Karnataka High Court

Sri Shravan Kumar Raikar vs State Of Karnataka on 5 December, 2023

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 5TH DAY OF DECEMBER, 2023

                       BEFORE

        THE HON'BLE MR. JUSTICE R.NATARAJ

        CRIMINAL PETITION NO.1532 OF 2019
                      C/W
        CRIMINAL PETITION NO.692 OF 2019

IN CRL.P.NO.1532/2019:

BETWEEN:

SRI. PRANAVANANDA RAMA SWAMIJI
S/O NARAYANA NANBIAR,
AGED ABOUT 33 YEARS,
R/AT BASAVESHWARA MATA,
AREMALAPURA VILLAGE,
RANI BANNUR, HAVERI DISTRICT-581 115
                                        ...PETITIONER
(BY SRI. DHARMAPAL, ADVOCATE)

AND:

1.   STATE OF KARNATAKA
     BY THE INSPECTOR OF POLICE,
     MANGALORE NORTH POLICE STATION,
     PIN-574141
     REPT. BY SPP,
     HIGH COURT OF KARNATAKA,
     AT BANGALORE-01

2.   SRI. SURESH BHAT
     SHANTIGAGI SANGATANEGALA OKKUTA,
     KARNATAKA KOMU SOUHARDA VEDIKE,
     B.H. BANGERA HALL,
     BEHIND RTO POLICE LINE,
     PANDESHWARA,
                              2


     MANGALORE CITY-574141
                                        ...RESPONDENTS

(BY SRI. RAJATH SUBRAMANYAM, HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NO.1;
SRI. CLIFTON D'ROZARIO, ADVOCATE FOR RESPONDENT NO.2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO
SET ASIDE THE ORDER OF ISSUING SUMMONS BY TAKING
COGNIZANCE DATED 24.05.2014 AND TO QUASH THE ENTIRE
CHARGE SHEET SUBMITTED AGAINST THE PETITIONER BY THE
1st RESPONDENT POLICE ON THE BASIS OF A COMPLAINT
LODGED BY THE 2nd RESPONDENT DATED 24.09.2013 IN SPLIT
UP   DATED    22.05.2017    IN  C.C.NO.1647/2017  (MAIN
C.C.NO.1515/2014) FOR THE ALLEGED OFFENCE PUNISHABLE
UNDER SECTIONS 153A, 501B, 109 OF IPC WHICH IS PENDING
ON THE FILE OF THE II-JMFC, MANGALORE.

IN CRL.P.NO.692/2019:

BETWEEN:

1.   SRI. SHRAVAN KUMAR RAIKAR
     S/O RAM RAO RAIKAR,
     AGED ABOUT 62 YEARS,
     VEERA SAVARKAR ROAD,
     GANGAVATHI,
     KOPPAL DISTRICT-583227

     NOW PRESENTLY:
     R/AT SILVER HOUSE, MAIN ROAD,
     GANGAVATHI, KOPPAL DISTRICT
     PIN-583227.

2.   SRI HARISH ACHARYA
     S/O LATE A.K. GANGADHAR,
     AGED ABOUT 59 YEARS,
     VINAYA VINAYAKA JEWELRY,
     MALAKA, NO.65, CONVENT ROAD,
     NEAR MUTHAPPA TEMPLE, MADIKERI,
                             3


     KODAGU DISTRICT-571201.

     NOW PRESENTLY:
     R/AT 13/12/1, GOWLI STREET,
     MADIKRI, KODAGU DISTRICT,
     PIN-571201
                                          ...PETITIONERS
(BY SRI. DHARMAPAL, ADVOCATE)

AND:

1.   STATE OF KARNATAKA
     BY THE INSPECTOR OF POLICE,
     MANGALORE NORTH POLICE STATION,
     PIN-574141
     REPT. BY SPP,
     HIGH COURT OF KARNATAKA,
     AT BANGALORE -01.

