Bombay High Court
Sandeep Arjun Kudale vs State Of Maharashtra on 27 February, 2023
Bench: R.P. Mohite-Dere, P. K. Chavan
Digitally
signed by
SHAGUFTA
SHAGUFTA Q PATHAN
Q PATHAN Date:
2023.02.27 WP-ST-21880 & 21886-2022.doc
13:24:58
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (STAMP) NO. 21880 OF 2022
Sandeep Arjun Kudale,
Age: 42 years, Occ: Business,
R/at : F/7, Priyay, Vibhav CHS,
Near Gandhi Bhavan, Kothrud,
Pune - 411 038 ...Petitioner
Versus
The State of Maharashtra
(Through Public Prosecutor,
High Court, Bombay) ...Respondent
WITH
CRIMINAL WRIT PETITION (STAMP) NO. 21886 OF 2022
Sandeep Arjun Kudale,
Age: 42 years, Occ: Business,
R/at : F/7, Priyay, Vibhav CHS,
Near Gandhi Bhavan, Kothrud,
Pune - 411 038 ...Petitioner
Versus
The State of Maharashtra
(Through Public Prosecutor,
High Court, Bombay) ...Respondent
SQ Pathan 1/36
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Mr. Subodh Desai i/b Mr.Lokesh Zade for the Petitioners
Dr. B.P. Saraf, Advocate General a/w Ms. Aruna Pai, P.P, Mr. D.N.
Salvi, Spl. P.P. and Mr. J.P. Yagnik, A.P.P for the Respondent-State
CORAM : REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 18.01.2023
PRONOUNCED ON : 27.02.2023
JUDGMENT (Per Revati Mohite Dere, J.) :
1 Since the issues/questions involved in both the
aforesaid petitions are similar, they are heard together.
2 Heard learned counsel for the parties.
3 Rule. Rule is made returnable forthwith in both the
aforesaid petitions, with the consent of the parties and is taken
up for final disposal. Learned A.P.P waives notice on behalf of
the respondent-State, in both the petitions.
SQ Pathan 2/36
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4 The petitioner in both the petitions is same. By the
aforesaid writ petitions preferred under Article 226 of the
Constitution of India and under Section 482 of the Code of
Criminal Procedure ('Cr.P.C'), the petitioner in Writ Petition
(Stamp) No. 21880/2022, seeks quashing of the FIR being C.R.
No. 0291/2022 registered with the Kothrud Police Station, Pune,
for the alleged offences punishable under Sections 153A(1)(a),
153A(1)(b) of the Indian Penal Code (`IPC') and in Writ Petition
(Stamp) No. 21886/2022, seeks quashing of the FIR being C.R.
No. 0489/2022 registered with the Warje Malwadi Police Station,
Pune, for the alleged offences punishable under Sections 153A(1)
(a), 153A(1)(b) and 505(2) of the IPC.
5 Mr. Desai, learned counsel for the petitioner
submitted that taking the prosecution case as it stands, no
offences as alleged are disclosed against the petitioner in both the
C.Rs. According to the learned counsel, the FIRs are politically
motivated, lodged with the sole intent of harassing and
SQ Pathan 3/36
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browbeating the petitioner, who is a member of the Congress
Party, from expressing his opinion. He submitted that infact, the
petitioner came to be arrested by the police in one of the C.Rs
and was in police custody for about two days, without any
justification. According to the learned counsel for the petitioner,
the petitioner is a law-abiding citizen, actively involved in social
work. Mr. Desai submitted that the petitioner has been falsely
and malafidely implicated, only because he questioned the
statement of a sitting Cabinet Minister of the State. He submitted
that registration of a crime for criticizing the speech given by a
people's representative, clearly violates the petitioner's
fundamental right to freedom of speech and expression,
guaranteed under the Constitution. He submitted that it is clearly
evident that the FIRs have been registered at the behest of
persons affiliated to the ruling party in the State. According to
the learned counsel, since none of the ingredients of the alleged
offences are made out, registration of the FIRs was unwarranted
and as such the said FIRs be quashed and set-aside.
