Sri Basavaraj Bommai Vs State of Karnataka

STATE OF KARNATAKA BY SAVANUR POLICE STATION, SAVANUR, HAVERI DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA PRINCIPAL BENCH BENGALURU-560 001.

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SRI. MANJUNATH MANNIYAVAR AGE 32 YEARS POLICE OFFICER SAVANUR POLICE STATION SAVNOOR TALUK-581 118 DISTRICT HAVERI.

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…RESPONDENTS

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(BY SRI. B.N. JAGADEESH, ADDL. SPP FOR R.1 R.2 IS SERVED AND UNREPRESENTED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023, PRAYING TO QUASH THE COMPLAINT DATED 04.11.2024 (ANNEXURE A), FIRST INFORMATION REPORT BEARING CRIME NO.0208/2024 DATED 04.11.2024 (ANNEXURE B) REGISTERED AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTION 196(1)(A) OF THE BHARATIYA NYAYA SANHITA, 2023 AND THE NOTICE ISSUED UNDER SECTION 35 (3) OF BNSS IN CRIME NO.0208/2024 DATED 07.11.2024 (ANNEXURE-C) AND ALL FURTHER INVESTIGATION THERETO PENDING ON THE FILE OF THE LEARNED CIVIL JUDGE & JMFC COURT, SAVANUR, HAVERI DISTRICT, AS AGAINST THE PETITIONER.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, the petitioner has sought for the following reliefs:

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" I. Quash the Complaint dated 04.11.2024 (Annexure A), First Information Report bearing Crime No.0208/2024 dated 04.11.2024 (Annexure B) registered against the Petitioner for the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 and the notice issued under Section 35 (3) of BNSS in Crime No.0208/2024 dated 07.11.2024 (Annexure-C) and all further investigation thereto pending on the file of the Learned Civil Judge & JMFC Court, Savanur, Haveri District, as against the Petitioner.

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II, Further this Hon'ble Court may be pleased to grant such other reliefs as deemed fit in the interest of justice and equity."

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Heard learned Senior Counsel for the petitioner and learned

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Additional SPP for respondent No.1 and perused the material on record. Respondent No.2 has been served and remained unrepresented.

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In addition to reiterating the various contentions urged in the petition and referring to the material on record, the learned Senior

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Counsel for the petitioner invited my attention to the impugned complaint and FIR in order to point out that necessary ingredients for commission of the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 (old Section 153A of IPC) were conspicuously absent and not forthcoming in the same and the impugned complaint and FIR deserve to be quashed in the light of the following judgments of the Apex Court and this Court:

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Javed Ahmad Hajam v. State of Maharashtra [(2024) 4 SCC 156]

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Shiv Prasad Semwal v. State of Uttarakhand [(2024) 7 SCC 555]

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3 . Bilal Ahmed Kaloo v. State of A.P., [(1997)7 SCC 431] 4 . Suresha v. State of Karnataka [Crl.P.No.5694/2024 DD 20.09.2024]

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Per contra, learned Additional SPP for respondent No.1 submits that the complaint makes out the allegations and the entire speech clearly indicates commission of the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023, and

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as such, question of interfering with the same at this stage would

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not arise in the facts and circumstances of the instant case.

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Before adverting to the rival submissions, it would be necessary to extract the complaint which is as under:

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" �ಾನು ಮಂಜು�ಾಥ ಮ��ಯವರ ವಯಸು� 32 ವಷ� , ��ೕಸ �ಾನ��ೇಬ� ನಂಬರ 1202 ಸವಣೂರ ��ೕ� �ಾ�ೆ � . ನಂ . 9740951558 �ೊಟ! ¦ügÁå¢, "�ಾಂಕ -04-11-2024