2.   SRI. SURESH BHAT
     SHANTIGAGI SANGATANEGALA OKKUTA,
     KARNATAKA KOMU SOUHARDA VEDIKE,
     B.H.BANGERA HALL,
     BEHIND RTO POLICE LINE,
     PANDESHWARA, MANGALORE CITY,
     PIN-574141.
                                        ...RESPONDENTS

(BY SRI. RAJATH SUBRAMANYAM, HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NO.1;
SRI. MAITREYI KRISHNA, ADVOCATE FOR RESPONDENT NO.2)

      THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE
OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE
ORDER OF ISSUING SUMMONS BY TAKING COGNIZANCE
DATED 24.05.2014 AND TO QUASH THE ENTIRE CHARGE SHEET
SUBMITTED AGAINST THE PETITIONERS BY THE 1ST
RESPONDENT POLICE ON THE BASIS OF A COMPLAINT LODGED
BY   THE   2ND    RESPONDENT     DATED   24.09.2013, IN
C.C.NO.1515/2014 FOR THE ALLEGED OFFENCE PUNISHABLE
                             4


UNDER SECTIONS 153A, 501B AND 109 OF IPC WHICH IS
PENDING ON THE FILE OF J.M.F.C.(II COURT), MANGALURU.

     THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 28.08.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-

                        ORDER

The petitioner (accused No.1) in Crl.P.No.1532/2019

has challenged the prosecution launched against him in

split up C.C.No.1647/2017 pending trial before the JMFC -

II Court at Mangaluru (henceforth referred to as 'Trial

Court') and the order dated 24.05.2014 taking cognizance

of the offences punishable under Sections 153A, 501B, 109

of IPC.

2. Crl.P.No.692/2019 is filed to quash the

prosecution launched against the petitioners, who were

arraigned as accused Nos.2 and 6 in C.C.No.1515/2014

pending trial before the Trial Court for the offences

punishable under Section 153A, 501B, 109 of IPC.

3. The respondent No.1 registered Crime

No.194/2013 against the petitioners and others on the

basis of information provided by the respondent No.2 on

23.09.2013, that on 15.09.2013, a press conference was

held at Woodlands Hotel, where the accused claimed that

the fighting sprit amongst youth to protect cows, women

was waning and therefore, to promote valour of a

Kshatriya amongst them, 5000 youth would be

administered oath by a sword on 25.10.2013. It was also

stated that the youth would be instilled courage to fight on

the street. The respondent No.2 alleged that this

amounted to taking law into hands and to incite violence

by distributing prohibited weapons and thereby, divide the

society on communal lines. He alleged that this was a

concerted effort to promote communal violence. He

claimed that the press conference was published in the

newspapers and telecast on television. He alleged that this

was a criminal offence and therefore, requested

respondent No.1 to take suitable action. The respondent

No.1 registered Crime No.194/2013 for the offence

punishable under Section 153A of IPC and took up

investigation and filed a charge-sheet for the offences

punishable under Sections 153A, 501(1)(B), 109 of IPC.

The Trial Court took cognizance of the offences and

registered C.C.No.1515/2014.

4. The petitioner in Crl.P.No.1532/2019 was

arraigned as accused No.1 and as he could not be secured,

the case against him was split-up and C.C.No.1647/2017

was registered against him.

5. Being aggrieved by the order taking

cognizance and the proceedings initiated against them, the

petitioners have filed these petitions.

6. The learned counsel for the petitioners

contended that a bare perusal of the complaint lodged

would indicate beyond doubt that an offence under

Sections 153A, 505(1)(b) and Section 109 of IPC is not

made out. He submitted that the respondent No.2 could

not allege that the petitioners promoted enmity between

groups or religion and promoted any feelings of enmity,

hatred or ill-will or any acts prejudicial to the maintenance

of communal harmony. He therefore, contended that the

prosecution launched against them is a clear misuse and

abuse of process of law. He contended that an offence

under Section 505(1)(b) of IPC is also not attracted. He

contended that a sword is only a symbol of valour, which is

carried by Nepali Gurkhas and Sikhs, which is held to be

not harmful to any community or religion. Therefore, he

contended that Section 153A of IPC is not attracted.

