Bombay High Court
Case Details
( 1 ) cra 111.21 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.111 OF 2021 Taher Hussain Mainoddin Sayyed Age: 46 years, Occu: Business, R/o Musa Nagar, Udgir, Dist. Latur. V/s. … Applicant The State of Maharashtra … Respondent ... Advocate for Applicant : Mr. S.S. Panale APP for Respondents-State : Mr. G.O. Wattamwar … RESERVED ON : PRONOUNCED ON : CORAM : M.G. SEWLIKAR, J. 20th December, 2021 27th May, 2022 ORDER:- Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Udgir below (Exhibit-6) in Sessions Case No.48/2019, whereby, the application for discharge of the accused/applicant herein is rejected, this revision is preferred by the accused/original applicant. 2. Facts leading to this application are that informant is the Police Inspector of Rural Police Station, Udgir. 3. It is alleged in the FIR dated 4th October, 2017 that on 15th ( 2 ) cra 111.21 September, 2017 political party AIMIM, Jamiyat-e-Ulema-e-Hind, Udgir and other Muslim organisations at Udgir had resorted to mute protest on account of murder of journalist Gauri Lankesh and on account of the atrocities inflicted on the Muslim community in Myanmar. This mute procession was arranged on 15th September, 2017 at 2.00 pm under the leadership of Taher Hussain Mainoddin Sayyed who is the District President of AIMIM Party at Udgir. About 1700 to 1800 persons belonging to Muslim community had participated in the said procession. Video recording of the said procession was also made. The procession was carried out silently without any disturbance. Some Muslim leaders gave speeches at around 3.30 pm to 5.00 pm. Applicant Taher Hussain Mainoddin Sayyed also delivered a speech in which he made some statements with an intention to promote enmity, hatred, ill-will between different religious groups in the society. He made the statement that “Yaha ka musalman Hindustan ko aazad karna janta hai, to Hindustan ko khatam karne ki bhi takat rakhta hai”. These statements are anti-national. The informant had heard these statements having been made by the applicant Taher Hussain Mainoddin Sayyed. The speeches of these leaders were video-graphed. On these allegations FIR came to be lodged on 4th October, 2017 on the basis of which offence under Section 153(A)(1)(A), 153(B)(1)(A)(B), 188 of the I.P.C. and under Section 134 of the Maharashtra Police Act, 2012 came to be registered. ( 3 ) cra 111.21 4. During the investigation police added Section 124-A of the I.P.C. against the accused. After completion of investigation charge-sheet was filed in the Court of learned Additional Sessions Judge, Udgir. 5. On 4th February, 2020 applicant filed application for discharge
Facts
(Exhibit-6) in the record of the trial Court alleging therein that FIR has been filed after 19 days. Delay is not explained. This false case has been filed at the behest of Bajrang Dal. The applicant is the Councillor of Udgir Municipal Council and is an active member of a political party. On perusal of the entire charge-sheet it cannot be said that the offences under Section 153(A)(1)(A), 153(B)(1)(A)(B), 188 of the I.P.C. and under Section 134 of the Maharashtra Police Act, 2012 are made out. The allegations made in the FIR do not constitute any of the aforesaid offences. The applicant, therefore, prays for discharge. This application was filed under Section 227 of the I.P.C. 6. The learned trial Court after hearing both the sides rejected the application observing that the words “Yaha ka musalman Hindustan ko aazad karna janta hai, to Hindustan ko khatam karne ki bhi takat rakhta hai” were made in order to promote enmity, hatred in the Hindu-Muslim community as well as against the nation. He, therefore, rejected the application. This order is impugned in this revision. ( 4 ) cra 111.21 7.