SQ Pathan 4/36
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6 Mr. Desai, learned counsel for the petitioner relied on
the judgments of the Apex Court in Manzar Sayeed Khan v. State
of Maharashtra & Anr.1, Balwant Singh & Anr. v. State of
Punjab2, Bilal Ahmed Kaloo v. State of Andhra Pradesh 3, Manik
Taneja & Anr. v. State of Karnataka & Anr. 4 and of the Bombay
High Court in Sunaina Holey v. State of Maharashtra5.
7 Dr. Saraf, learned Advocate General opposed the
petitions. He submitted that having regard to the provisions of
law, the sections have been rightly invoked by the police. He
submitted that the video uploaded by the petitioner was likely to
promote enmity between different groups in the society and as
such, to prevent the same, the police took prompt steps in
registering the FIRs, and apprehending the petitioner. He
submitted that it was necessary to do so, to ensure that public
tranquility is not disturbed or likely to be disturbed, having
1 (2007) 5 SCC 1
2 (1995) 3 SCC 214
3 (1997) 7 SCC 431
4 (2015) 7 SCC 423
5 2021 SCC OnLine Bom 1127
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regard to the situation prevailing then. He submitted that no
interference was warranted by this Court, either under its writ
jurisdiction or under its inherent powers.
FACTS :
8 A few facts as are necessary to decide the petitions are
as under :
WRIT PETITION (STAMP) NO. 21880/2022:
8.1 The complainant-Abhishek Ashok Kangane, is a
resident of Kothrud, Pune. According to the complainant, whilst
he was browsing his Twitter account i.e. @kanganebjp, he saw a
video clip uploaded by the petitioner. In the video, the
complainant saw the petitioner, standing near the bungalow gate
of Mr. Chandrakant Patil, Minister of Higher and Technical
Education and Cabinet Minister, Maharashtra State and Palak
Mantri (Guardian Minister), saying something objectionable.
SQ Pathan 6/36
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According to the complainant, the said video clip was uploaded
by the petitioner, on his twitter account i.e. @sandeepkudale, on
10.12.2022 at around 12:33. It is alleged by the complainant
that by uploading the said video, the petitioner had provoked the
feelings/sentiments of the persons belonging to Dr. Ambedkar and
Mahatma Phule's community, and as such had created
disharmony between the communities. The contents of the said
video uploaded by the petitioner on his Twitter account is
reproduced hereunder :
"UkeLdkj] panzdkarnknk ikVykauh ts LVsVesaV dsysya
vkgs] MkW ckcklkgsc vkacsMdj vlrhy vkf.k egkRek tksrhck
Qqys ;kps lanHkkZr dh] fHkd ekxwu "kkGk pkyw dj.ks] vkf.k
gs dj.ks] gs vfr"k; fuanuh; LVsVesaV vkgs] vkf.k eh vkt
dksFk:Me/;s R;kaP;k ?kjktoG ;sÅu jk=h ckjk uarj gk
fu'ks/k O;Dr djrks] vkf.k R;kauh uqlrh ekQh ekxw u;s] rj
MkW ckcklkgsc vkacsMdj vkf.k egkRek QqysP;k iqLrdkaps
okpu djko] vkf.k R;kauh lektklkBh ts ;ksxnku fnysys
vkgs] R;k cnny vkiy l[kksy fparu djko] vkf.k vkEgh
dkWxzsl i{kkph ek.kl vkgksr] uQjr NksMks vkf.k Hkkjr
tksMks okyh t;fgan"
SQ Pathan 7/36
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8.2 Accordingly, the Kothrud Police Station, Pune, on a
complaint made by Abhishek Kangane, registered an FIR vide
C.R. No. 0291/2022, against the petitioner, alleging offences
punishable under Sections 153A(1)(a) and 153A(1)(b) of the IPC,
on 11.12.2022.
