Aysha Sultana v. Union Territory of Lakshadweep and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943** **BAIL APPL. NO. 4822 OF 2021** **CRIME NO.21/2021 OF KAVARATTI POLICE STATION, UT OF LAKSHADWEEP** ## **PETITIONER/ACCUSED:** AYSHA SULTHANA AGED 26 YEARS D/O.LATE KUNHIKOYA, CHETLAH ISLAND, UNION TERRITORY OF LASHADWEEP, NOW RESIDING AT M213, M BLOCK, DLF-NEW TOWN HEIGHTS, KAKKANAD P.O., ERNAKULAM - 682 021. BY ADVS. P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN VIPIN NARAYAN AJEESH K.SASI DEEPAK RAJ POOJA PANKAJ SRUTHY N. BHAT AKBAR.K.A ## **RESPONDENT/S:** 1 UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 SUB INSPECTOR OF POLICE AND INVESTIGATING OFFICER KAVARATTI POLICE STATION, KAVARATTI P.O., UNION TERRITORY OF LAKSHADWEEP - 682 555. BY ADVS. S.MANU, SR.CGSC R.KRISHNA RAJ, FOR THIRD PARTY(IMPLEADING PETITION DISMISSED) E.S.SONI KUMARI SANGEETHA S.NAIR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.06.2021, THE COURT ON 25.06.2021 DELIVERED THE FOLLOWING: BAIL APPL. NO. 4822 OF 2021 -2- ## ASHOK MENON, J. -----------------------------------BA No.4822 of 2021 ------------------------------------Dated, this the 25[th] day of June 2021 ## O R D E R Application filed for anticipatory bail under Section 438 Cr.P.C. 2. The applicant is a film director, actor and model. She is also at the forefront of protest activities, being organised against the draft Rules and the revised SOP regarding the Covid-19 quarantine protocol to persons reaching the Union Territory Archipelago of Lakshadweep, issued by the new Administrator appointed for the Islands. 3. The applicant is the sole accused in Crime No. 21 of 2021 of Kavaratti Police Station, the Union Territory of Lakshadweep. She is accused of sedition, an offence punishable under Section 124-A and for making imputations, assertions prejudicial to the National integration, BAIL APPL. NO. 4822 OF 2021 -3- an offence punishable under Section 153-B of the Indian Penal Code. 4. A written complaint was lodged by Shri C.Abdul Khader, the State President of the B.J.P., Lakshadweep to the District Collector of the island, stating that the applicant, had in a channel discussion conducted by a TV channel named Media One, in Malayalam on 07/06/2021 between 7 PM and 8 PM, participating Sri Muhammad Faisal, the MP from the island, Sri Komalam Koya of CPM and Sri Vishnu of the B.J.P., made serious allegations about the Central Government using 'Biological weapon' against the people of the island. The de facto complainant pleads that proper action may be taken against the applicant. Based on this complaint, F.I.R at Annexure A was registered. It is alleged that during the discussion, when the applicant was reminded by the the person representing the B.J.P about the Central Government fostering the island with special care, she said thus: " How can it be said that the BAIL APPL. NO. 4822 OF 2021 -4- Central Government is giving special care to the Islanders? Is it because of that special care that the place has turned from a zero Covid area to a situation where now over, a hundred cases of Covid reported every day? They have used 'bio weapon', and I can be clear about that when I say that what has been used is a 'bio weapon' and that is why a place where there was zero Covid has been used for that. If there was an attempt to spread Covid into a place where there was no Covid at all, it is undoubtedly, bio weapon." The applicant has thus accused the Central Government of using 'bio weapon' against its citizens in Lakshadweep, without any basis. The applicant, has thus attempted to bring into hatred or contempt in the minds of the people of the island, and has also attempted to excite disaffection towards the Government established by law in India. By making such imputations she has allegedly incited the people of Lakshadweep against the integrity of India BAIL APPL. NO. 4822 OF 2021 -5- and it is likely to cause disharmony or feelings of enmity, hatred or ill will between the residents of the island and the other citizens of the rest of the country, attracting the aforesaid penal provisions. 5. The Sub Inspector of Police, Kavaratti has issued Annexure B, a notice under Section 41 A Cr. P.C, to the applicant directing her to appear before the Police Headquarters at Kavaratti, Lakshadweep on 20/06/2021 for interrogation. The applicant apprehends imminent arrest and detention, and therefore, seeks pre-arrest bail. 6. The applicant states that she is innocent and the allegations of sedition and inciting disharmony among groups of people are false and unsustainable and that it is made with ulterior motive and vexatious intentions. The applicant as a native of the island is against the implementation of the revised and relaxed SOP bringing about the change in Covid 19 protocol for those who reach the islands. It is stated BAIL APPL. NO. 4822 OF 2021 -6- that until January 2021, not a single case of Covid 19, was reported on the island, owing to the strict quarantine system that was in place. Consequent to the appointment of the new Administrator, he brought about several new amendments, modifications and relaxations, which included the change in the SOP, forgoing the mandatory quarantine for persons entering the islands. All this was done despite the protests and agitation of the Islanders. As a result of the relaxation, Lakshadweep is now witnessing an exponential rise in Covid 19 cases. The inadequacy of the healthcare system available on the island is primitive, and the geography of the islands is adding to the number of deaths every day. There was a discussion organised by the TV channel in this context, and the applicant was also invited for the discussion. While explaining the situation, such a remark was made by the applicant. The intend of the applicant was only to criticize the apathetic approach to the reforms BAIL APPL. NO. 4822 OF 2021 -7- brought about by the new Administrator, posing a serious threat to the lives of the people of the island. The applicant had no intention to excite disaffection towards the Government of India. On understanding that her statement has resulted in controversies, she