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Yahiya Thangal vs State Of Kerala on 22 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

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 ,
Ernakulam

PETITIONERS/A1 AND A2:

1 YAHIYA THANGAL,
AGED 44 YEARS,
S/O M.K.THANGAL,
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).

BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SMT.P.V.DENCY
SRI.K.J.JOSEPH (ERNAKULAM)
SRI.V.JOHN THOMAS

RESPONDENT/COMPLAINANT:

STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031.

OTHER PRESENT:
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:
B.A.7091/18
2

ORDER

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
B.A.7091/18
3

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
B.A.7091/18
4

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
B.A.7091/18
5

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.
B.A.7091/18
6

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.

Sd/-

SUNIL THOMAS

JUDGE
Sbna/

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