WRIT PETITION (STAMP) NO. 21886/2022:
8.3 The complainant-Sunil Babanrao Hingane is a
resident of Warje, Pune. He is an active member of the BJP and a
Social Worker. According to the complainant, Mr. Chandrakant
Patil, Palak Mantri (Guardian Minister) of Pune District had
delivered a speech during his visit at Paithan District, in which,
he had mentioned the names of Dr. Babasaheb Ambedkar,
Mahatma Jyotiba Phule and Karmaveer Bhaurao Patil, in a
context, which was misinterpreted by the petitioner. It is the
complainant's case, that the petitioner had uploaded a video-clip
on social media, in which he made some derogatory remarks
SQ Pathan 8/36
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against the Minister Shri Chandrakant Patil. The contents of the
said video uploaded, are reproduced hereunder:
"panzdkar ikVhy rqeP;k lxG;k fi<;k fodr
?ks.;kph rkdr] m|kstd vl.kk&;k dzkafrlw;Z egkRek
tksrhjko Qqys ;kaP;kr gksrh- rqeP;k lkj[ks fHkdkjM;kauk
ukgh let.kkj Qqys ;kaph rkdn! paikpk tkghj fu'ks/k-"
8.4 It is alleged that the petitioner had made the video
standing outside the Minister's bungalow and had uploaded the
same on social media platforms. It is alleged that the petitioner by
doing so, had created an atmosphere of contempt against
Mr. Chandrakant Patil and a hostile atmosphere amongst the
members of the BJP. It is further alleged that the said post had
promoted enmity between different groups in the society. It is
also alleged that the petitioner had used derogatory words like
"Bhikardya" and "Champa" against the said Minister, which had
resulted in unhappiness amongst the BJP members. Pursuant
thereto, the complainant lodged an FIR with the Warje Malwadi
Police Station, Pune, being C.R. No. 0489/2022, alleging offences
SQ Pathan 9/36
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punishable under Sections 153A(1)(a), 153A(1)(b) and 505(2) of
the IPC, on 11.12.2022.
9 The short question that arises for consideration in
both the aforesaid petitions is, whether offences as alleged under
Sections 153A(1)(a), 153A(1)(b) and 505(2) of the IPC are
disclosed against the petitioner, in both the aforesaid C.Rs ?
10 Before we proceed to decide the same, it would be
apposite to reproduce the relevant sections and the law laid down
by the Apex Court in this regard.
"153A. 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
SQ Pathan 10/36
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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) ...................................."
"505. Statements conducing to public mischief.--
(1) ................
(2) Statements creating or promoting enmity, hatred
or ill-will between classes.--Whoever makes, publishes
or circulates any statement or report containing rumour
or alarming news with intent to create or promote, or
which is likely to create or promote, on grounds of
religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever, feelings
of enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or
communities, shall be punished with imprisonment
which may extend to three years, or with fine, or with
both.
(3) ........................"
SQ Pathan 11/36
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11 In Manzar Sayeed Khan (Supra), the Apex Court was
called upon to consider whether an offence was made out against
the author of a book, Professor James W. Laine (author of the
book titled "Shivaji : Hindu King in Islamic India") and against
the Printer and Publisher of the Book under Sections 153, 153A
r/w 34 of the IPC. The Apex Court, whilst disposing of the
appeals, in para 16, observed as under :
"16. Section 153-A IPC, as extracted
hereinabove, covers a case where a person by words,
either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to
promote, disharmony or feelings of enmity, hatred or
ill-will between different religious, racial, language or
regional groups or castes or communities or acts
prejudicial to the maintenance of harmony or is likely
to disturb the public tranquility. The gist of the offence
is the intention to promote feelings of enmity or
hatred between 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-A of IPC 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
SQ Pathan 12/36
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by the language of the book and the circumstances in
which the book 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. (emphasis supplied)
12 In Balwant Singh (Supra), the Apex Court, whilst
considering the prosecution case as to whether the appellants
therein, by raising slogans in a crowded place, after the
assassination of Smt. Indira Gandhi, the then Prime Minister of
India i.e. "Khalistan Zindabad", etc. had committed an offence
punishable under Sections 124A and 153A of the IPC, observed
in para 9 as under :
"9. Insofar as the offence under Section 153-A IPC is
concerned, it provides for punishment for promoting
enmity between different groups on grounds of
religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever or
brings about disharmony or feeling of hatred or ill-will
between different religious, racial, linguistic or
SQ Pathan 13/36
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regional groups or castes or communities. In our
opinion only where the written or spoken words have
the tendency or intention of creating public disorder
or disturbance of law and order or affect public
tranquility, that the law needs to step in to prevent
such an activity. The facts and circumstances of this
case unmistakably show that there was no disturbance
or semblance of disturbance of law and order or of
public order or peace and tranquility in the area from
where the appellants were apprehended while raising
slogans on account of the activities of the appellants.
