While clearing the fog on when liability under Section 153A of the IPC is attracted, the Uttarakhand High Court has in a most notable oral judgment titled Vijay Singh Pal Vs State of Uttarakhand and Another in Criminal Miscellaneous Application No. 1468 of 2021 that was pronounced as recently as on December 22, 2023 has explicitly held that to establish liability under Section 153A of the Indian Penal Code, 1860 (IPC), it is required to prove the ‘necessary mens rea’ and evidence indicating enmity between ‘two groups’. We must note that the Court allowed a petition challenging the summoning order associated with a case involving the promotion of disharmony through public demonstrations and posts on social media. The accused had allegedly made a controversial statement that ‘Hindu Samaj Khatre Me Hai’. (Hindu Society is in danger”).
We must note that while an FIR may not encompass all details, the Bench had noted that there is no evidence collected during the investigation supporting the claim of disharmony between different groups, communities or castes. What also cannot be missed out is that statements from witnesses underscored the petitioner’s actions pertaining to religion and a false demonstration about the destruction of a temple, with no mention of disharmony between distinct groups. We cannot afford to ignore that the Court observed that to trigger the application of Section 153A IPC, the intent is crucial, and a mere statement alone may not constitute an offence.
The Court reiterated that mens rea or a guilty mind, is a necessary element for an offence under Section 153-A. We ought to note that the Court while underscoring that the informant had failed to indicate any disharmony or ill will between different groups or castes held concisely that no prima facie offence under Section 153A IPC is established against the petitioner. Accordingly, the Court allowed the petition and set aside the summoning order along with the proceedings. Very rightly so!
At the very outset, this oral judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Ravindra Maithani of the Uttarakhand High Court sets the ball rolling by first and foremost putting forth in para 1 that, “The challenge in this petition is made to the chargesheet dated 30.06.2019, cognizance/summoning order dated 14.10.2019, passed in Criminal Case No. 16150 of 2019, State Vs. Vijay Singh Pal (FIR/Case Crime No.1053 of 2018), by the court of Chief Judicial Magistrate, Haridwar (“the case”), as well as the entire proceedings of the case.”
Needless to say, the Bench then states in para 2 that, “Heard learned counsel for the parties and perused the record.”
To put things in perspective, the Bench envisages in para 3 that, “The respondent no.2, the informant filed FIR No.1053 of 2018, under Section 153 A IPC, Police Station Kotwali Nagar Haridwar, District Haridwar, against the petitioner. According to the FIR, the petitioner has been demonstrating at a public crossing. He was shouting some religious slogans. The petitioner was also appealing to the public that they would not spare the person, who has demolished the Shiv Temple. He was also cautioning the public that, “Hindu Samaj is in Danger”. The FIR records that some posts were uploaded by the petitioner on the social media also. The links have been provided in the FIR. After investigation in the FIR, chargesheet has been submitted against the petitioner under Section 153 A IPC, on which cognizance was taken on 14.10.2019 under Section 153 A IPC. These proceedings are under challenge.”
Do note, the Bench notes in para 16 that, “The law on the subject has been discussed by the Hon’ble Bombay High Court in the case of Sandeep Arjun Kudale Vs. State of Maharashtra through Public Prosecutor, 2023 SCC OnLine Bom 519, and very substantively, the principles have been summed up in Para 20 as follows:-
“20. 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. P.C., 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;
(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”;
(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.””
As we see, the Bench then stipulates in para 17 that, “In these proceedings under Section 482 of the Code, this Court may not conduct any mini trial. If prima facie case is made out, definitely, a lawful trial may not be stopped at its threshold. But the question is, as argued on behalf of the petitioner, as to whether any prima facie case is made out against the petitioner.”
It cannot be lost sight of that the Bench then observes in para 18 that, “The arguments, which have been advanced on behalf of the State as well as on behalf of the informant, have a clear line of distinction between them. On behalf of the State, it is argued that the petitioner was appealing to the public in the name of the religion. Reference has been made to the statements of the witnesses recorded during investigation. Whereas, on behalf of the informant, while reading some social media posts, a distinction has tried to be drawn between the community, to which the petitioner belongs, and the other communities. It is argued that, in fact, not based on two different religions, but based on two different castes, the petitioner was trying to create a disharmony. On one side, Pal Baghel Holkar Dhanaitkar Samaj, and on the other side, Pandas Samaj. Fact remains that the prosecution has not come up with the case as to what is the caste of Pandas, to which he belongs, and what is Pal Baghel Holkar Dhanaitkar Samaj, as argued on behalf of the informant. Do they fall within the same basket of the same community or caste or are they distinct? If it is so, who has stated it? Where is that evidence? Except those alleged posts made by the petitioner, there is no material on record.”