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�ಾನು ಈಗ 4 ವಷ�"ಂದ ಸವಣೂರ ��ೕ� �ಾ�ೆಯ�' ( . ) . ( . 1202 ಅಂತಕತ�ವ, -ವ�.ಸು/01ೆ2ೕ�ೆ . ಸದ, ಸವಣೂರ��ೕ��ಾ�ೆಯ�' ಗುಪ0 4ಾ./ ಸಂಗ5.ಸುವ ಕತ�ವ, -ವ�.ಸು/01ೆ2ೕ�ೆ . ಈ "ವಸ "�ಾಂಕ - 04-11-2024 ರಂದು ಸವಣೂರ ��ೕ� �ಾ�ಾ 6ಾ,)0ಯ�' 78ಾ9ಂವ - ಸವಣೂರ :;ಾನಸ<ಾ ಉಪ ಚು�ಾವ�ೆಯ �ಾಂ8ೆ5ೕಸ ಪ?ದ ಚು�ಾವ�ಾ ಪ5@ಾರ ಸ<ೆಗಳ�' 4ಾನ, ಮುಖ,ಮಂ/5ಗಳC ಕ�ಾ�ಟಕ ಸ�ಾ�ರ ರವರು <ಾಗವ.ಸುವ ಬಂ1ೋಬಸ0 ಕತ�ವ,ದ�'ದು2 ಅಲ'1ೆ ಸವಣೂರ ನಗರದ�' E . Fೆ . ) . ಪ?ದ ವ/Gಂದ 1ೇವHಾIನ ಮತು0 Jೈತರ ಅ(0ಯನುL ಕಬMಸು/0ರುವವN� ಮಂಡMPಾಗೂ �ಾಂ8ೆ5ೕಸಪ?ದ-;ಾ�ರವನುL ಖಂQ( 4ಾನ, 4ಾR ಮುಖ,ಮಂ/5ಗಳC 75ೕ . ಬಸವJಾಜ Sೊ4ಾTG ಇವರ �ೇತೃತWದ�' ಪ5/ಭಟ�ೆಯ ಬಂ1ೋಬಸ0 PÀvÀðªÀå¤ªÀð»¸ÀÄwÛzÁÝUÀ ಈ "ವಸ "�ಾಂಕ -04-11-2024 ರಂದು ಮ1ಾ,ಹL 3-30 ಗಂ�ೆ ಸು4ಾZ8ೆ ಸವಣೂರನಗರದಭರಮ1ೇವರಸಕ��ದ�'ಬಂ1ೋಬಸ[ ಕತ�ವ,ದ�'1ಾ2ಗ 1) 4ಾನ, 4ಾRಮುಖ,ಮಂ/5ಗಳC 75ೕಬಸವJಾಜ Sೊ4ಾTG 2) 75ೕ ( . \ ರ: 4ಾR ಮಂ/5ಗಳC 3) 75ೕ . ಅರ:ಂದ Sೆಲ'ದ ]ಾಸಕರು 4) 75ೕ ) . JಾRೕವ 4ಾR ]ಾಸಕರು 5) 75ೕ . ಅರುಣಕು4ಾರ ಪ^Fಾರ 4ಾR ]ಾಸಕರು ಇವರುಗಳC ಒಂದು 6ಾಹನದ�' ಹ/0 ತಮT <ಾಷಣವನುL 4ಾQದು2 ಅದರ�' 4ಾನ, 4ಾR ಮುಖ,ಮಂ/5ಗಳC 75ೕ ಬಸವJಾಜ Sೊ4ಾTG ಮತು0