The intention to cause disorder or incite people to
violence is the sine qua non of the offence under
Section 153-A IPC and the prosecution has to prove
the existence of mens rea in order to succeed. In this
case, the prosecution has not been able to establish any
mens rea on the part of the appellants, as envisaged by
the provisions of Section 153-A IPC, by their raising
causally the three slogans a couple of times. The
offence under Section 153-A IPC is, therefore, not
made out.
13 In Bilal Ahmed Kaloo (Supra), the Apex Court whilst
considering the prosecution case, whether the appellants therein,
by spreading news that members of the Indian Army were
indulging in commission of atrocities against Kashmiri Muslims
SQ Pathan 14/36
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and whether the same would attract penal consequences under
Sections 153A and 505(2) of the IPC, has in para 15 observed as
under :
"15. The common feature in both sections being
promotion of feeling of enmity, hatred or ill-will
"between different" religious 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. Merely inciting the
feeling of one community or group without any
reference to any other community or group cannot
attract either of the two sections."
14 Similarly, in Manik Taneja (Supra), the Apex Court,
whilst considering whether the appellants therein, by posting
comments on the Bangalore Traffic Police Facebook page,
accusing the Inspector concerned, of his misbehaviour and also
forwarding an email complaining about the harassment meted out
to them at the hands of the Police Inspector, constituted an
offence punishable under Sections 353 and 506 of the IPC,
observed in para 8 as under :
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"8. The legal position is well settled that when a
prosecution at the initial stage is asked to be quashed,
the test to be applied by the Court is as to whether the
uncontroverted allegations as made, prima facie,
establish the offence. It is also for the Court to take into
consideration any special features which appear in a
particular case to consider whether it is expedient and
in the interest of justice to permit the prosecution to
continue. Where, in the opinion of the Court, the
chances of ultimate conviction is bleak and no useful
purpose is likely to be served by allowing a criminal
prosecution to continue, the Court may quash the
proceeding even though it may be at a preliminary
stage."
15 In Amish Devgan v. Union of India & Ors. 6 and
Manik Taneja (Supra), the question before the Apex Court, was
whether the Managing Director of several news channels owned
and operated by TV18 Broadcast Limited, in the debate ('Aar
Paar' on News18 India and 'Takkar' on CNBC Awaaz), by
hosting and anchoring a debate on the enactment which, while
excluding Ayodhya, prohibits conversion and provides for
6 (2021) 1 SCC 1
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maintenance of the religious character of places of worship as it
existed on 15.08.1947. Post the telecast, 7 FIRs were registered
against the petitioner therein in different States. It was alleged
that the petitioner therein had, while hosting the debate,
described Pir Hazrat Moinuddin Chishti, also known as Pir
Hazrat Khwaja Gareeb Nawaz , as "aakrantak Chishti aya...