7. Per contra, learned counsel for respondent

No.2 submits that the offence committed by the petitioners

is grave and severe, where the investigating officer has

filed a charge-sheet and therefore, this Court should not

exercise jurisdiction to quash the prosecution, when there

is no illegality. He relied upon the judgments of the

Hon'ble Apex Court in the case of Neeharika

Infrastructure Private Limited vs. State of

Maharashtra and others [AIR Online 2021 SC 192]

and Central Bureau of Investigation vs Aryan Singh

and others [AIR 2023 SC 1987]. He submitted that in

similar circumstances, in the case of Mohammed Shariff

vs. State of Karnataka and Others

[Crl.P.No.3786/2020], a Coordinate Bench of this Court

held that on a close reading of Section 153A of IPC,

accused must be making the statement with an intention

and the said statement must provoke or promote feeling of

enmity, hatred or ill-will between different religious or

racial or other language or regional groups or castes. He

contended that whenever there was a discreet reference to

particular group by innuendo, the question whether the

person had an intention to incite a group or not, is a

matter which has to be considered only at the time of trial.

He therefore, contended that a perusal of the press

statement and the consequent conduct of the petitioners

disclosed beyond doubt that it was to incite the youth to

take up arms against another group. He further contended

that the Hon'ble Apex Court in the case of Tehseen S.

Poonawala vs. Union of India and others [AIR 2018

SC 3354], while considering the incidents of lynching and

mob violence by cow vigilante group, had issued many

preventive, remedial and punitive measures and therefore,

he submitted that this Court should not turn a blind eye to

consequences that may erupt due to provocative speeches

by persons such as the petitioners. He also referred to a

judgment of the Hon'ble Apex Court in the case of

Shaheen Abdulla vs. Union of India [W.P.(C)

No.940/2022], where the police were directed to register

suo moto case against the offenders, who commit offences

punishable under Sections 153A, 153B, 295A and 505 of

IPC. The learned counsel contended that the Hon'ble Apex

Court directed that action shall be initiated against any

person irrespective of the religion that he belongs to, so

that the secular character of Bharat as is envisaged by the

preamble of the Constitution of India is preserved and

protected. He also referred to another judgment of the

Hon'ble Apex Court in the case of Ashwini Kumar

Upadhyay vs. Union of India [W.P.(C) No.943/2021],

where the Hon'ble Apex Court had directed that suo moto

action shall be initiated to register cases, even if no

complaint is forthcoming and proceed against the

offenders who commit offences under Sections 153A,

153B, 295A and 505 of IPC. The learned counsel therefore,

submits that allowing persons such as the petitioners to

incite the public to take up arms, is a clear indication that

the petitioners have exhorted the youth to take up arms

against another religion. Thus, he contends that the

petitioners are bound to face the trial.

8. The learned High Court Government Pleader

supported the contention of the learned counsel for

respondent No.2 and contended that the press conference

held by the petitioners at Woodlands Hotel on 15.09.2013

was with a clear intention to incite the youth against

another community and therefore, the petitioners are

bound to establish their innocence by facing the trial.

9. I have considered the submissions made by

the learned counsel for the petitioners as well as the

learned counsel for the respondent No.2 and learned High

Court Government Pleader.

10. A perusal of the press release dated

16.09.2013 shows that the Akhila Bharata Hindu

Mahasabha had proposed to organize "Khadga Deekshe"

(oath by sword) Programme for over 5,000 Hindu youth on

October 25th in Mangalore. The purpose of the "Deekshe"

was to prevent attacks on the Hindu religion. The

petitioner in Crl.P.No.1532/2019 addressed the press meet

and claimed that the Deekshe will instill valour to fight for

the cause of religion and standing against various injustice

and attacks that are waged against the religion. He said

that the Government is unable to protect the Hindu

religion, culture and tradition and that Hindu Mahasabha

would teach a lesson to the miscreants targeting it.

