Madhya Pradesh High Court
Neha Singh Rathore vs The State Of Madhya Pradesh on 15 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C No.47663/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 15th OF MAY, 2024
MISCELLANEOUS CRIMINAL CASE No. 47663 of 2023
BETWEEN:-
NEHA SINGH RATHORE W/O SHRI HIMANSHU
SINGH, AGED ABOUT 27 YEARS, OCCUPATION:
FOLK SINGER, R/O HIDIPAKADIYA, AKBARPUR,
POLICE STATION KOTWALI AKBARPUR,
DISTRICT AMBEDKAR NAGAR (UTTAR
PRADESH)
.....APPLICANT
(BY SHRI ARUBENDRA SINGH PARIHAR - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI BAIDHAN,
DISTRICT SINGRAULI (MADHYA PRADESH)
2. JUNEB KHAN ALIAS (ASHU) S/O SHRI
HAFEEZ KHAN R/O WARD NO.13, BASARI
GATE CHHATARPUR, THANA, CITY
KOTAWALI, CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI MOHAN SAUSARKAR - PUBLIC PROSECUTOR)
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed
seeking following relief(s):-
"It is, therefore, for the facts and reasons as
stated above, it is most respectfully prayed that
this Hon'ble Court may graciously be pleased to
quash the first information report No.0468/2023,
Under Section 153-A of Indian Penal Code
registered at Police Station - Chhatarpur, District
- Chhatarpur, FIR Dated 09.07.2023 against the
applicant and proceeding incidental to it, in the
interest of justice for the glory of justice, for just
decision of the case and to secure the ends of
justice.
AND/OR any other order or direction of an
appropriate nature that this Hon'ble court may
deem fit and proper in the circumstances of the
case may kindly also be granted in favour of the
Petitioner."
2. It is submitted by counsel for the applicant that an incident had
taken place where one person in an inebriated condition peed on another
person belonging to the reserved category. Applicant is a Folk singer
and it is her moral duty to highlight such gruesome incidents and
accordingly, she uploaded a message on her Twitter and Instagram
account along with cartoon in which a person in semi-naked condition
was seen peeing on another person who was sitting on the floor and one
half Pant of yellowish brown (khakhi) colour was shown lying on the
floor. It is submitted that since the applicant was being scolded as an
Agent of other political parties, therefore she had mentioned that she is
not afraid of any threat. It is submitted by counsel for the applicant that
even if the entire allegations are accepted, still it is clear that no offence
punishable under Section 153A of IPC is made out.
3. Per contra, application is vehemently opposed by counsel for the
State. It is submitted that making a distasteful comment which may
promote disharmony or feelings of enmity, hatred or ill-will between
different religious, racial, language or regional groups or castes or
communities and which is prejudicial to the maintenance of harmony,
would amount to an offence punishable under Section 153A of IPC. It is
further submitted by counsel for the State that Supreme Court in the
case of Amish Devgan Vs. Union of India and Ors. reported in AIR
Online 2020 SC 930 has interpreted the provisions of Section 153A of
IPC and has refused to quash the proceedings. It is further submitted by
counsel for the State that the incident had escalated the tension and the
State had also invoked the provisions of National Security Act and the
person who in an inebriated condition had peed on another person
belonging to the reserved category was detained under the National
Security Act and even the Writ Petition challenging the preventive
detention under National Security Act was dismissed.
4. Considered the submissions made by counsel for the parties.
5. Section 153A of IPC reads as under:-
"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 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 tranquillity, or
(c) organizes any exercise, movement, drill or
other similar activity intending that the
participants in such activity shall use or be
trained to use criminal force or violence or
knowing it to be likely that the participants in
such activity will use or be trained to use
criminal force or violence, or participates in
such activity intending to use or be trained to
use criminal force or violence or knowing it to
be likely that the participants in such activity
will use or be trained to use criminal force or
violence, against any religious, racial,
language or regional group or caste or
community and such activity for any reason
whatsoever causes or is likely to cause fear or
alarm or a feeling of insecurity amongst
members of such religious, racial, language or
regional group or caste or community,
shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
Offence committed in place of worship, etc.--(2)
Whoever commits an offence specified in sub-section
(1) in any place of worship or in any assembly
engaged in the performance of religious worship or
religious ceremonies, shall be punished with
imprisonment which may extend to five years and
shall also be liable to fine."