aakrantak Chishti aya... lootera Chishti aya... uske baad dharam
badle". Translated in English the words spoken would read -
"Terrorist Chishti came. Terrorist Chishti came. Robber Chishti
came - thereafter the religion changed, " imputing that "the Pir
Hazrat Moinuddin Chishti, a terrorist and robber, had by fear
and intimidation coerced Hindus to embrace Islam." It was
alleged that the petitioner had deliberately and intentionally
insulted a Pir or a pious saint belonging to the Muslim
community, revered even by Hindus, and thereby hurt and incited
religious hatred towards Muslims. The Apex Court, whilst
interpreting the statutory provisions, had observed in paras 92 to
98 as under :
SQ Pathan 17/36
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"92. In the present case, we are not concerned
with clause (c) of sub-section (1) of Section 153-A and
hence we would not examine the same. Section 153-A
has been interpreted by this court in Manzar Sayeed
Khan and Balwant Singh and other cases. It would be,
however, important to refer to the legislative history
of this Section as the same was introduced by the
Penal Code (Amendment) Act, 1898 on the
recommendation of the Select Committee. The
Section then enacted had referred to words, spoken
or written, or signs or visible representation or other
means that promote or attempt to promote feeling of
enmity or hatred between different classes of citizens
of India which shall be punished with imprisonment
that may extend to two years or fine or with both.
The explanation to the said Section was as under:
"Explanation.- It does not amount to an
offence within the meaning of this section to
point out without malicious intention and with
an honest view to their removal, matters which
are producing or have a tendency to produce,
feelings of enmity or hatred between different
classes of Her Majesty's subjects."
The original enacted Section was amended with
clauses (a) and (b) by the Criminal Law (Amendment)
Act, 1969 and clause (c) was subsequently inserted by
the Criminal Law (Amendment) Act, 1972.
SQ Pathan 18/36
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93. The Calcutta High Court in P.K. Chakravarty
(1926 SCC OnLine Cal 96 : AIR 1926 Cal 1133) had
delved into the question of intention and had
observed that the intention as to whether or not the
person accused was promoting enmity is to be
collected from the internal evidence of the words
themselves, but this is not to say that other evidence
cannot be looked into. Likewise, while examining the
question of likelihood to promote ill-feelings the facts
and circumstances of that time must be taken into
account. Something must be known of the kind of
people to whom the words are addressed. Words will
be generally decisive, especially in those cases where
the intention is expressly declared if the words used
naturally, clearly or indubitably have such tendency.
Then, such intention can be presumed as it is the
natural result of the words used. However, the words
used and their true meaning are never more than
evidence of intention, and it is the real intention of
the person charged that is the test. The judgment
rejects the concept of constructive intention.
94. Similarly, the Lahore High Court in Devi Sharan
Sharma had observed that intention can be deduced
from internal evidence of the words as well as the
general policy of the paper in which the article
concerned was published, consideration of the person
for whom it was written and the state of feeling
between the two communities involved. In case the
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words used in the article are likely to produce hatred,
they must be presumed to be intended to have that
effect unless the contrary is shown.
95. The Bombay High Court in Gopal Vinayak
Godse has observed that the intention to promote
enmity or hatred is not a necessary ingredient of the
offence. It is enough to show that the language of the
writing is of the nature calculated to promote feelings
of enmity or hatred, for a person must be presumed
to intend the natural consequences of his act.
96. The view expressed by the Bombay High Court
in Gopal Vinayak Godse lays considerable emphasis
on the words itself, but the view expressed in P.K.
Chakravarthy and Devi Sharan Sharma take a much
broader and a wider picture which, in our opinion,
would be the right way to examine whether an
offence under Section 153-A, clauses (1)(a) and (b)
had been committed. The ordinary reasonable
meaning of the matter complained of may be either
the literal meaning of the published matter or what is
implied in that matter or what is inferred from it. A
particular imputation is capable of being conveyed
means and implies it is reasonably so capable and
should not be strained, forced or subjected to utterly
unreasonable interpretation. We would also hold that
deliberate and malicious intent is necessary and can
be gathered from the words itself- satisfying the test
of top of Clapham omnibus, the who factor- person
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making the comment, the targeted and non-targeted
group, the context and occasion factor- the time and
circumstances in which the words or speech was
made, the state of feeling between the two
communities, etc. and the proximate nexus with the
protected harm to cumulatively satiate the test of
"hate speech". "Good faith" and "no legitimate
purpose" test would apply, as they are important in
considering the intent factor.
