Amit Kumar Roul vs State Of Odisha & Anr
2021 Latest Caselaw 11376 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.852 of 2016

(An application under Section 482 of the Code of Criminal
Procedure, 1973)

Amit Kumar Roul                               ....              Petitioner
                                         Mr. P.C. Chhinchani, Advocate

                                 -versus-
State of Odisha & Anr.                        ....       Opposite Parties
                                                   Mr. D.R. Parida, ASC

Appeared in this case:


For the Petitioner           :       Mr. P.C. Chhinchani, Advocate


For the Opposite Parties     :       Mr. D.R. Parida, ASC


  CORAM:
  MR. JUSTICE R.K. PATTANAIK

 Date of Hearing : 02.11.2021        :       Date of Order: 10.11.2021


1.

This is an application under Section 482 of Cr.P.C. moved by the petitioner with a prayer for quashing of the criminal proceeding initiated against him allegedly for commission of an offence punishable under Section 153-A IPC in connection with G. Udayagiri P.S. Case No.88 of 2006 corresponding to G.R. Case No.231 of 2006 pending before the court of learned J.M.F.C., G. Udayagiri on the ground that it amounts to abuse of the process of Court.

2. Aforementioned case was registered pursuant to the FIR dated 26.10.2006 lodged by the complainants claiming // 2 //

to the members of 'G. Udayagiri Hindu Jagarana Samukhya' alleging that the petitioner sold a literature during the 'Shanti Mohatshaba' (Festival of Peace) which hurt them as belonging to the Hindu community and accordingly, requested the OIC, G. Udayagiri P.S. to take legal action against him. It is made to understand that after the FIR was lodged, G. Udayagiri P.S. during investigation seized the literature by 'Oh Hindu Awake' and collected the evidence and finally, submitted the charge sheet in 2006 against the petitioner for allegedly committing an offence punishable under Section 153-A IPC. According to the petitioner, there was no adequate material to prosecute him for such an offence. It is further contended that the learned court below on an erroneous consideration of the materials on record took cognizance of the offence on 31.07.2021.

3. A certified copy of the order of cognizance of the offence under Section 153-A IPC is at annexure-2 for the Court's perusal. In essence, the challenge is to the order of cognizance dated 31.07.2021 on the ground that there was no material to prosecute the petitioner and therefore, the very initiation and continuation of the criminal proceeding to be bad in law.

4. Heard learned counsel for the petitioner and learned counsel for the State.

5. Learned counsel for the petitioner contends that the ingredients of Section 153-A IPC are not fulfilled and therefore, no criminality can be attached to the alleged act. It is contended that petitioner was merely selling the literature in question and as such, it was an innocent act without any criminal intent or motive, inasmuch as, such was purely a normal act of // 3 //

business. According to the learned counsel for the petitioner, there is absolutely no iota of evidence to suggest and substantiate existence of mens rea and hence, the criminal proceeding in its entirety is wholly unjustified. Hence, it is claimed that the order of cognizance as at Annexure-3 and the proceeding in G.R. Case No.231 of 2006 deserve to be set aside/quashed.

6. Per contra, the learned counsel for the State would contend that for the alleged action of the petitioner, sanction as is required under law, was obtained in order to prosecute the petitioner under Section 153-A IPC. It is also contended that the alleged literature was being sold in course of an event organized by a particular community and hence, the intention was clearly apparent and the petitioner, therefore, cannot avoid a prosecution by claiming that he had no knowledge of the contents and as such, the learned court below committed no wrong or error by taking cognizance of the offence under Section 153-A IPC and thus, it should not be interfered with.

7. Learned counsel for the petitioner relied upon a decision of Supreme Court in the case of Balwant Singh and Anr. Vrs. State of Punjab reported in AIR (1995) 3 SCC 1785 and it is contended that the intention to cause disorder or to incite the people to violence is the sine qua non for offence under Section 153-A IPC and the prosecution has to prove the existence of mens rea in order to succeed and in so far as, the present case is concerned, such intent is totally absent. Another decision of Supreme Court in the case of Bilal Ahmed Kaloo Vrs. State of Andhra Pradesh reported in AIR 1997 SC 3483 is referred to in support of such a contention. Besides the above, a decision of the // 4 //

Supreme Court reported in AIR 2007 SC 2074 in the case of Vinod Hansraj Goyal Vrs. State of Maharastra and Anr. is cited, while reiterating the contention that intention to incite people to violence to cause disorder is absolutely necessary for an offence of Section 153-A IPC. It is urged that when the petitioner was a seller and did not have any knowledge regarding the contents of the alleged literature could not be said to have any criminal intent and therefore, mens rea was absent which the learned court below failed to appreciate and thus, for that matter, the order of cognizance dated 31.07.2013 cannot be sustained in law.