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75ೕ . ( . \ . ರ:4ಾRಮಂ/5ಗಳC ಇವರು ತಮT <ಾಷಣದ�'ಒಂದು ಧಮ�ದ ಜನರ<ಾವ�ೆ �ೆರMಸುವ ಮತು0 ಉaೆ0ೕಜನ -ೕಡುವ Pಾ8ೆ <ಾಷಣ 4ಾQದು2 Sೊ4ಾTGರವರು 4ಾತ�ಾಡು6ಾಗ ಸವಣೂರ ನಡುವ -ಂತ ಎ�' ಕಲ' ©ಲ'aೈ/ ಅದ�ೆc ವPïá ಆ(0 , ಅಂ8ಾತ ನಮT <ೋ: ಸ4ಾಜದ ಮ�ೆಗಳ -4ಾ�ಣ 4ಾಡSೇಕು ಅಂaಾ ಹಣ ಮಂಜೂರು 4ಾQದು2 ಸು4ಾರು ಮೂರು ವಷ�ದ.ಂ1ೆ <ೋ: ಸ4ಾಜ�ೆc ಮಂಜೂರು 4ಾQದಹಣ ಅದು ಕೂಡ ವPïá ಆ(0ಅಂತPೇಳCaಾ0Jೆ ಅಂತಒಂದು Fಾ/ಯನುL ಉaೆ0ೕRಸುವಉ1ೆ2ೕಶ"ಂದ ಮತು0 ( . \ . ರ: ರವರು ನಮ8ೆ ಸಂ:;ಾನ 1ೊಡg1ೋ ಅಥ6ಾ ಶZೕhಾ �ಾನೂನು 1ೊಡg1ೋ ಇ�' ವPïá PೆಸZನ�' Jೈತರ ಜiೕನುಗಳನುL , 1ೇವHಾIನಗಳನುL, �ೆJೆಗಳನುL ವPïá kಾaೆ8ೆ ಹಚುl/01ಾ2Jೆ ಇ�' ಜiೕgï CºÀäz ವರÀ ಶZೕhಾ �ಾನೂನು ನmೆಯnಾ' ಅಂaಾ ಮತು0 ಸು4ಾರು 1600 ವಷ�ಗಳ .ಂದ ಕ!ದ HೋoೕಶWರ 1ೇವHಾIನ ನಮTದು ಅಂ/1ಾ2Jೆ ಇವZ8ೆ hಾವpದರ�' PೊmೆಯSೇಕು ಅಂತ ಜನZ8ೆ �ೇM1ಾಗ ಜನರು ಚಪq�Gಂದ PೊmೆಯSೇಕು ಅಂತ ಕೂrರುaಾ0Jೆ . ಅಲ'1ೆ ಈಗ ಏ�ಾದರೂ Sಾಲ EtlದJೆ ಚnೇFಾವ ಚಳCವM 1947 ರ�' ಎnಾ' �ೊ!1ೆ HಾಬZ8ೆ uಾvHಾ0ನ .ಂದೂಗM8ೆ ಇಂQhಾ �ೊಟು! nೆ�ಾc ಚು�ಾ0 4ಾQ ಆr1ೆ ಆದರೂ ಸ.ತ ನಮT Jೈತರ ಜiೕನು , 1ೇವHಾIನ Sೇಕಂತ ಅಂತ �ೈಯ�' oೖN .Qದು�ೊಂಡು ಏರು ಧw-ಯ�' ಕೂQದ ಜನರ ಮುಂ1ೆ <ಾಷಣ 4ಾQದು2 ಇದZಂದ �ೋಮುಗಳ , ಅಥ6ಾ Fಾ/ಗಳ ಮದ, ಅHೌPಾದ�aೆ ಅಥ6ಾ 6ೈರತW , 6ೈಮನಸು� ಮೂಡುವಂತಹ , <ಾವ�ೆಗಳC �ೆರಳCವಂaೆ ಒಂದು �ೋ:8ೆ ಉaೆ0ೕಜನ -ೕಡುವಂತಹ <ಾಷಣ 4ಾQದು2 ಸದZ <ಾಷಣವನುL ನನL �Sೈ� ಮೂಲಕ:ೕQyೕ t/5ೕಕರಣ 4ಾQರುaೆ0ೕ�ೆ . ಸವಣೂರ ನಗರದ�' ಉಪಚು�ಾವ�ೆಯ -ೕ/ ಸಂ.aೆ FಾZಯ�'ದು2 ಆದರೂ ಸ.ತ oೕnಾc�(ದ E . Fೆ . ) . ಪ?ದ ಮುಖಂಡರು ಒಂದು Fಾ/ ಅಥ6ಾ ಒಂದೂ �ೋಮನವರ <ಾವ�ೆ8ೆ ಧ�ೆc ತರುವಂaೆ ಮತು0 ಒಂದು �ೋiನವರನುL ಉaೆ0ೕRಸುವ Zೕ/ಯ�' <ಾಷಣ 4ಾQದು2 ಇದನುL ನನL �Sೈ� ದ�' :ೕQyೕ 4ಾQ�ೊಂQರುaೆ0ೕ�ೆ . ಒಂದೂ �ೋiನವರ <ಾವ�ೆ8ೆ ಧ�ೆc ತರುವಂaೆ ಮತು0 ಒಂದು �ೋiನವರನುL ಉaೆ0ೕRಸುವ

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Zೕ/ಯ�'<ಾಷಣ 4ಾQದ4ಾನ, 4ಾRಮುಖಮಂ/5ಗಳC 75ೕ . ಬಸವJಾಜ Sೊ4ಾTGಮತು0 75ೕ . ( . \ . ರ:4ಾRಮಂ/5ಗಳC ಇವರoೕnೆ �ಾನೂನು ಕ5ಮ�ೈ8ೊಳzಲುನನLದು{hಾ�"ಇರುತ01ೆ ."

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A perusal of the complaint and FIR would clearly indicate that the petitioner is alleged to have committed the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 (old Section 153A of IPC). Under identical circumstances, in relation to the offences punishable under Section 153-A of IPC, the Apex Court and this Court have held in the following judgments as under:

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Paragraphs 7 to 10 and 12 of the judgment of the Apex Court in Javed Ahmad Hajam v. State of M aharashtra [ (2024)4 SCC 156] read as under:

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"7. In Manzar Sayeed Khan, while interpreting Section 153-A, in para 16, this Court held thus: (SCC p. 9)

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"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

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prejudicial to the maintenance of harmony or is likely to disturb the public tranquillity. 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. "

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(emphasis supplied)

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8. This Court in Manzar Sayeed Khan referred to the view taken by Vivian Bose, J., as a Judge of the erstwhile Nagpur High Court in Bhagwati Charan Shukla v. Provincial Govt.3 A Division Bench of the High Court dealt with the offence of sedition under Section 124-A IPC and Section 4(1)

