In a notable exercise of its inherent powers under Section 482 Criminal Procedure Code, 1973, the Gauhati High Court has quashed proceedings against journalist Kongkon Borthakur, absolving him of charges under Section 153A read with Section 34 Indian Penal Code, 1860 (IPC) for a 2016 newspaper article. The Court held that the publication did not meet the statutory threshold for incitement to communal disharmony.
The case arose from an FIR lodged by Farid Islam Hazarika, President of the All Assam Muslim Students Union (Sivasagar), against Kongkon Borthakur, a journalist from Jorhat. The complaint alleged that an article published in Dainik Janambhumi promoted enmity between religious communities by addressing religious fundamentalism, undocumented migration, and militant activities in Assam.
Justice Pranjal Das observed that the FIR failed to disclose the essential ingredients of an offence under Section 153A IPC, which requires deliberate incitement and the involvement of at least two distinct groups. The Court relied on established precedents, including State of Haryana v. Bhajan Lal and Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, to justify quashing proceedings that constitute an abuse of process.
The Court highlighted the central statutory requirement, while clarifying the meaning of Section 153A IPC, "Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony… Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquillity, the law needs to step in… The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed."
Applying these principles, the Court concluded that "It is the core duty of journalism to raise burning issues, which matter to society. Raising concerns about illegal migrants, religious fundamentalism, militant activities and demographic threats to the indigenous people cannot, by itself, be construed as an attempt to create enmity between groups or to incite violence."
Case Title: Kongkon Borthakur Vs. The State of Assam and Anr.
Case No: Case No. : Crl.Pet./988/2016
Coram: Justice Pranjal Das
Advocate for Appellant: Advs. A Neog, K Goswami, P K Goswami, J Gogoi
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