6. Applicant had uploaded a cartoon on her Twitter and Instagram
account which has been filed along with this application as Annexure-
A/2. From this cartoon, it is seen that the person who is peeing on
another person is half naked and his half Pant which is yellowish brown
in colour is lying on the floor and the person is wearing a black cap with
white shirt and a belt.
7. Accordingly, counsel for the applicant was directed to clarify as to
whether the person who had peed on the member of reserved category
was wearing the same dress and was in the same condition or not?
8. It was fairly conceded by counsel for applicant that the cartoon
which has been uploaded by the applicant was not in accordance with
the actual incident and certain dress was included which the accused
was not wearing at the time of incident.
9. The Supreme Court in the case of Amish Devgan (supra) has
held as under:-
"54. The present case, it is stated, does not relate
to 'hate speech' causally connected with the
harm of endangering security of the State, but
with 'hate speech' in the context of clauses (a)
and (b) to sub-section (1) of Section 153A,
Section 295A and sub-section (2) to Section 505
of the Penal Code. In this context, it is necessary
to draw a distinction between 'free speech'
which includes the right to comment, favour or
criticise government policies; and 'hate speech'
creating or spreading hatred against a targeted
community or group. The former is primarily
concerned with political, social and economic
issues and policy matters, the latter would not
primarily focus on the subject matter but on the
substance of the message which is to cause
humiliation and alienation of the targeted group.
The object of criminalising the latter type of
speech is to protect the dignity (as explained
above) and to ensure political and social equality
between different identities and groups
regardless of caste, creed, religion, sex, gender
identity, sexual orientation, linguistic preference
etc. Freedom to express and speak is the most
important condition for political democracy. Law
and policies are not democratic unless they have
been made and subjected to democratic process
including questioning and criticism. Dissent and
criticism of the elected government's policy,
when puissant, deceptive or even false would be
ethically wrong, but would not invite penal
action. Elected representatives in power have the
right to respond and dispel suspicion. The
'market place of ideas' and 'pursuit of truth'
principle are fully applicable. Government
should be left out from adjudicating what is true
or false, good or bad, valid or invalid as these
aspects should be left for open discussion in the
public domain. This justification is also premised
on the conviction that freedom of speech serves
an indispensable function in democratic
governance without which the citizens cannot
successfully carry out the task to convey and
receive ideas. Political speech relating to
government policies requires greater protection
for preservation and promotion of democracy.
Falsity of the accusation would not be sufficient
to constitute criminal offence of 'hate speech'.
The Constitutional Bench decision of this Court
in Kedar Nath Singh and the subsequent
decisions have clearly and uniformly held that
there is difference between 'government
established by law' and 'persons for the time
being engaged in carrying on administration' and
that comment or criticism of the government
action in howsoever strong words must be
protected and cannot be a ground to take penal
action unless the words written or spoken, etc.
have pernicious tendency or intention of creating
public disorder. Without exciting those feelings
which generate inclination to cause public
disorder by acts of violence, political views and
criticism cannot be made subject matter of penal
action. Reference to later decision in Arun Ghosh
drawing distinction between serious and
aggravated from of breaches of public order that
endanger public peace and minor breaches that
do not affect public at large would be apposite.
In consonance with the constitutional mandate of
reasonable restriction and doctrine of
proportionality in facts of each case it has to be
ascertained whether the act meets the top of
Clapham omnibus test and whether the act was
'likely' to lead to disturbance of the current life
of the community so as to amount to disturbance
of public order; or it may affect an individual or
some individuals leaving the tranquillity of the
society undisturbed. The latter and acts excluded
on application of the top of Clapham omnibus
test are not covered. Therefore, anti-democratic
speech in general and political extremist speech
in particular, which has no useful purpose, if and
only when in the nature of incitement to violence
that 'creates', or is 'likely to create' or
'promotes' or is 'likely to promote' public
disorder, would not be protected.