Legal Reasoning
It is settled law that for framing charge against the accused in a case tried by the Court of Sessions the material collected by the prosecution should give rise to grave suspicion as to the guilt of the accused. If the material collected by the prosecution falls within the realm of the suspicion in that case Court is entitled to discharge the accused. In the case of State of Bihar v/s. Ramesh Singh reported in AIR 1977 SUPREME COURT 2018, the Hon’ble Supreme Court held thus: “4. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which- (b) is exclusively triable by the Court, he shall frame in writing a ( 7 ) cra 111.21 charge against the accused'-', as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence ( 8 ) cra 111.21 which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227.” 13. In the case of Union of India v/s. Prafulla Kumar Samal and Anr. reported in AIR 1979 SUPREME COURT 366. The Hon’ble Supreme Court relying on the case of State of Bihar v/s. Ramesh Singh cited (supra) held thus: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against ( 9 ) cra 111.21 the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth- piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 14. In the case of P. Vijayan v/s. State of Kerala and Anr. reported in (2010) Supreme Court Cases 398, the Hon’ble Apex Court held thus: ( 10 ) cra 111.21 “10. ...If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.” 15. Thus, the test to determine for framing charge is whether material collected by the prosecution discloses the grave suspicion against the accused. If it is within the realm of suspicion, the Judge will be within his right to discharge the accused. 16. Before adverting to the issue involved in the case, it will be apposite to have a look at Section 124-A of the I.P.C. It reads thus: S.124-A Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 2*** the Government established ( 11 ) cra 111.21 by law in 3[India], 4*** shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.-- The expression "disaffection" includes disloyalty and all feelings of enmity. Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.] 17. A plain reading of this section would show that the section would be attracted only when the accused brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India by words either written or spoken or visible signs or representations etc. 18. Coming to the case of the prosecution, it is alleged that the applicant in his speech made the statement that “Yaha ka musalman Hindustan ko aazad karna janta hai, to Hindustan ko khatam karne ki bhi takat rakhta hai”. Other witnesses also stated that this statement was made ( 12 ) cra 111.21 by the applicant. Thus, prima facie, there is material to show that the applicant had uttered these words. The question is whether these words were intended to bring or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. In the case of Kedar Nath Singh v/s. State of Bihar reported in AIR 1962 SC 955. It has been held thus: “24. ....It has not been questioned before us that the fundamental right guaranteed by Art.19(1)(a) of the freedom of speech and expression is not an absolute right. It is common ground that the right is subject to such reasonable restrictions as would come within the purview of clause (2), which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. With reference to the constitutionality of s.124A or s.505 of the Indian Penal Code, as to how far they are consistent with the requirements of clause (2) of Art.19with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc., which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law" has to be distinguished from the person's for the time being engaged in carrying on the administration. "Government established by law" is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition ( 13 ) cra 111.21 of the stability of the State. That is why 'sedition', as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State. Hence any acts within the meaning of s.124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term 'revolution', have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence. 25. It has not been contended before us that if a speech or a ( 14 ) cra 111.21 writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of 'sedition'. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But, in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right ( 15 ) cra 111.21 guaranteed under Art.19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. 26. ....There can be no doubt that apart from the provisions of (2) of Art.19, Sections 124A and 505 are clearly violative of Art.19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, clause (2) of Art.19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended clause (2), quoted above, the expression "in the interest of... public order" are words of great amplitude and are much more comprehensive than the expression "for the maintenance of", as observed by this Court in the case of Virendra v. The State of Punjab. Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Art. 19(1)(a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or ( 16 ) cra 111.21 have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.” 19. In the case of Balwant Singh cited (supra) after the assassination of the Hon’ble Prime Minister Indira Gandhi the assailants raised the slogans (1) Khalistan Zindabad. (2) Raj Karega Khalsa, and (3) Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Kara Da. The Hon’ble Apex Court held thus: “8. ...Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever the charge of sedition can be founded. It is ( 17 ) cra 111.21 not the prosecution case that the appellants were either leading a procession or were otherwise raising the slogans with the intention to incite people to create disorder or that the slogans in fact created any law and order problem. It does not appear to us that the police should have attached much significance to the casual slogans raised by two appellants, a couple of times and read to much into them. The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that inspite of the fact that the appellants raised the slogans a couple of times, the people, in general, were un-affected and carried on with their normal activities. The casual raising of the Slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India, Section 124A IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case. 9. In so far as the offence under Section 153A IPC is concerned, it provides for punishment for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious, racial, language or regional groups or castes or communities. In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or effect public tranquility, that the law needs to step in to prevent such an activity. ( 18 ) cra 111.21 It is further held in this authority thus:- The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.” 20. In the case of Sanskar Marathe cited (supra) the allegations were that one Assem Trivedi a political cartoonist and social activist through his cartoons, not only defamed Parliament, the Constitution of India and the Ashok Emblem but also tried to spread hatred and disrespect against the Government and published the said cartoons on “India Against Corruption” website. This Court relying on the case of Balwant Singh and Kedar Nath Singh cited (supra) held that: “15. On a perusal of the aforesaid judgments, it is clear that the provisions of section 124A of IPC cannot be invoked to penalize criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention ( 19 ) cra 111.21 of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. 16. Cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm. Having seen the seven cartoons in question drawn by the third respondent, it is difficult to find any element of wit or humour or sarcasm. The cartoons displayed at a meeting held on 27 November 2011 in Mumbai, as a part of movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm. But for that reason, the freedom of speech and expression available to the third respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder.” 21. From the above authorities of the Hon’ble Supreme Court the principle that emerges is that any act within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to ( 20 ) cra 111.21 public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. 