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of the Press (Emergency Powers) Act, 1931. The issue was whether a particular 9 article in the press tends, directly or indirectly, to bring hatred or contempt to the Government established in law. This Court has approved this view in its decision in Ramesh v. Union of India. In the said case, this Court dealt with the issue of applicability of Section 153-A IPC. In para 13, it was held thus: (Ramesh case, SCC p. 676)

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“13. ….. the effect of the words must be

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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 . … It is the standard of ordinary reasonable man or as they say in English law 'the man on the top of a Clapharm omnibus'. (Bhagwati Charan Shukla case, SCC OnLine MP para 67)"

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(emphasis supplied)

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Therefore, the yardstick laid down by Vivian Bose, J., will have to be applied while judging the effect of the words, spoken or written, in the context of Section 153-A IPC.

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9. We may also make a useful reference to a decision of this Court in Patricia Mukhim v. State of Meghalaya. Paras 8 to 10 of the said decision read thus: (SCC pp. 41-43)

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"8. ' It is of utmost importance to keep all speech free in order for the truth to emerge

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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 153A 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:

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9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquillity, the law needs to step in to prevent

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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 9 the existence of mens rea in order to succeed .

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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 r easoning.”

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(emphasis in original and supplied)

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10. Now, coming back to Section 153-A, clause (a) of sub-section (1) of Section 153-A IPC is attracted when by words, either spoken or written or by signs or by visible representations or otherwise, an attempt is made to promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities. The promotion of disharmony,

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enmity, hatred or ill will must be on the grounds of religion, race, place of birth, residence, language, caste, community or any other analogous grounds. Clause (b) of sub-section (1) of Section 153-A IPC will apply only w hen an act is committed 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.

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12. In Manzar Sayeed Khan, this Court has read "intention" as an essential ingredient of the said offence. The alleged objectionable words or expressions used by the appellant, on its plain reading, cannot promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities. The WhatsApp status of the appellant has a photograph of two barbed wires, below which it is mentioned that "AUGUST 5 — BLACK DAY — JAMMU & KASHMIR". This is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution of India. It does not reflect any intention to do something which is prohibited under Section 153-A. At best, it is a protest, which is a part of his freedom of speech and expression guaranteed by Article 19(1)(a)."

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Paragraphs 21 to 32 of the judgment of the Apex Court in Shiv Prasad Semwal v. State of U ttarakhand [(2024) 7 SCC 555] read

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as under:

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"21. It may be noted that the entire case as set out in the impugned FIR is based on the allegation that the Facebook news post uploaded by one journalist Mr Gunanand Jakhmola was caused to be published on Parvatjan news portal being operated by the appellant.

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22. Thus, essentially, we are required to examine whether the contents of the news report constitute any cognizable offence so as to justify the investigation into the allegations made in the FIR against the appellant.

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23. For the sake of ready reference, the contents of the disputed news article are reproduced hereinbelow:

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"Gunanand Jakhmola

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17-3-2020 at 30.05

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Trivender Uncle what amazing things you are doing?

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Uncle you are laying foundation stone of Art Gallery which is going to construct by acquiring government land.

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Uncle you are associating the mafias who are violating the decisions of Modi Government. Don't trap yourself with mafias, have you forgot the problems arisen out of marriage of Gupta brother's.

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Uncle you were not like this, what happened to you? Was the troubles arisen out of marriage of Gupta Brothers was not enough that you are now going to laying foundation stone of the Art Gallery which is going to construct by acquiring

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government land. Just think over it, or take report from LIU and other agencies about this Art Gallery which is going to construct on the acquired government land. This is a government land which is dismantled by mafias and your officers. Uncle you are innocent, anybody can use you. Advisers and officers surrounding you they are cunning.

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This cunning persons have brought you forward against the decisions of Modi Government. Uncle let I inform you for your knowledge that Modi Government means your honour has given sanction to planning for Singtali Project near Rishikesh. This project will reduce the distance between Kumau and Garhwal and also it will arrange sources of employment in mountains.World Bank is also giving money, but the program of Mafias in which you are going to participate on 20 March, that is an enemy of mountains. It has no concern with the well being of mountains. It is against the proposed project of Modi Government and your officers and advisers are in collusion with that. Please inquire it and then only you go. Note: Kindly see the invitation card given by mafias."

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24. As per the counter-affidavit filed on behalf of the State, after investigation, two substantive offences were retained by the investigating officer against the appellant,

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which are Sections 153-A and 504 read with Sections 34 and 120-B IPC.