has immediately taken to social media, wherein she has explained her stand, and also apologized about the hurt she may have caused to the sentiments of a few persons. She has also given interviews to several news channels explaining her statement and apologizing for the use of strong words used by her and has made it clear that she had never intended to excite hatred towards the Central Government. It is submitted that the statement made by her does not attract the penal provisions of Sections 124-A/153-B of the I.P.C. The applicant also relies on the decisions of the Apex Court in Kedar Nath Singh vs. State of Bihar, [1962 SC 955] and Vinod Dua vs. Union of India [2021 SCC OnLine SC 414 BAIL APPL. NO. 4822 OF 2021 -8- :MANU/SC/0363/2021] , in support of her plea and claims that she is entitled to pre-arrest bail. The applicant points out that she has no criminal antecedents and is willing to abide by any conditions that may be imposed by this Court. She undertakes not to tamper with evidence, influence witnesses or flee from justice. 7. The Senior Central Government Standing Counsel for the Lakshadweep Administration appeared for the respondents and filed a statement based on the instructions, he received. It is stated that the application is not maintainable because there is no genuine or bona fide 'reason to believe' that the applicant may be arrested for a non-bailable offence. The applicant was issued a notice under Section 41A of the Cr.P.C and such notices are issued for interrogation by the concerned Police officers, in cases where the arrest of a person is not required under sub-section (1) of Section 41 Cr.P.C. In the statement, portions of BAIL APPL. NO. 4822 OF 2021 -9- the discussions made by the applicant in the TV channel is extracted. The applicant has accused the Central Government of using bio weapon against the residents of Lakshadweep. Those baseless assertions have serious consequences against the Central Government established by law. Despite being cautioned by the TV anchor, she stood by what she has stated, and asserted that she is ready to face the consequences of her statement. In plain terms, the applicant has alleged that the Central Government has used the Covid-19 virus as a bio weapon against the people of Lakshadweep. She has also compared it with the rumours rife about China using the Corona virus as a bio weapon against the citizens of other countries. She suggested that the Government of India has acted in a similar way against the citizens of India in Lakshadweep. Her statements tend to create disorder or disturbance to the public peace and people resorting to violence. Her statement also prima facie BAIL APPL. NO. 4822 OF 2021 -10- amounts to an assertion prejudicial to national integration. The applicant is therefore liable to stand trial for the accusations made against her in the F.I.R. It is also submitted in the statement that the Writ petition filed before this Court challenging the SOP has been dismissed. The word 'bio weapon' has a pernicious tendency to create public disorder or disturbance of law and order in the Union Territory of Lakshadweep. The precedents in Kedar Nath's case and Vinod Dua's case, do not assist the applicant's case. 8. A person named Pratheesh filed Crl.M.A No.1/2021, seeking permission to get himself impleaded as an intervener. The application was considered and dismissed for the reason that he is not the de facto complainant. However, the learned counsel Shri S Krishna Raj appearing for him was heard. Learned Senior Counsel Shri P Vijayabhanu instructed by the P.M Rafiq, appeared for the applicant while Sri S Manu, BAIL APPL. NO. 4822 OF 2021 -11- the Senior Central Government Standing Counsel appeared for the respondents. Records perused. 9. A portion of the transcript of the discussions that took place in the program, "First Debate" aired on the channel Media One is produced by the respondents. The learned CGSC submits that the transcript would indicate that the applicant had alleged that the Covid virus was brought into the island by the Centre to be used as a bio weapon. Despite being cautioned by the TV anchor about using such strong words and the B.J.P spokesperson insisting on the withdrawal of the word "bio weapon", the applicant did not budge from her stand and repeated her version that introducing the virus into the island where there was zero Covid until January 2021, does amount to use of a bio weapon. The learned CGSC refers to the decision of the Apex Court in Vinod Dua (supra) to argue that it is not essential that in consequence of BAIL APPL. NO. 4822 OF 2021 -12- the statements of the applicant there must be a riotous situation. It is enough if the words spoken by her tend to create disorder or disturbance of public peace by resort to violence. The learned counsel also relies on the decision in Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) vs. Arun Kumar Bajoria [(1998) 1 SCC 52] to point out that it is not the function of the Court to monitor investigation processes so long as such investigation does not transgress any provision of law. It is also argued that the applicant seeking anticipatory bail under the provisions of Section 438 Cr.P.C must show that he has 'reason to believe' that he may be arrested in a nonbailable offence, and that the expression shows that applicant may be arrested must be founded on reasonable grounds and that an order under Section 438 is a device to secure the individual's liberty and it is neither a passport to the commission of crimes nor a shield against any BAIL APPL. NO. 4822 OF 2021 -13- kinds of accusations likely or unlikely. In support of this argument, the learned CGSC relies on another decision, Vaman Narain Ghiya v. State of Rajasthan [(2009) 2 SCC 281] . 10. The learned Senior Counsel Shri P Vijayabhanu submits that the freedom of speech is guaranteed by Article 19 of the Constitution of India and that there can be no dispute that the right to freedom of speech and expression carries with it the right to propagate and circulate one's views and opinions subject to reasonable restrictions. 