55. Sometimes, difficulty may arise and the
courts and authorities would have to exercise
discernment and caution in deciding whether the
'content' is a political or policy comment, or
creates or spreads hatred against the targeted
group or community. This is of importance and
significance as overlap is possible and principles
have to be evolved to distinguish. We would
refer to one example to illustrate the difference.
Proponents of affirmative action and those
opposing it, are perfectly and equally entitled to
raise their concerns and even criticise the
policies adopted even when sanctioned by a
statute or meeting constitutional scrutiny,
without any fear or concern that they would be
prosecuted or penalised. However, penal action
would be justified when the speech proceeds
beyond and is of the nature which defames,
stigmatises and insults the targeted group
provoking violence or psychosocial hatred. The
'content' should reflect hate which tends to
vilify, humiliate and incite hatred or violence
against the target group based upon identity of
the group beyond and besides the subject matter.
56. Our observations are not to say that persons
of influence or even common people should fear
the threat of reprisal and prosecution, if they
discuss and speak about controversial and
sensitive topics relating to religion, caste, creed,
etc. Such debates and right to express one's
views is a protected and cherished right in our
democracy. Participants in such discussions can
express divergent and sometimes extreme views,
but should not be considered as 'hate speech' by
itself, as subscribing to such a view would stifle
all legitimate discussions and debates in public
domain. Many a times, such discussions and
debates help in understanding different view-
points and bridge the gap. Question is primarily
one of intent and purpose. Accordingly, 'good
faith' and 'no legitimate purpose' exceptions
would apply when applicable.
* * *
64. In the context of Section 153A(b) we would
hold that public tranquillity, 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 153A, therefore,
has to be read accordingly to satisfy the
constitutional mandate. We would interpret the
words 'public tranquillity' in clause (b) would
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) to 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.
* * *
68. The word 'attempt', though used in Sections
153-A and 295-A of the Penal Code, has not
been defined. However, there are judicial
interpretations that an 'attempt to constitute a
crime' is an act done or forming part of a series
of acts which would constitute its actual
commission but for an interruption. An attempt is
short of actual causation of crime and more than
mere preparation. In Aman Kumar v. State of
Haryana, (2004) 4 SCC 379 it was held that an
attempt is to be punishable because every
attempt, although it falls short of success, must
create alarm, which by itself is an injury, and the
moral guilt of the offender is same as if he had
succeeded. Moral guilt must be united to injury
in order to justify punishment. Further, in State
v. Mohd. Yakub, (1980) 3 SCC 57 this Court
observed:
"13...What constitutes an attempt is
mixed question of law and fact
depending largely upon the
circumstances of a particular case.
"Attempt" defies a precise and exact
definition. Broadly speaking all
crimes which consist of the
commission of affirmative acts are
preceded by some covert or overt
conduct which may be divided into
three stages. The first stage exists
when the culprit first entertains the
idea or intention to commit an
offence. In the second stage he
makes preparation to commit it. The
third stage is reached when the
culprit takes deliberate overt act or
step to commit the offence. Such
overt act or step in order to be
'criminal' need not be the
penultimate act towards the
commission of the offence. It is
sufficient if such acts were
deliberately done, and manifest a
clear intention to commit the offence
aimed, being reasonably proximate
to the consummation of the
offence..."
On the scope of proximity, it was elucidated that
the measure of proximity is not in relation to
time and place but in relation to intention.