97. In Balwant Singh this Court had accepted that
mens rea is an essential ingredient of the offence
under Section 153-A and only when the spoken or
written words have the intention of creating public
disorder for disturbance of law and order or affect
public "tranquility", an offence can be said to be
committed. This decision was relied on in Bilal
Ahmed Kaloo v. State of Andhara Pradesh : (1997) 7
SCC 431, while referring to and interpreting sub-
section (2) to Section 505 of the Penal Code.
Similarly, in Manzar Sayeed Khan v. State of
Maharashtra : (2007) 5 SCC 1, the intention to
promote feeling of enmity or hatred between
different classes of people was considered necessary as
Section 153-A requires the intention to cause disorder
or incite the people to violence. The intention has to
be judged primarily by the language of the book and
the circumstances in which the book was written and
published.
SQ Pathan 21/36
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98. In the context of Section 153-A(1)(b) we would
hold that public tranquility, given the nature of the
consequence in the form of punishment of
imprisonment of up to three years, must be read in a
restricted sense synonymous with public order and
safety and not normal law and order issues that do
not endanger the public interest at large. It cannot be
given the widest meaning so as to fall foul of the
requirement of reasonableness which is a
constitutional mandate. Clause (b) of Section 153-
A(1), therefore, has to be read accordingly to satisfy
the constitutional mandate. We would interpret the
words "public tranquility" in clause (b) to mean ordre
publique a French term that means absence of
insurrection, riot, turbulence or crimes of violence
and would also include all acts which will endanger
the security of the State, but not acts which disturb
only serenity, and are covered by the third and widest
circle of law and order. Public order also includes acts
of local significance embracing a variety of conduct
destroying or menacing public order. Public order in
clause (2) of Article 19 nor the statutory provisions
make any distinction between the majority and
minority groups with reference to the population of
the particular area though as we have noted above
this may be of some relevance. When we accept the
principle of local significance, as a sequitur we must
also accept that majority and minority groups could
have, in a given case, reference to a local area."
(emphasis supplied)
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16 Thus, what can be culled out from the aforesaid
judgments is;
(1) It is not an absolute proposition, that one must wait
for investigation to be completed before an FIR can be
quashed under Section 482 Cr.PC, as the same would
depend on the facts and circumstances of each case;
(2) The intention of the accused must be judged on
the basis of the words used by the accused along with the
surrounding circumstances;
(3) The statement in question on the basis of which
the FIR has been registered against the accused must be
judged on the basis of what reasonable and strong minded
persons will think of the statement, and not on the basis of
the views of hypersensitive persons who smell danger in every
hostile point of view;
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(4) In order to constitute an offence under Section
153A of the IPC, two communities must be involved. Merely
inciting the feeling of one community or group without any
reference to any other community or group cannot attract
Section 153A;
(5) The intention to cause disorder or incite people
to violence is the sine qua non of the offence under Section
153A of IPC and prosecution has to prove prima facie the
existence of mens rea on the part of the accused;
(6) An influential person such as "top government
or executive functionary, opposition leader, political or social
leader of following or a credible anchor on a T.V. show"
carries more credibility and has to exercise his right to free
speech with more restraint, as his/her speech will be taken
more seriously than that of a "common person on the street";
SQ Pathan 24/36
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(7) A citizen or even an influential person is under
no obligation to avoid a controversial or sensitive topic. Even
expressing an extreme opinion in a given case does not
amount to hate speech;
(8) The Apex Court has reiterated the test of
imminence in Amish Devgan's case by holding that the
likelihood of harm arising out of the accused's speech must
not be remote, conjectural or far-fetched.
