IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940
Bail Appl..No. 7091 of 2018
AGAINST THE ORDER/JUDGMENT IN CRMC 1707/2018 of SESSIONS COURT,
ERNAKULAM DATED 17-09-2018
CRIME NO. 1564/2018 OF Ernakulam Central Police Station ,
PETITIONERS/A1 AND A2:
1 YAHIYA THANGAL,
AGED 44 YEARS,
ATHINAYIL HOUSE, PERUMPILAVU AMSOM,
THRISSUR DISTRICT (OFFICE BEARER, POPULAR FRONT).
2 AJMAL ISMAIL,
AGED 35 YEARS, S/O.MUHAMMED ISMAIL,
PUTHUPARAMBIL, THANIPPADAM, MANNAM P.O.,
NORTH PARAVOOR(OFFICE BEARER SDPI).
SRI.V.JOHN SEBASTIAN RALPH
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031.
PP SRI.S SAJJU
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.11.2018, THE
COURT ON ON 22.11.2018 PASSED THE FOLLOWING:
Petitioners are accused Nos.1 and 2 in Crime No.1564 of 2017 of
Central Police Station, Ernakulam for offences punishable under sections
143, 147, 149, 153A, 189, 283, 298 and 332 of the Indian Penal Code.
2. It is alleged by the prosecution that, on 29.05.2017 at about
11.30a.m., petitioners herein, who are the office bearers of an association by
name “Muslim Ekopana Samidhi”, conducted a march to the High Court of
Kerala, at Ernakulam, protesting against a judgment delivered by the
Division Bench of High Court in a case known as Hadiya case. In that case
Division Bench had annulled the marriage of a girl who had converted into
Islam. According to the petitioners, since the judgment was an intrusion
into the fundamental right of a citizen to profess and follow any religion,
citizens were agitated. About 3000 persons participated in the procession.
When it reached near the High Court, it was blocked by the police.
Participants used force to remove the barricades. Police used water
cannons and since it failed, resorted to the lathi charge. Crime was
registered against the petitioners and about 3000 identifiable persons. No
person was arrested at the spot.
3. In the meanwhile, apprehending arrest in connection with the
above crime, petitioners have approached this Court contending that, they
are sought to be falsely implicated, that it was a peaceful procession and
that, they have not raised any provocative slogans or made any provocative
speeches. It was also contended that, no act was committed by them on that
day which had the propensity to promote enmity between different groups
of persons on grounds of religion, race, place of birth etc and has not done
any act prejudicial to the maintenance of harmony.
4. Opposing the application, senior Public Prosecutor made
available the case diary. It was alleged that, about 3000 persons blocked
the road and raised slogans, which were highly provocative, personally
against the Judges who constituted the Division Bench and also against the
judgment. The slogans raised by the participants with the approval of the
organizers were sufficient to incite enimity between different groups. They
pulled down the barricades. They pelted stones at the police and two police
officers sustained injury. One had a bleeding from the ear and another had
injury on his left eye. Thereafter the police used water cannons. Since it
was not effective to control the group, police had to resort to lathi charge.
5. It seems that the petitioners moved the Sessions Court seeking
anticipatory bail. It was held by the Sessions Judge that the ingredients of
section 153A IPC were not prima facie attracted, though ingredients of
section 332 IPC were available.
6. It was contended by the learned counsel for the petitioners that,
section 153A IPC was not attracted in the case at hand. It was contended
that, to attract section 153A IPC, by words either spoken or written, or by
signs or by visible representation or otherwise, one should promote or
attempt to promote, on grounds of religion, race, place of birth, residence
etc or any other ground whatsoever, disharmony or feelings of enmity,
hatred or ill-will between different religious groups or communities. It can
also be attracted when the act is committed which is prejudicial to the
maintenance of harmony between two groups as mentioned above. It was
contended that, in the case at hand, the group were protesting against the
judgment which according to them was not correctly decided. Hence, no act
which would attract section 153A IPC was committed. To substantiate it,
the learned counsel for the petitioners relied on the decision in Bijumon v.
The State of Kerala and Ors. (2018(3) KLT 627). In that, learned single
judge of this Court had held that the essence of the offence under section
153A IPC was promotion of enmity between different groups on grounds of
religion, race, place of birth, residence etc and doing acts prejudicial to
maintenance of harmony. Real intention to incite one group or community
against another is absolutely essential. It was necessary that at least two
groups or communities should be involved. Merely inciting the feelings of
one community or group without any reference to any other community or
group cannot attract the provisions of section 153A IPC, it was held.
7. Investigating agency has produced a copy of the pamphlet, which
was circulated by the Muslim Ekopana Samidhi under the heading of “High
Court March” dated “29.05.2017”. It contains the various slogans raised in
the march. The above pamphlet contained two page slogans, most of which
referred to the decision of the Division Bench. Few of the slogans referred to
the Judges, who constituted the Bench which rendered the judgment, by
name. Atleast 3 slogans are relevant for the consideration of this bail
application and to consider whether there is any scope of invocation of
section 153A IPC.
8. One of the slogan was that, when persons are getting
enlightened by the Muslim tenements and converts to Islam, RSS was
getting agitated and Judges who support them are dangerous to the country.
Judges shall not decide cases with reference to Vedas or Puranas. The
Judge, who denies the fundamental rights only to Muslims are reminded
that, they are being paid from public money and not by RSS. Without much
elaboration, prima facie, it appears that, these three slogans specifically,
referred to another community. This definitely is sufficient to prima facie
hold that the offence under section 153A IPC is liable to be invoked.
9. The above clearly shows that highly derogatory, contematious
and unwarranted comments were made not only against the judicial system,
but against the Honourable Judges who constituted the Bench. One may
criticize the Judgment but not the Judge. This tendency has definitely to be
curbed with iron hand and nipped in the bud. It is also to be held that, there
are materials to support the offence under section 332IPC.
10. Learned counsel for the petitioners alternatively contended that,
even if the petitioners herein are liable to be questioned, they are entitled to
get notice under section 41A Cr.P.C before they are questioned. Learned
counsel for the petitioners relied on the decision of Arnesh Kumar v. State
of Bihar and Another (2014(3) KHC 69) , wherein, it was held that, in a
proceeding under section 498A IPC or section 4 of Dowry Prohibition Act,
the police is liable to give notice under section 41A Cr.P.C to the persons
who are likely to be implicated. It was also held that the above decision
applies not only in the above cases but, in every case wherein the offence is
punishable with an imprisonment with a term of less than 7 years or which
may extend to 7 years with or without fine.
11. Essentially, it is for the investigating agency to consider the legal
position and also to act accordingly. I do not want to restrict the scope of
investigating agency by giving a direction except holding that the
investigating agency is liable to be act in accordance with law.
Bail application is dismissed.