt the State and for criminal conspiracy to commit such offence. Sub- Section (1)(a) of Section 196 of the Code of Criminal Procedure states that no Court shall take cognizance of any offence punishable under Chapter VI or Section 153A, Section 295-A or sub section (1) of Section 505 of Indian Penal Code except with the previous sanction of the Central Government or of the State Government. Therefore, when the sanction to prosecute is mandatory and the prosecution has not produced on record that correspondence is made or actually the State has granted sanction to prosecute the applicant, question of his arrest will not come. It cannot be imagined that the investigating agency would arrest such accused, complete the investigation and then would take up the steps for sanction. In fact, it should be simultaneous. The personal liberty of person cannot be so curtailed in anticipation that such sanction would be granted. The physical custody of the applicant is not required and further, the ratio laid down in Arnesh Kumar (Supra) would be applicable and, therefore, the interim protection granted earlier deserves to be confirmed.
8. The interim protection was granted by this Court on 28.05.2021, but it appears that in the meantime, the matter was not taken on board, may be due to pandemic situation or Standard Operating Procedure. So also, on certain occasions, there was order by the Hon'ble Supreme (5) ::: Uploaded on - 10/03/2022 ::: Downloaded on - 11/03/2022 10:35:24 ::: aba-524-2021.odt Court as well as High Powered Committee for extension of interim protection. But, then the investigating officer says that though the applicant was directed to appear before the investigating officer as and when required for the investigation purpose, he has not attended. The investigating officer has not produced on record any such communication made by him to the applicant asking him to remain present before him on a particular date and then the applicant has not come. Therefore, in this circumstance, the interim protection granted earlier by this Court deserves to be confirmed. Hence, the following order :-
ORDER I) The application stands allowed.
II) The ad-interim protection granted earlier by this Court vide order dated 28.05.2021 stands confirmed and made absolute. In other words, in the event of arrest of the applicant - Naresh s/o Prabhuappa Halge, in connection with Crime No.34 of 2021 registered with Parali V. City Police Station, Tq. Parali, Dist. Beed for the offences punishable under Sections 153A, 505(2) of Indian Penal Code, he be released on P. R. Bond of Rs.15,000/- with surety in the like amount, if not already released.
III) The applicant shall appear before the Investigating Officer, as and when required for the investigating purpose.(6) ::: Uploaded on - 10/03/2022 ::: Downloaded on - 11/03/2022 10:35:24 :::
aba-524-2021.odt IV) He shall not tamper with the evidence of the prosecution, in any manner.
V) He shall not indulge in any criminal activity.
[SMT. VIBHA KANKANWADI, J.]
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