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25. From a bare reading of the language of Section 153A IPC, it is clear that in order to constitute such offence, the prosecution must come out with a case that the words "spoken" or "written" attributed to the accused, created enmity or bad blood between different groups on the ground of religion, race, place of birth, residence, language, etc. or that the acts so alleged were prejudicial to the maintenance of harmony.

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26. Upon careful perusal of the offending news article, reproduced (supra), it is crystal clear that there is no reference to any group or groups of people in the said article. The publication focuses totally on the complainant imputing that he had encroached upon public land where the foundation stone laying ceremony was proposed at the hands of Hon'ble Chief Minister of Uttarakhand. 27. Apparently, the post was aimed at frustrating the proposed foundation stone laying ceremony on the land, of which the complainant claims to be the true owner. The post also imputes that the person who was planning the foundation stone ceremony was an enemy of mountains and had no concern with the well-being of the mountains.

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28. The learned Standing Counsel for the State tried to draw much water from these lines alleging that this portion of the post tends to create a sense of enmity and disharmony amongst people of hill community and the people of plains. However, the interpretation sought to be given to

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these words is far-fetched and unconvincing. The lines referred to supra only refer to the complainant, imputing that his activities are prejudicial to the hills. These words have no connection whatsoever with a group or groups of people or communities. Hence, the foundational facts essential to constitute the offence under Section 153-A IPC are totally lacking from the allegations as set out in e the FIR.

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29. In Manzar Sayeed Khan v. State of Maharashtra, this Court held that for applying Section 153-A IPC, the presence of two or more groups or communities is essential, whereas in the present case, no such groups or communities were referred to in the news article.

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30. The other substantive offence which has been applied by the investigating agency is Section 504 IPC. The said offence can be invoked when the insult of a person provokes him to break public peace or to commit any other offence. There is no such allegation in the FIR that owing to the alleged offensive post attributable to the appellant, the complainant was provoked to such an extent that he could indulge in disturbing the public peace or commit any other offence. Hence, the FIR lacks the necessary ingredients of the said offence as well.

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31. Since we have found that the foundational facts essential for constituting the substantive offences under Sections 153-A and 504 IPC are not available from the admitted allegations of prosecution, the allegations qua the subsidiary offences under Sections 34 and 120-B IPC would also be non est.

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32. The complainant has also alleged in the FIR that the accused intended to blackmail him by publishing the news article in question. However, there is no allegation in the FIR that the accused tried to extract any wrongful gain or valuable security from the complainant on the basis of the mischievous/ malicious post."

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3. Paragraphs 10 and 12 of the judgment of the Apex Court in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431] read as under:

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"10. Section 153-A was amended by the Criminal and Election Laws (Amendment) Act, 1969 (Act No. 35 of 1969). It consists of three clauses of which clauses (a) and (b) alone are material now. By the same Amending Act subsection (2) was added to Section 505 of the Indian Penal Code. Clauses (a) and (b) of Section 153-A and Section 505(2) are extracted below:

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"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—

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(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

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enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities, or

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(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

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(c) * * *

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shall be punished with imprisonment which may extend to three years, or with fine, or with both.

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* * *

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505. (2) Statements creating or promoting enmity, hatred or ill will between classes.— Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both."

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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

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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.

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12. The main distinction between the two offences is that while publication of the words or representation is not necessary under the former, such publication is sine qua non under Section 505. The words "whoever makes, publishes or circulates" used in the setting of Section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, anyone who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153-A also and then that section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction."

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Paragraphs 8 to 10 of the judgment of this Court in Suresha v. State of Karnataka [Crl.P.No.5694/2024 DD 20.09.2024] read as

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under:

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"8. The offences alleged are the ones punishable under Sections 153A, 504, 506 and others relating to unlawful assembly. Whether this would become the ingredients of Section 153A of the IPC is to be noticed. Section 153A of the IPC reads as follows:

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“ 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—

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(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

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(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

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(c) organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use

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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,

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shall be punished with imprisonment which may extend to three years, or with fine, or with both.

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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.”

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Section 153A makes it an offence if enmity is promoted between different groups of religion. The present case is a classic illustration of misuse of Section 153A of the IPC. It is a case of counterblast to a complaint registered by these petitioners. The defence is that the petitioners were shouting

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Bharath Matha Ki Jai and praising the Prime Minister of the nation. The allegation by the complainant does not even refer to any of those things. To protect the skin of the complainant and others, the skin of the petitioners is sought to be ripped off. It does not meet even a single ingredient of Section 153A of the IPC. A pure case of counterblast is sought to be projected as a crime under Section 153A of the IPC. The ingredients that are necessary to bring home the complaint under Section 153A need not detain this Court for long or delve deep into the matter.