Be it noted, the Bench notes in para 19 that, “The FIR, as such, does not speak of disharmony between two castes or communities. According to the FIR, the petitioner was trying to create disharmony between two religions. The catch phrase was, “Hindu Samaj Khatre me hai.(“Hindu Society is in danger”)” The FIR was on religion based. According to the FIR, the petitioner was trying to create disharmony between two religions.”
It cannot be glossed over that the Bench points out in para 20 that, “It is admitted fact that the petitioner and the informant both belong to the same religion. It is true that the FIR cannot be considered as an Encyclopedia. It cannot contain every detail of an offence. Some of the attributes of the offence may be collected during investigation to make the prosecution case complete. But then, there should be some evidence collected during investigation. The Investigating Officer has recorded the statement of the informant. He has reiterated the version of the FIR. He has stated about religion. He has not stated about any caste. In his statement to the Investigating Officer, the informant does not say that the petitioner was trying to create disharmony between two groups, two communities or two castes. He spoke about religion alone.”
Simply put, the Bench states in para 21 that, “Witnesses Sandeep, Anirudh, Rahul Aggarwal and Bansal Arora have been examined by the Investigating Officer. They have also stated about the religion. They have also not stated that the petitioner, in any manner, was trying to create disharmony between two distinct groups of castes and communities.”
Briefly stated, the Bench states in para 22 that, “Witnesses Chandra Mohan, Shreya Talwar and Preet Kamal have stated that the petitioner was wrongly demonstrating that the temple has been destroyed. According to these witnesses, the temple, in fact, had never been destroyed.”
To be sure, the Bench then while stating the relevant case law propounds in para 23 that, “In order to attract the provisions of Section 153 A IPC, the intention has some bearing. Mere statement, per se, may not make out any offence. In the case of Bilal Ahmed (supra), in Para 11, the Hon’ble Supreme Court referred to the judgment in the case of Balwant Singh v. State of Punjab, (1995) 3 SCC 214, wherein it was held that, “mens rea is a necessary ingredient for the offence under Section 153-A.””
For clarity, the Bench clarifies in para 24 stating that, “It is the case of the petitioner that, in fact, he had been agitating with regard to the temple property and its transfer.”
Quite significantly, the Bench expounds in para 25 that, “It is the prosecution case that the statement, with regard to the destruction of the temple, as made by the petitioner was false, but it also, per se, does not attract the provisions of Section 153 A IPC.”
Most significantly, the Bench then points out in para 26 what forms the cornerstone of this learned judgment that, “The FIR does not speak about any disharmony between two castes. It speaks of attempted disharmony between two religions. As stated, the religion of the petitioner and the informant, admittedly, is one and the same. The prosecution witnesses have not stated about any attempted disharmony between any two groups or communities. As stated, the prosecution witnesses, as examined during investigation, have stated about attempted religions disharmony; false statement and false demonstration Dharna. Even the informant has not told it to the Investigating Officer that the petitioner, in any manner, tried to create any disharmony; ill will between any two groups or castes. The informant himself has not stated as to which caste he belongs and as to which caste the petitioner belongs. Of course, some social media posts have been referred to make a distinction, which no witness has as such supported.”
As a corollary, the Bench then directs in para 27 holding that, “In view of what is stated hereinabove, this Court is of the view that even if the prosecution case is accepted in its entirety, prima facie offence under Section 153 A IPC is not made out against the petitioner. Accordingly, the petition is liable to be allowed.”
Further, the Bench directs in para 28 that, “The petition is allowed.”
Finally, we see that the Bench then concludes by holding aptly in para 29 that, “The chargesheet dated 30.06.2019, cognizance/summoning order dated 14.10.2019, as well as the entire proceedings of the case are, hereby, quashed.”
In sum, we thus see that the Single Judge Bench comprising of Hon’ble Mr Justice Ravindra Maithani of the Uttarakhand High Court has pulled aside the curtains and made the picture of this leading case pretty clear. There can be thus no gainsaying that the FIR against the petitioner U/S 153A IPC was thus rightly quashed against the petitioner as no case was made out. No denying it!
Sanjeev Sirohi