17 Having considered the provisions of law as applied in
both the cases, the judgments of the Apex Court in this regard,
what is stated hereinabove, and having perused both the FIRs,
we are of the considered view that no offences as alleged are
made out against the petitioner, for the reasons set-out
hereinunder;
REASONS :
18 A perusal of the contents of the videos uploaded by
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the petitioner on social media, which have been reproduced by
us, hereinabove, whilst setting out the facts, show that even if we
take the contents of the video as it stands, no offences as alleged
are made out against the petitioner, in both the aforesaid
petitions. By no stretch of imagination, can it be said, that by the
said words, the petitioner, even remotely promoted or attempted
to promote, on the grounds of religion, race, place of birth,
residence, language, caste or community or on any other ground
whatsoever, disharmony or feelings of enmity, hatred or ill-will
between different religions, racial, language or regional groups of
caste and communities. Nor can it be said that the petitioner by
the said utterances, committed any act prejudicial to the
maintenance of harmony between different religions, racial,
language or regional groups or castes or communities, which
would disturb or likely to disturb public tranquility. Although,
the learned Advocate General attempted to bring the act of the
petitioner, in particular, under Section 153A(1)(b) i.e. that the act
of the petitioner was likely to disturb public tranquility,
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warranting action by the police, we are afraid, we cannot accede
to the said submission. The term "public tranquility" refers to
public peace and therefore, any activity carried out by a group of
individuals which results in disruption of peace in the society, is
referred to as an offence against public tranquility. The IPC
identifies offences against public tranquility, which have been
spread over from Sections 141 to 160 of the IPC. Offences
against public tranquility could be unlawful assembly, rioting,
assembly of five or more people when dispersion has been
ordered, affray, and promoting enmity between different classes
of people. Admittedly, there was no unlawful assembly, rioting,
affray, etc. It appears from the FIRs that the petitioner went near
the residence of the Minister and took a video of himself outside
the gate and made the comments as reproduced hereinabove, and
thereafter, uploaded the same on social media. The gist of the
offence of Section 153A, is the intention to promote feelings of
enemity/hatred between different classes of people. The intention
to cause disorder or incite the people to violence is the sine qua
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non of the offence and the prosecution has to prima facie show
the existence of mens rea on the part of the accused. The same is
clearly wanting in both the cases.
19 Article 19 of the Constitution of India guarantees to
every citizen a valuable fundamental right i.e. right to freedom of
speech and expression. No doubt, the said freedom is not
absolute and is subject to reasonable restrictions. The
safeguards, as spelt out in Article 19(2) reads thus :
"19. Protection of certain rights regarding
freedom of speech, etc.-
(1) .......
(2) Nothing in sub clause (a) of clause (1) shall
affect the operation of any existing law, or prevent the
State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests
of the sovereignty and integrity of India, the security
of the State, friendly relations with Foreign States,
public order, decency or morality or in relation to
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contempt of court, defamation or incitement to an
offence."
20 The contents of the video if read in its entirety and in
the background in which the same were made, does not show that
the petitioner, an ordinary citizen, affiliated to a political party,
had any malafide intention or the requisite mens rea necessary to
constitute the alleged offences; nor does it appear, that it was the
petitioner's intention to promote hatred or enmity, much less to
disturb public tranquility or to create law and order issues. The
context and genesis in which the petitioner made the comments,
cannot be lightly brushed aside nor ignored. The comments
would have to be weighed and considered in the context of what
provoked the petitioner to make the said comments. It appears
that the petitioner made the said comments pursuant to the
alleged derogatory comments made by the Minister on a public
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platform with respect to Dr. Babasaheb Ambedkar, Mahatma
Jyotiba Phule and Karmaveer Bhaurao Patil. The petitioner had
only expressed his opinion, his dissent, and condemned what was
stated by the Minister. The said comments expressed by the
petitioner, were clearly his opinion/criticism of the Minister's
speech, registering his protest to the same and by no stretch of
imagination, can be said to be an act intended to cause disorder
or to incite people to violence, which is a sine qua non to
constitute an offence under Section 153A of the IPC. It cannot
be said to be an act, spreading hatred or venom, warranting the
petitioner's prosecution, merely because the police apprehended
breach of public tranquility or a law and order situation, as urged
by the learned Advocate General. The facts did not warrant
slapping of the aforesaid Sections on these flimsy grounds. The
language i.e. one of the words used by the petitioner in one of the
videos, at the highest, can be said to be distasteful, but certainly
not warranting registration of the FIR, much less, petitioner's
arrest. It is the duty of the police to maintain law and order and
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the same cannot be done by invoking Section 153A so lightly, on
the pretext, on which, it is done. The act of the petitioner was a
non-violent act. It was a peaceful demonstration made by him
alone, without taking out any procession or holding banners or
arranging a public meeting. Neither did it incite violence or
hatred.