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9. The Apex Court in the case of JAVED AHMAD HAJAM v. STATE OF MAHARASHTRA [(2024) 4 SCC 156] , has held as follows:

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“…. …. ….

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10. Now, coming back to Section 153-A, clause (a) of sub-section (1) of Section 153AIPC is attracted when by words, either spoken or written or by signs or by visible representations or otherwise, an attempt is made to promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities. The promotion of disharmony, enmity, hatred or ill will must be on the grounds of religion, race, place of birth, residence, language, caste, community or any other analogous grounds. Clause (b) of sub-section (1) of Section 153-AIPC will apply only when an

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act is committed 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.

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11. Now, coming to the words used by the appellant on his WhatsApp status, we may note here that the first statement is that August 5 is a Black Day for Jammu and Kashmir. 5-8-2019 is the day on which Article 370 of the Constitution of India was abrogated, and two separate Union Territories of Jammu and Kashmir were formed. Further, the appellant has posted that “Article 370 was abrogated, we are not happy”. On a plain reading, the appellant intended to criticise the action of the abrogation of Article 370 of the Constitution of India. He has expressed unhappiness over the said act of abrogation. The aforesaid words do not refer to any religion, race, place of birth, residence, language, caste or community. It is a simple protest by the appellant against the decision to abrogate Article 370 of the Constitution of India and the further steps taken based on that decision. The Constitution of India, under Article 19(1)(a), guarantees freedom of speech and expression. Under the said guarantee, every citizen has the right to offer criticism of the action of abrogation

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of Article 370 or, for that matter, every decision of the State. He has the right to say he is unhappy with any decision of the State.

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12. In Manzar Sayeed Khan [Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417] , this Court has read “intention” as an essential ingredient of the said offence. The alleged objectionable words or expressions used by the appellant, on its plain reading, cannot promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities. The WhatsApp status of the appellant has a photograph of two barbed wires, below which it is mentioned that “AUGUST 5 — BLACK DAY — JAMMU & KASHMIR”. This is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution of India. It does not reflect any intention to do something which is prohibited under Section 153-A. At best, it is a protest, which is a part of his freedom of speech and expression guaranteed by Article 19(1)(a).

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13. Every citizen of India has a right to be critical of the action of abrogation of Article 370 and the change of status of Jammu and Kashmir. Describing the day the abrogation happened as a “Black Day” is an expression

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of protest and anguish. If every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy, which is an essential feature of the Constitution of India, will not survive.

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14. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a). Every individual must respect the right of others to dissent. An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21. But the protest or dissent must be within four corners of the modes permissible in a democratic set up. It is subject to reasonable restrictions imposed in accordance with clause (2) of Article 19. In the present case, the appellant has not at all crossed the line.

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15. The High Court has held [Javed Ahmed Hajam v. State of Maharashtra, 2023 SCC OnLine Bom 819] that the possibility of stirring up the emotions of a group of people cannot be ruled out. The appellant's college teachers, students, and parents were allegedly members

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of the WhatsApp group. As held by Vivian Bose, J., the effect of the words used by the appellant on his WhatsApp status will have to be judged from the standards of reasonable women and men. We cannot apply the standards of people with weak and vacillating minds. Our country has been a democratic republic for more than 75 years. The people of our country know the importance of democratic values. Therefore, it is not possible to conclude that the words will promote disharmony or feelings of enmity, hatred or ill will between different religious groups. The test to be applied is not the effect of the words on some individuals with weak minds or who see a danger in every hostile point of view. The test is of the general impact of the utterances on reasonable people who are significant in numbers. Merely because a few individuals may develop hatred or ill will, it will not be sufficient to attract clause (a) of sub-section (1) of Section 153-AIPC.

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16. As regards the picture containing “Chand” and below that the words “14th August-Happy Independence Day Pakistan”, we are of the view that it will not attract clause (a) of subsection (1) of Section 153-AIPC. Every citizen has the right to extend good wishes to the citizens of the other countries on their

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respective Independence Days. If a citizen of India extends good wishes to the citizens of Pakistan on 14th August, which is their Independence Day, there is nothing wrong with it. It is a gesture of goodwill. In such a case, it cannot be said that such acts will tend to create disharmony or feelings of enmity, hatred or ill will between different religious groups. Motives cannot be attributed to the appellant only because he belongs to a particular religion.

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17. Now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution.

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18. For the same reasons, clause (b) of subsection (1) of Section 153-AIPC will not be attracted as what is depicted on the WhatsApp status of the appellant cannot be said to be prejudicial to the maintenance of harmony among various groups as stated therein. Thus, continuation of the prosecution of the appellant for the offence punishable under Section 153AIPC will be a gross abuse of the process of law.”

