Karnataka High Court
Krishna S/O Nagappa Naik vs The State Of Karnataka on 28 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
-1-
NC: 2025:KHC-D:3996
CRL.P No. 103864 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL PETITION NO.103864 OF 2024
[438(Cr.PC)/482(BNSS)]
BETWEEN:
KRISHNA S/O. NAGAPPA NAIK,
AGE: 57 YEARS, OCC. BUSINESS,
R/O. ASARKERI, TQ. BHATKAL,
DIST. UTTARA KANNADA.
... PETITIONER
(BY SRI VENKATESH M. KHARVI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE POLICE SUB INSPECTOR,
BHATKAL TOWN POLICE STATION,
REPRESENTED BY SPL. PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD-580008.
Digitally
signed by
... RESPONDENT
VN
VN BADIGER
BADIGER Date:
(BY SMT.GIRIJA S.HIREMATH, HCGP)
2025.03.01
10:28:20
+0530
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
BNSS, SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.1 TO
ANTICIPATORY BAIL IN BHATKAL TOWN P.S.CRIME NO.127/2024
DATED 08.11.2024 FOR THE OFFENCE PUNISHABLE UNDER SECTION
353 (2) BNS ON THE FILE OF PRL. CIVIL JUDGE (JR.DN.) AND JMFC
COURT, BHATKAL.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
-2-
NC: 2025:KHC-D:3996
CRL.P No. 103864 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
This petition is filed under Section 482 of Bharatiya
Nagarik Suraksha Sanhita, 2023 ('BNSS' for short), for grant of
anticipatory bail in Crime no.127/2024 of Bhatkal Town Police
Station for offence punishable under Section 353 (2) of
Bharatiya Nyaya Sanhita, 2023 ('BNS' for short) by sole
accused (petitioner).
2. Sri Venkatesh M. Kharvi, learned counsel for
petitioner submitted petitioner was 57 years old businessman
and permanent resident of Asarkeri. He had not committed any
offences, but apprehending arrest in Crime no.127/2024
registered on 08.11.2024 by Bhatkal Town Police Station for
offence punishable under Section 353 (2) of BNS arraigning
petitioner as sole accused in order to destroy his reputation.
3. It was submitted, even in complaint filed by
Mohiddin Ruknuddin (complainant), he stated that on
04.11.2024 at 12:00 p.m. petitioner had addressed public in
premises of Assistant Commissioner's office at Bhatkal, stating
that properties claimed by muslims as Wakf did not belong to
NC: 2025:KHC-D:3996
them, and that they were only tenants as in year 1947, their
fore-fathers were given properties and sent to Pakistan. He also
stated that for Hindus - Hindustan and for Muslims - Pakistan
were created. He declared that if muslims wanted property,
they were to go to Pakistan and get their properties there. He
was also alleged to have stated, in case they demanded
property, they would be driven away to Pakistan and for which,
there would be no requirement of Police or Army. It was alleged
in garb of protesting against land jihad, petitioner was
attempting to promote hatred on grounds of religion.
4. It was further stated that on 04.11.2024, an event
was organized by Bhatkal BJP, in premises of Assistant
Commissioner, Bhatkal, wherein Sunil Nayak former MLA and
other members of BJP party were present and petitioner had
joined them and stated falsehood against Muslims and Wakf
properties and in garb of protest event, he had made false
statements against Wakf properties and also threatened that
muslims would be sent to Pakistan, which was in violation of
their religious rights. Based on said complaint, Crime
no.127/2024 was registered for above said offence.
NC: 2025:KHC-D:3996
5. At outset, it was submitted, alleged incident
occurred on 04.11.2024, whereas complaint was filed on
08.11.2024 i.e. after delay of four days, which would be fatal.
It was submitted, to constitute offence under Section 353 (2) of
BNS, main ingredient would be intention to create or promote
hatred on ground of religion, between two religious groups.
But, complaint lacked specific assertion about intention. It was
submitted, petitioner was sole bread earner of family.
6. Insofar as criminal antecedents of petitioner, it was
submitted petitioner was acquitted in all others except in Crime
no.230/2017 for offence punishable under Sections 143, 147,
353, 341, 504 read with 149 of Indian Penal Code, 1860 ('IPC'
for short). It was submitted, since same was still pending, it
could not be referred to as antecedent. On above grounds,
sought for allowing petition.