21 The Constitution of India guarantees several
fundamental rights to its citizens and one of the rights conferred,
is, the right to freedom of speech and expression under Article
19(1)(a) of the Constitution. The said right to freedom of speech
and expression enables a person to express his or her opinions
freely, subject to reasonable restrictions, as spelt out in the very
Article. This right guaranteed to all its citizens, is a valuable right
and is the backbone of a healthy and vibrant democracy. In a
way, it enshrines the principle of "liberty of thought and
expression" given in the Preamble. The petitioner, as revealed
from the contents of the FIR, had only expressed his
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views/opinion/dissent, pursuant to what the Minister said. The
act of the petitioner was well within his right to express his
opinion, as guaranteed by the Constitution. Merely because the
petitioner's comments hurt the complainant's sensibilities, was
not a ground for the police to register the FIRs, much less arrest
him.
22 It is pertinent to note that the petitioner was arrested
in C.R. No. 0291/2022 and was in custody for two days, despite
prima facie, no offence, being disclosed against the petitioner.
The police, before arresting, must first apply their mind, as to
whether any offence is made out or not, as an arrest visits serious
consequences on the person arrested. The offences alleged have
serious connotations/ramification and the police have to be
mindful of the same. Invocation of the said sections has serious
repercussions not only on that person's life, but also his family
life, causes incalculable harm to one's reputation and even career.
It cannot and must not be lightly invoked. Prima-facie, it appears
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to us that the petitioner was slapped with the said sections,
without any application of mind, when on the face of it, no such
offence was made out against the petitioner.
23 Law cannot be used as a tool or as an instrument of
oppression, by registering FIRs, to harrass people by
preventing/intimidating them, from expressing their
views/opinions/dissent, which the Constitution of India,
guarantees to them. The right to express one's views is a
protected and cherished right in our democracy and cannot be
taken away by imposition of Section 153A of the IPC and by
arresting a person as done in the present case. Section 153A
cannot be resorted to silence people from expressing their
views/opinions/dissent, so long as Article 19(2) is not violated.
Cases under Section 153A are on the rise and the onus is on the
police/State to ensure that the said provision is not misused by
anyone, much less, political parties.
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24 Considering what is observed hereinabove, the case of
the petitioner would squarely be covered by clause (1) of para
102 of the decision of the Apex Court in the case of State of
Haryana and Others Vs. Bhajan Lal and Others 7. The same reads
thus :
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the
Code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima
facie constitute any offence or make out a
case against the accused."
7 1992 Supp (1) Supreme Court Cases 335
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25 The petitions are accordingly allowed and the FIRs
bearing C.R. No. 0291/2022 registered with the Kothrud Police
Station, Pune, for the alleged offences punishable under Sections
153A(1)(a) and 153A(1)(b) of the IPC and C.R. No. 0489/2022
registered with the Warje Malwadi Police Station, Pune, for the
alleged offences punishable under Sections 153A(1)(a), 153A(1)
(b) and 505(2) of the IPC, are quashed and set-aside.
26 Rule is made absolute in the aforesaid terms.
Petitions are disposed of accordingly.
27 Having regard to the peculiar facts of this case, we
deem it appropriate to direct the State Government to pay costs
of Rs.25,000/- to the petitioner, for his unjustified arrest in C.R.
No. 0291/2022 registered with the Kothrud Police Station, Pune,
having regard to what is observed hereinabove. The said costs
shall be recovered from the salary of the person/persons
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responsible for registration of the said FIR. Costs to be paid to
the petitioner within four weeks from the uploading of this order.
28 Stand over to 30.03.2023, for recording compliance
of the payment of costs.
29 All concerned to act on the authenticated copy of this
order.
PRITHVIRAJ K. CHAVAN, J. REVATI MOHITE DERE, J.
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