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(Emphasis supplied)

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The Apex Court, in a subsequent judgment, in the case of SHIV PRASAD SEMWAL v. STATE OF UTTARAKHAND [2024 SCC OnLine SC 322], has held as follows:

¶211

“….

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22. It may be noted that the entire case as set out in the impugned FIR is based on the allegation that the Facebook news post uploaded by one journalist Mr. Gunanand Jakhmola was caused to be published on Parvatjan news portal being operated by the appellant.

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23. Thus, essentially, we are required to examine whether the contents of the news report constitute any cognizable offence so as to justify the investigation into the allegations made in the FIR against the appellant.

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24. For the sake of ready reference, the contents of the disputed news article are reproduced hereinbelow:—

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“Gunanand Jakhmola 17^th March 2020 at 30.05

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Trivender Uncle what amazing things you are doing?

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Uncle you are laying foundation stone of Art Gallery which is going to construct by acquiring government land.

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Uncle you are associating the mafias who are violating the decisions of Modi Government.

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Don't trap yourself with mafias, have you forgot the problems arisen out of marriage of Gupta brother's.

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Uncle you were not like this, what happened to you? Was the troubles arisen out of marriage of Gupta Brothers was not enough that you are now going to laying foundation stone of the Art Gallery which is going to construct by acquiring government land. Just think over it, or take report from LIU and other agencies about this Art Gallery which is going to construct on the acquired government land. This is a government land which is dismantled by mafias and your officers. Uncle you are innocent, anybody can use you. Advisers and officers surrounding you they are cunning.

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This cunning persons have brought you forward against the decisions of Modi Government.

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Uncle let I inform you for your knowledge that Modi Government means your honour has given sanction to planning for Singtali Project near Rishikesh. This project will reduce the distance between Kumau and Garhwal and also it will arrange sources of employment in mountains. World bank is also giving money, but the program of Mafias in which you are going to participate on 20 March, that is an enemy of mountains. It has no concern with the well being of mountains. It is against the proposed project of Modi Government and your officers and advisers are in collusion with that. Please inquire it and then only you go.

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Note: Kindly see the invitation card given by mafias.”

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25. As per the counter affidavit filed on behalf of the State, after investigation, two substantive offences were retained by the Investigating Officer against the appellant, which are Sections 153A and 504 read with Sections 34 and 120B IPC.

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26. From a bare reading of the language of Section 153A IPC, it is clear that in order to constitute

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such offence, the prosecution must come out with a case that the words ‘spoken’ or ‘written’ attributed to the accused, created enmity or bad blood between different groups on the ground of religion, race, place of birth, residence, language, etc., or that the acts so alleged were prejudicial to the maintenance of harmony.

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27. Upon careful perusal of the offending news article, reproduced (supra), it is crystal clear that there is no reference to any group or groups of people in the said article. The publication focuses totally on the complainant imputing that he had encroached upon public land where the foundation stone laying ceremony was proposed at the hands of Hon'ble Chief Minister of Uttarakhand. Apparently, the post was aimed at frustrating the proposed foundation stone laying ceremony on the land, of which the complainant claims to be the true owner. The post also imputes that the person who was planning the foundation stone ceremony was an enemy of mountains and had no concern with the well-being of the mountains.

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28. Learned standing counsel for the State tried to draw much water from these lines alleging that this portion of the post tends to create a sense of enmity and disharmony amongst people of hill community and the people of plains. However, the interpretation sought to be given to these words is far-fetched and unconvincing. The lines referred to supra only refer to the complainant, imputing that his activities are prejudicial to the hills. These words have no connection

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whatsoever with a group or groups of people or communities. Hence, the foundational facts essential to constitute the offence under Section 153A IPC are totally lacking from the allegations as set out in the FIR.”

¶239

29. In the case of Manzar Sayeed Khan v. State of Maharashtra, this Court held that for applying Section 153A IPC, the presence of two or more groups or communities is essential, whereas in the present case, no such groups or communities were referred to in the news article.

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30. The other substantive offence which has been applied by the investigating agency is Section 504 IPC. The said offence can be invoked when the insult of a person provokes him to break public peace or to commit any other offence. There is no such allegation in the FIR that owing to the alleged offensive post attributable to the appellant, the complainant was provoked to such an extent that he could indulge in disturbing the public peace or commit any other offence. Hence, the FIR lacks the necessary ingredients of the said offence as well. Since we have found that the foundational facts essential for constituting the substantive offences under Sections 153A and 504 IPC are not available from the admitted allegations of prosecution, the allegations qua the subsidiary offences under Sections 34 and 120B IPC would also be non est.