22. In the case of Asit Kumar Sen Gupta cited (supra), the facts were completely different. The appellant-Asit Kumar in conspiracy with the members of Communist Party of India (Maoist) used to spread hatred and contempt and excited/attempted to excite disaffection towards the Government established by law in India either by speaking or writing against the Government. He was possessed of Maoist literature in conspiracy with persons belonging to Communist Party of India (Maoist), a banned organisation and used to incite the people to become member of the said banned orgnisation by involving in terrorist act as defined under the Act of 1967. He was also alleged of supporting terrorist organization to further his activity by encouraging support for the said banned organization. He was also alleged of being a member of unlawful organization or taken part in meetings or activities of such organization or contributed or received or solicited ( 21 ) cra 111.21 contribution for the purpose of such organization. Several suspicious persons used to frequently visit the appellant’s house. He used to incite and provoke them to join Communist Party of India (Maoist) to bring a Government headed by Maoist by throwing out the present capitalist Government by armed rebellion. While conducting the survey of child labours the appellant used to incite and provoke Ramesh Dewangan by saying that to eliminate the corrupt capitalist Government, we have to unite the youths under the Maoist Organization namely, the Communist Party of India (Marxist Leninist) People War Group. There was evidence to show that appellant had incited people for joining the Maoist organization for throwing out the Government established by law by armed rebellion This is not the factual situation in the case at hand. In para 25 to 26 it has been held thus: “25. In the matter of Nazir Khan and others Vs. State of Delhi reported in (2003) 8 Supreme Court Cases 461, the Hon'ble Supreme Court has once again dissected the meaning and purport of the charge under Section 124-A of IPC i.e. "Sedition". It has been held in para-37 of the said judgment thus:- 37. Section 124-A deals with "sedition". Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice ( 22 ) cra 111.21 into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. "Sedition" has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. 26. It is apt to underline that in the above referred judgment, the Hon'ble Supreme Court has said that the very tendency of sedition is to incite the people to insurrection and rebellion and the objects of sedition generally are to induce discontent and stir up opposition to the Government and to bring administration of justice into contempt.” 23. These observations instead of helping the prosecution go against the prosecution. As held in the case of Asit Kumar Sen Gupta cited (supra), the objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. "Sedition" has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. ( 23 ) cra 111.21 24. In the case at hand, as held earlier, there is material to show that the applicant had made the statement that “Yaha ka musalman Hindustan ko aazad karna janta hai, to Hindustan ko khatam karne ki bhi takat rakhta hai”. From this statement, it cannot be said that the applicant had the intention to induce discontent and insurrection and to stir up the opposition. By this statement, there was no possibility of civil war. It is pertinent to note that the applicant had participated in the mute protest against the atrocities inflicted on the Muslims in Myanmar. The statement appears to have been made in connection with the atrocities allegedly inflicted upon the Muslims in Myanmar. Therefore, it cannot be said that the applicant had the intention to subvert the government established by law by bringing in hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. 25. On the basis of the aforesaid principle laid down by the Hon’ble Supreme Court, if the statement made by the applicant is considered, it cannot be said that it had the tendency to subvert the government established by law by bringing in hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. By no stretch of imagination it can be said that simply by using these words the applicant had the intention to subvert the Government. Therefore, offence under section 124-A cannot be made out. ( 24 ) cra 111.21 26. For attracting Section 153-A, the words spoken or written should have the intention to promote the feelings of hatred or ill will between different religious social, language or regional groups or castes or communities. There must be either intention to promote such feelings. The Hon’ble Supreme Court in the case of Balwant Singh cited (supra) has held that written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or affect public tranquility, that the law needs to step in to prevent such an activity. In the case at hand the statement made by the applicant has the tendency of creating public disorder or disturbance of law and order or effect public tranquility. Therefore, the learned Judge was right in holding that offence under Section 153-A is made out. However, the learned trial Court Judge committed an error in holding that offence under Section 124-A is made out. In this view of the matter, the following order is passed: ORDER: Revision is partly allowed. Order of the trial Court is modified. Applicant is discharged under Section 124-A of the I.P.C. Rest of the order of the trial Court is confirmed. I) II) III) IV) mub [M.G. SEWLIKAR, J.]
Arguments
Heard learned counsel Shri Panale for the applicant and Shri Wattamwar learned APP for the State. 8. Learned counsel Shri Panale submitted that the words uttered do not constitute offence under Section 124-A of the I.P.C. He submitted that in order to bring the allegations within the ambit of Section 124-A of the I.P.C. there has to be material on record to show that these words were uttered by the applicant with an intention to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. He submitted that by no stretch of imagination the words uttered were with a view to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. He further submitted that in the case of Sanskar Marathe v/s. The State of Maharashtra & Ors. reported in 2015 ALL MR (Cri) 4637, this Court has given directions to the home department seeking legal opinion in writing from the Law Officer of the District followed by a legal opinion of Public Prosecutor of the State to be obtained within two weeks. He submitted that this exercise has not been done and, therefore, Section 124-A of the I.P.C. cannot be invoked. He also submitted that other sections are also not attracted on the basis of the allegations made in the FIR. He placed reliance on the case of Balwant Singh and Anr. v/s. State of Punjab reported in (1995) 3 Supreme Court Cases 214. ( 5 ) cra 111.21 9. Learned APP Shri Wattamwar submitted that these words were uttered with a view to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India. The words are so provocative that any ordinary man would resort to violence. These words are capable of bringing into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law. He submitted that all the witnesses have stated in unison that the applicant made these statements. He placed reliance on the case of Asit Kumar Sen Gupta v/s. State of Chhatisgarh. 10. I have given thoughtful consideration to the submissions made by the learned counsel on both the sides. 11. Chapter XVIII of the Code of Criminal Procedure deals with trial before the Court of Sessions. Section 225 speaks about the trial to be conducted by the Public Prosecutor. Section 226 of the CrP.C. speaks of opening the case for prosecution. Section 227 of the Cr.P.C. deals with the discharge of the accused. Section 227 reads thus: S.227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the ( 6 ) cra 111.21 Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 12.