8. A contention is advanced by the learned counsel for the State that a question of mens rea, whether, absent or otherwise can only be considered on receiving the evidence or may be looked into at the stage of framing of charge and therefore, the order of cognizance dated 31.07.2013 ought not to be disturbed. In response to the above, the learned counsel for the petitioner placed reliance on a decision of Supreme Court in the case of Ashok Chaturvedi and others Vrs. Shitul H. Chanchani and another reported in (1998) 7 SCC 698.

9. It is no tenebrosity in the settled principle of law that merely because the accused's' right to plead at the time of framing of charge is available to claim that no material exists to be no ground not to approach to quash a criminal proceeding, if considering the complaint and other materials even if on face value make out no offence which is what was held and observed by Supreme Court in Ashok Chaturvedi case (supra).

// 5 //

10. Section 153-A of IPC is an offence for an act by a person who illegally by words, either spoken or written, or by such means promotes disharmony, feeling of enmity, hatred or ill- will between two communities or religion etc. or commits such act which is prejudicial to maintenance of harmony or likely to disturb the public tranquility punishable with imprisonment which may extend to three years, or with fine, or both. Definitely intention plays a prominent role in an offence being committed under Section 153-A of IPC. Time and again, Supreme Court in plethora of decisions categorically observed that such an act must be with mens rea.

11. From the FIR, it is made to realize that the complainants were pained to read the contents of the literature which was being sold by the petitioner. In the charge sheet as at annexure-1, it is revealed that the petitioner was having no knowledge as to be contents of the book, referring to which, it has been contended that intention was totally lacking. No material is on record to suggest that the petitioner not to be the author or publisher of the book in question. It would also be premature to reach at any such conclusion that the petitioner was neither the author nor publisher of the literature said to have been seized by the local police. Nevertheless, the petitioner was found selling the book at the festival shown to have been organized by a particular community. The contents of the book are not made known to the Court. It is neither revealed in the record about the contents of the literature and on its threadbare examination, it can be ascertained, whether, the same was to promote hatred or ill-will between the communities and such an exercise would be undertaken only during inquiry and trial.

// 6 //

12. However, the petitioner since claimed not to have any knowledge regarding contents of book, learned counsel for the petitioner by referring to the decisions (supra) challenged the criminal prosecution for absence of mens rea. Admittedly, a sanction is in place for the prosecution vis-a-vis the petitioner which is not challenged by the learned counsel for appearing for him. Since the book was being sold during a festival, apparently, organized by particular community, it could well be assumed at times that such an act was most likely to disturb the public tranquility or was likely to have such an effect. At the present, the question is predominantly relating to mens rea. At this juncture, it would not be proper to arrive at any such conclusion that the petitioner did not have any knowledge as to the contents of the book simply by accepting his assertion reflected in the charge sheet at Annexure-2. The question of petitioner's involvement and extent of role being played by him not as an author or publisher, or in any such capacity with or without any criminal intent or motive can only be agitated or determined during and in course of inquiry or trial. In other words, it would be too premature to reach at any decision for having no criminal intent or mens rea without thorough scrutiny and examination of literature in question vis-a-vis conduct of the petitioner in the light of the fact that it was being sold not in course of a normal commercial transaction but during a festival being organized by particular community. Though, in view of the ratio laid down in the case of Ashok Chaturvedi case (supra), a criminal proceeding can be dropped well before any challenge is made to the framing of charge of the accused of having right to plead absence of material, the Court is of the humble opinion that to quash such a proceeding exercising inherent jurisdiction under Section 482 of Cr.P.C., allegations in the complaint must make out // 7 //

no offence at all considering the same at its face value, which is again a settled law decided by the Supreme Court in its celebrated judgment of Bhajan Lal case. In the instant case, as it has already been stated, it would be premature and too early to consider and reach at a conclusion regarding absence of mens rea or any motive attributable to the petitioner.

13. Hence, it is ordered.

14. In the result, application under Section 482 of Cr.P.C. at the behest of the petitioner bears no merit and thus, dismissed for the reasons discussed herein above.

(R.K. Pattanaik) Judge

Dated 10th November, 2021/ T.Tudu, Steno