In the context of 'hate speech', including the
offences related to promoting disharmony or
feelings of enmity, hatred or ill-will, and
insulting the religion or the religious beliefs, it
would certainly require the actual utterance of
words or something more than thought which
would constitute the content. Without actual
utterance etc. it would be mere thought, and
thoughts without overt act is not punishable. In
the case of 'publication', again a mere thought
would not be actionable, albeit whether or not
there is an attempt to 'publish' would depend on
facts. The impugned act should be more than
mere preparation and reasonably proximate to
the consummation of the offence, which has been
interrupted. The question of intent would be
relevant. On the question of the harm's element,
same test and principle, as applicable in the case
of 'likely' would apply, except for the fact that
for intervening reasons or grounds public
disorder or violence may not have taken place."
10. Why the dress of persons believing particular ideology was added
by the applicant on her own, is a question which is to be decided in the
trial.
11. The addition of a particular dress was indicative of the fact that
applicant wanted to communicate that the offence was committed by a
person belonging to a particular ideology. Thus, it was a clear case of
making an attempt to disrupt harmony and to provoke the feelings of
enmity, hatred or ill-will.
12. So far as the contention of counsel for the applicant that the
applicant had no intention to commit an offence under Section 153A of
IPC is concerned, this Court is of considered opinion that it is a defence
which has to be proved by the applicant in the trial.
13. It is well established principle of law that this Court can quash the
proceedings only if uncontroverted allegations made in the FIR do not
make out an offence.
14. Since the cartoon which was uploaded by the applicant on her
Twitter and Instagram account was not in accordance with the incident
which had taken place and certain additional things were added by the
applicant on her own, this Court is of considered opinion that it cannot
be said that the applicant had uploaded the cartoon by exercising her
fundamental right of free speech and expression. Even otherwise,
fundamental right of free speech and expression is not an absolute right
and is subject to reasonable restrictions. Although an artist must have
the liberty to criticize through satire but adding a particular dress in the
cartoon cannot be said to be a satire. The attempt of the applicant was to
involve a group of particular ideology without any basis. Therefore, it
would not come within the purview of Article 19(1)(a) of Constitution
of India and even a satirical expression may be prohibited under Article
19(2) of Constitution of India.
15. The Supreme Court in the case of Patricia Mukhim Vs. State of
Meghalaya and Others reported in (2021) 15 SCC 35 has held as
under:-
"8. "It is of utmost importance to keep all speech
free in order for the truth to emerge and have a
civil society."--Thomas Jefferson. Freedom of
speech and expression guaranteed by Article
19(1)(a) of the Constitution is a very valuable
fundamental right. However, the right is not
absolute. Reasonable restrictions can be placed
on the right of free speech and expression in the
interest of sovereignty and integrity of India,
security of the State, friendly relations with
foreign States, public order, decency or morality
or in relation to contempt of Court, defamation or
incitement to an offence. Speech crime is
punishable under Section 153-A IPC. Promotion
of enmity between different groups on grounds
of religion, race, place of birth, residence,
language, etc. and doing acts prejudicial to
maintenance of harmony is punishable with
imprisonment which may extend to three years or
with fine or with both under Section 153-A. As
we are called upon to decide whether a prima
facie case is made out against the appellant for
committing offences under Sections 153-A and
505(1)(c), it is relevant to reproduce the
provisions which are as follows:
"153-A. 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
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) organises any exercise,
movement, drill or other similar
activity intending that the
participants in such activity shall use
or be trained to use criminal force or
violence or knowing it to be likely
that the participants in such activity
will use or be trained to use criminal
force or violence, or participates in
such activity intending to use or be
trained to use criminal force or
violence or knowing it to be likely
that the participants in such activity
will use or be trained to use criminal
force or violence, against any
religious, racial, language or
regional group or caste or
community and such activity, for
any reason whatsoever causes or is
likely to cause fear or alarm or a
feeling of insecurity amongst
members of such religious, racial,
language or regional group or caste
or community,
shall be punished with imprisonment
which may extend to three years, or
with fine, or with both.
Offence committed in place of
worship, etc.--(2) Whoever
commits an offence specified in sub-
section (1) in any place of worship
or in any assembly engaged in the
performance of religious worship or
religious ceremonies, shall be
punished with imprisonment which
may extend to five years and shall
also be liable to fine.