7. On other hand, Smt.Girija S. Hiremath, learned
HCGP for respondent - State submitted, complaint contained
specific overt acts against petitioner. Further, offence alleged
against petitioner was of promoting hatred between two groups
on ground of religion which under Section 353 (2) of BNS would
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attract punishment of imprisonment upto 3 years. It was
submitted, since petitioner had involved himself in similar
offences earlier, in case of grant of bail, he was likely to commit
similar offences again. It was lastly submitted, since
investigation was in progress, there was also likelihood of
tampering of prosecution witnesses and material. On above
grounds, sought rejection.
8. Heard learned counsel.
9. From above, point that arises for consideration is:
"Whether petitioner is entitled for
anticipatory bail on conditions?"
10. From above, in this petition for anticipatory bail,
petitioner is basing his apprehension of imminent arrest on
registration of Crime no.127/2024 by Bhatkal Town Police
Station arraigning petitioner as sole accused, for offence
punishable under Section 353 (2) of BNS, which is non-bailable,
which would be in satisfaction of requirement of law.
11. While petition is opposed by prosecution on ground
that in guise of addressing protest gathering, petitioner had
delivered hate speech strumming hatred between two groups
NC: 2025:KHC-D:3996
on ground of religion which would constitute offence under
Section 353 (2) of BNS. It is also contended that petitioner
having committed offences earlier disentitled himself for bail.
12. But one of petitioner's main contention here is that
complaint lacks specific averment about intention which would
be required to establish offence under Section 353(2) of BNS.
While dealing with constitutional validity of predecessor
provision namely Section 505 of IPC, three main ingredients
were identified by Constitution Bench of Hon'ble Supreme Court
in case of Kedar Nath Singh v. State of Bihar, reported in
1962 SCC OnLine SC 6 as follows:
"29. It is only necessary to add a few
observations with respect to the
constitutionality of Section 505 of the Indian
Penal Code. With reference to each of the
three clauses of the section, it will be found
that the gravamen of the offence is making,
publishing or circulating any statement,
rumour or report (a) with intent to cause
or which is likely to cause any member
of the Army, Navy or Air Force to mutiny
or otherwise disregard or fail in his duty
as such; or (b) to cause fear or alarm to
the public or a section of the public
which may induce the commission of an
offence against the State or against
public tranquillity; or (c) to incite or
which is likely to incite one class or
community of persons to commit an
offence against any other class or
community. It is manifest that each one of
the constituent elements of the offence under
NC: 2025:KHC-D:3996
Section 505 has reference to, and a direct
effect on, the security of the State or public
order. Hence, these provisions would not
exceed the bounds of reasonable restrictions
on the right of freedom of speech and
expression. It is clear, therefore, that clause
(2) of Article 19 clearly saves the section
from the vice of unconstitutionality."
(emphasis supplied)
13. Prima facie perusal of complaint averments do not
reveal compliance with said requirement. However, it would be
too early and in fact inappropriate to give any conclusive
findings at this stage based on prima facie view of prosecution
material.
14. Insofar as criminal antecedents, petitioner filed a
memo specifically stating that he was acquitted in all
proceedings except one which was still pending. Until now,
petitioner has not been convicted for any offence. Having due
deference to principle of law that unless proved to be guilty
beyond reasonable doubt, every offence in which petitioner
may have been charged, cannot be considered as criminal
antecedent.
15. It is also noted that prosecution has not denied or
disputed petitioner's assertion that he was having movable and
NC: 2025:KHC-D:3996
immovable properties in Asarkeri viilage, Bhatkal Taluk. It is
also seen, offence alleged is neither punishable with death or
imprisonment for life. Therefore, point for consideration is
answered in affirmative, but subject to conditions and by
clarifying that any observations made herein are prima facie
and for purposes of this order and would not bind trial Court,
while passing final judgment. Hence, following:
ORDER
Petition is allowed. Petitioner/accused shall be
enlarged on bail, in case of his arrest in Crime
no.127/2024 of Bhatkal Town Police Station for
offence punishable under Section 353 (2) of BNS
subject to following conditions:
a) Petitioner shall appear before Investigating
Officer within 15 days from date of this order
and execute personal bonds for sum of
Rs.1,00,000/- with two sureties for likesum.
b) He shall appear before Investigating Officer for
purpose of investigation as and when required
and co-operate with investigation.
c) Until filing of charge-sheet, he shall appear
before Investigating Officer between 10:00 a.m.
till 6:00 p.m. on every alternative Friday,
starting from 07.03.2025.
NC: 2025:KHC-D:3996
d) He shall not threaten, tamper with or influence
prosecution witnesses, either directly or
indirectly.
e) He shall not indulge in any criminal activities.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD
CT:PA