11. The statements of witnesses recorded by the

investigating officer show that none of them had attended

the press conference and there were no video or

photographs of the press conference but their statements

were all hearsay. All the witnesses have claimed that the

press conference was designed to incite violence by arming

the youth with swords. However, there is no material

collected by the investigating officer about the distribution

of swords at the press conference and no swords were

seized.

12. Be that as it may, even if the press release is

perused, it is claimed that the intention of the programme

was to instill a sense of pride and to fight for the cause of

religion and stand against various injustice and attacks

that are being waged against the religion. Though by

innuendo it could be held that the petitioners were

referring to threat on the Hindu religion by other

communities, there is no specific reference to any group or

religion in the press release. In this regard, it is profitable

to refer to the judgment of the Hon'ble Apex Court in Bilal

Ahmed Kaloo vs. State of A.P. [(1997) 7 SCC 431],

wherein the Hon'ble Apex Court held as follows:-

"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."

13. The Hon'ble Apex Court further held,

"The common ingredient in both the offences is promoting feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes or communities. Section 153-A covers a case where a person by "words, either spoken or written, or by signs or by visible representations" promotes or attempts to promote such feeling. Under Section 505(2), promotion of such feelings should have been done by making and publishing or circulating any statement or report containing rumour or alarming news."

14. A Coordinate Bench of this Court in the case of

Mohammed Ataulla A and others vs. State of

Karnataka and another [2020 SCC Online Kar 1682],

in similar circumstances held,

"10. Coming to the offence alleged under section 153A IPC, is concerned, law is now well settled that in order to bring an action under the said section, the acts alleged against the accused must be intended to promote feelings of enmity, hatred or ill-will between different religious, racial, language or religious groups, or castes or communities. As held by the Hon'ble Supreme Court in Bilal Ahmed's case referred above, in order to constitute the ingredient of said offence, it is necessary that atleast two such groups or communities should be involved. Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract either of the offence under section 153A of IPC.

11. In the instant case, there are no allegations whatsoever that the petitioners have committed any acts with intent to promote feelings of hatred between different religious groups, rather, the very basis of the allegations is that the petitioners were behaving in such a manner that on seeing them, Hindus should get

frightened and should run away from the village. This is the imagination or mere assumption of the complainant and not the actual commission of act by anyone of the petitioners. As a result, even the basic ingredient of the offence under section 153A IPC is not satisfied so as to proceed with the investigation against the petitioners."

15. CWs.4, 5, 6, 7, 8 and 9 are cited as

eyewitnesses in the charge-sheet. All of them in one voice

claimed that accused No.1 had proposed to administer

oath to 5000 youth to stop cow slaughter and protect

women and Hindu religion. However, all of them claimed

that they were not in possession of the video clipping or

photos of the press meet addressed by accused No.1. No

one has spoken whether 5000 youth were administered

oath and if yes, who had participated and whether there

was any justification not to prosecute them. There is no

reference to any rival group or to any religion. There is no

reference to inducement to commit any offence against the

State or to the public tranquility. Thus, it is difficult to

accept that the petitioners were involved in the

commission of offences punishable under Section 153A or

505(1)(b) or 109 of IPC. It is apposite to refer to the

judgment of the Hon'ble Apex Court in Manzar Sayeed

Khan vs. State of Maharashtra and another [(2007)

5 SCC 1], where it was held,

"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 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 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."

16. Yet another disturbing fact that can be

gathered from the charge-sheet is that articles published

by several newspapers in Mangaluru were not in line with

the press release. The investigating officer has collected

newspaper reports to justify the commission of offences by

the petitioners. Therefore, it cannot be held that the

petitioners were promoting enmity between groups or

religions and hence, an offence under Section 153A or

505(1)(b) or 109 of IPC was not attracted and therefore,

the instant prosecution against the petitioners is liable to

be halted.

17. Hence, these petitions are allowed. The