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31. The complainant has also alleged in the FIR that the accused intended to blackmail him by publishing the news article in question. However, there is no allegation in the FIR that the accused tried to extract any wrongful gain or valuable security from the complainant on the basis of the mischievous/malicious post.

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32. In the case of State of Haryana v. Bhajan La l² , this Court examined the principles governing the scope of exercise of powers by the High Court in a petition under Article 226 of the Constitution of India and under Section 482 CrPC seeking quashing of criminal proceedings and held as follows:—

¶246

“ 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

¶252

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

¶253

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

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reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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33. Tested on the touchstone of the above principles, we are of the firm view that allowing continuance of the proceedings pursuant to the impugned FIR bearing No. 31 of 2020 registered at P.S. Muni Ki Reti, District Tehri Garhwal against the appellant is nothing but gross abuse of process of law because the allegations as set out in the FIR do not disclose necessary ingredients of any cognizable offence. Hence, the impugned FIR and all proceedings sought to be taken against the appellant are hereby quashed and set aside.”

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(Emphasis supplied)

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The Apex Court did not permit further investigation even in a crime before it. The FIR itself was quashed, as the High Court of Uttarakhand had rejected the petition which challenged the FIR.

¶267

10. In the light of the judgments of the Apex Court and unequivocal facts narrated hereinabove, what would unmistakably emerge is high improbability of the happening of the incident even, against the 2^nd respondent/complainant. The complaint cannot but be held to be a counter-blast to what the petitioners have registered, not against the complainant but against several accused named therein. It would be apposite to refer to a judgment of the High Court of Andhra Pradesh, which lays down certain necessary ingredients to drive home an offence under Section 153A of the IPC even prima facie. The High Court of Andhra Pradesh in KOLLU ANKABABU v. TIRUPATHI RAMESH [2022 SCC OnLine AP 2812] , has held as follows:

¶268

“…. …. ….

¶269

17. The ingredients necessary for making out an offence under Section 153-A(a) is that the accused person by words either spoken or written etc., 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 on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.

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18. The ingredients necessary for making out an offence under Section 153-A(b) is the commission of 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.

¶274

19. The ingredients necessary for an offence under Section 153-A(c) is to organise any exercise, movement, drill etc., so that participates in such activities can be trained to use violence or criminal force 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 communities.

¶275

20. The language in all the three sub-clauses of Section 153-A require the following conditions to be met before any offence can be said to have been committed within this provision:—

¶276

a) The actions should cause enmity between groups; Ill will against one group would not attract the above provisions.

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b) These actions should be committed with the intention of causing such enmity.

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c) This provision would be applicable only where enmity is caused on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.

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d) The term “or any other ground whatsoever” would have to be read in tandem with the preceding words and as such the scope of this term would be that the grounds would only have to be grounds akin to the preceding grounds set out in the provision.

¶283

e) The groups between whom such enmity or disharmony or hatred or ill-will is caused would be groups defined on the basis of their religion, race, language, place of birth, caste or community.

¶284

f) Differences or ill-will caused between two groups which are not defined on the basis of the above requirements would not attract the provisions of Section 153A IPC.”

¶285

(Emphasis supplied)

¶286

In the light of the afore-narrated facts and the judgments extracted supra, permitting even investigation into the case at hand would be prima facie permitting investigation into the sloganeering of Bharath Matha Ki Jai inter alia, which can by

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no stretch of imagination be promoting disharmony or enmity amongst religions. Sloganeering Bharath Matha Ki Jai would only lead to harmony and never a discord. "

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If the impugned complaint and FIR are examined bearing in mind the principles enunciated in the aforesaid judgments, it is clear that except stating that the properties are Wakf properties and that the petitioner is alleged to have stated that wherever a stone is thrown, a Wakf property is found, there are no other allegations in the impugned complaint so as to attract the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 by the petitioner. Under these circumstances, in the light of vague, bald, omnibus, cryptic and laconic allegations made in the impugned complaint which does not disclose commission of the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 coupled with the principles enunciated by the Apex Court and this Court in the aforementioned judgments, I am of the opinion that continuation of the proceedings insofar as it relates to the petitioner would amount to abuse of the process of law warranting interference in the present petition.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed;

¶298

(ii) The impugned FIR dated 04.11.2024 in Crime No.208/2024 pending on the file of the Civil Judge and JMFC, Savanur, Haveri District, insofar as the petitioner is concerned, is hereby quashed; .

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(iii) It is needless to state that this order is restricted to the impugned complaint and will apply to the petitioner/accused No.1 only and shall not apply to the remaining accused.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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hkh. List No.: 1 Sl No.: 5

Sri Basavaraj Bommai v. State of Karnataka

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Sri Basavaraj Bommai v. State of Karnataka

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