* * *
505. Statements conducing to
public mischief.--(1) Whoever
makes, publishes or circulates any
statement, rumour or report--
* * *
(c) with intent to incite, or which is
likely to incite, any class or
community of persons to commit
any offence against any other class
or community,
shall be punished with imprisonment
which may extend to three years, or
with fine, or with both."
9. Only where the written or spoken words have
the tendency of creating public disorder or
disturbance of law and order or affecting public
tranquility, the law needs to step in to prevent
such an activity. 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. [Balwant Singh v. State
of Punjab, (1995) 3 SCC 214 : 1995 SCC (Cri)
432]
10. The gist of the offence under Section 153-A
IPC is the intention to promote feelings of
enmity or hatred between different classes of
people. The intention has to be judged primarily
by the language of the piece of writing and the
circumstances in which it 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 [Manzar Sayeed
Khan v. State of Maharashtra, (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417].
11. In Bilal Ahmed Kaloo v. State of A.P., (1997)
7 SCC 431 : 1997 SCC (Cri) 1094, this Court
analysed the ingredients of Sections 153-A and
505(2) IPC. It was held that 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 feeling of enmity, hatred or ill will.
Under Section 505(2) promotion of such feeling
should have been done by making a publication
or circulating any statement or report containing
rumour or alarming news. Mens rea was held to
be a necessary ingredient for the offence under
Sections 153-A and 505(2). The common factor
of both the sections being promotion of feelings
of enmity, hatred or ill will between different
religious or racial or linguistics or religious
groups or castes or communities, it is necessary
that at least two such groups or communities
should be involved. It was further held in Bilal
Ahmed Kaloo [Bilal Ahmed Kaloo v. State of
A.P., (1997) 7 SCC 431 : 1997 SCC (Cri) 1094]
that merely inciting the feelings of one
community or group without any reference to
any other community or group cannot attract any
of the two sections. The Court went on to
highlight the distinction between the two
offences, holding that publication of words or
representation is sine qua non under Section 505.
It is also relevant to refer to the judgment of this
Court in Ramesh v. Union of India (1988) 1 SCC
668 : 1988 SCC (Cri) 266 in which it was held
that words used in the alleged criminal speech
should be judged from the standards of
reasonable, strong-minded, firm and courageous
men, and not those of weak and vacillating
minds, nor of those who scent danger in every
hostile point of view. The standard of an ordinary
reasonable man or as they say in English law
"the man on the top of a Clapham omnibus"
should be applied.
12. This Court in Pravasi Bhalai
Sangathan v. Union of India, (2014) 11 SCC 477
: (2014) 3 SCC (Cri) 400 had referred to the
Canadian Supreme Court decision
in Saskatchewan (Human Rights
Commission) v. William Whatcott, 2013 SCC
OnLine Can SC 6 : (2013) 1 SCR 467. In that
judgment, the Canadian Supreme Court set out
what it considered to be a workable approach in
interpreting "hatred" as is used in legislative
provisions prohibiting hate speech. The first test
was for the Courts to apply the hate speech
prohibition objectively and in so doing, ask
whether a reasonable person, aware of the
context and circumstances, would view the
expression as exposing the protected group to
hatred. The second test was to restrict
interpretation of the legislative term "hatred" to
those extreme manifestations of the emotion
described by the words "detestation" and
"vilification". This would filter out and protect
speech which might be repugnant and offensive,
but does not incite the level of abhorrence,
delegitimisation and rejection that risks causing
discrimination or injury. The third test was for
the Courts to focus their analysis on the effect of
the expression at issue, namely, whether it is
likely to expose the targeted person or group to
hatred by others. Mere repugnancy of the ideas
expressed is insufficient to constitute the crime
attracting penalty."
16. Considering the totality of facts and circumstances of the case,
this Court is of considered opinion that no case is made out warranting
interference.
17. Application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