11. S.124-A, as it has emerged after successive amendments, reads as follows : "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 the Government established by law in India shall be punished with transportation for life or any shorter term to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. BAIL APPL. NO. 4822 OF 2021 -14- 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." The Apex Court in Kedar Nath's case (supra) while considering the constitutional validity of S.124-A IPC in the light of the freedom of speech guaranteed under Art.19 of the Constitution held thus: “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 cl. (2) of Art.19 with 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. Now, the expression "the Government established by law" has to be distinguished from the persons for the time being engaged in BAIL APPL. NO. 4822 OF 2021 -15- 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 xxxxxxxxxxxx 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 feeling 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.” (emphasis supplied) 12. The learned Senior Counsel referring to Vinod Dua's case (supra), submits that the criticism of the policies of the newly appointed Administrator of Lakshadweep was the subject matter of considerable debate and the principal question is whether the statements made by BAIL APPL. NO. 4822 OF 2021 -16- the applicant were merely in the nature of critical appraisal of the performance of the Government or were designed to create unrest among the public. It is submitted that the act of the applicant in using the word 'bio weapon' was not with the intention to subvert the government established by law or to create disaffection against it. Neither was there any tendency to create public disorder by use of actual violence, or incitement to violence. The learned counsel submits that the mere use of strong words like 'bioweapon' is not sufficient to attract an offence of sedition, as long as it is without intention to incite people to violence against the government established by law. 13. Per contra, the learned CGSC and Sri R Krishna Raj would argue that the actual violence need not be followed in consequence of seditious words. All that is required to be established is whether that the statement has a tendency to cause disaffection towards the BAIL APPL. NO. 4822 OF 2021 **==> picture [30 x 9] intentionally omitted <==** government, and an actual violent reaction against the Government need not follow. 14. The statement made by the applicant in the discussion will have to be taken in its entirety and words cannot be taken in isolation to suggest a motive. After having considered the submissions made on both sides, and also the transcript of the discussion, it would suffice to say that prima facie, the applicant did not have a malicious motive to subvert the Government established by law by merely using the strong word 'bio weapon' to express her vehemence in disapproval of the subject under discussion. Her intention is explicitly in criticism of the modification of the SOP, introduced by the Administrator, forgoing the mandatory provision of subjecting the persons entering the island to quarantine. This allegedly led to an exponential rise in the number of Covid 19 cases on the island. The decisive ingredient for establishing BAIL APPL. NO. 4822 OF 2021 -18- the offence of sedition under S.124-A IPC is the doing of certain acts which would bring the Government established by law in India into hatred or contempt etc. In this case, there is not even a suggestion that the applicant did anything as such against the Government of India. 15. The other penal provision incorporated in the F.I.R against the applicant is an offence under S.153-B I.P.C., which reads thus: (1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise, - (a) Makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to Constitution of India as by law established or uphold the sovereignty and integrity of India, or (b) Asserts, counsels, advises, propagates or publishes that any class or persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India or (c) Makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or BAIL APPL. NO. 4822 OF 2021 -19- regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, Shall be punished with imprisonment which may extend to three years, or with fine, or with both. (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. The ingredient of S.153-B is attracted in cases where imputations and assertions are made prejudicial to national integration. 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 among a particular group, caste or community which causes disharmony between members of a community and others. While considering an offence under S.153-A, which is slightly different in its definition from BAIL APPL. NO. 4822 OF 2021 -20- S.153-B, the Apex Court has in Balwant Singh v. State of Punjab [(1995 (3) SCC 214] held that mens rea is a necessary ingredient for the offence under S.153A. Considering the scope of Sections 153-A and 505 of the I.P.C., the Apex Court has in Bilal Ahmed Kaloo v. State of A. P [1997 KHC 1044 : 1997 (7) SCC 431] , held thus: “15. The common feature in both sections being promotion of feeling of enmity, hatred or ill will "between different" religious or racial or language or regional groups or castes and communities it is necessary that at least two such groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections.” 16. In the instant case, the applicant has opposed the newly introduced reforms by the Administrator and has sworn allegiance to the people of Lakshadweep in their protest to the reforms. There is no apparent indication in her statement, which amounts to imputations or assertions prejudicial to the national interest, nor does it propagate any BAIL APPL. NO. 4822 OF 2021 -21- class of persons against other persons or national integration. It is therefore doubtful whether the penal provisions of S.153-B would be attracted in this case. 17. This is an application for anticipatory bail and not a petition for quashing the proceedings under Section 482 Cr.P.C. Neither is this court finally deciding the prosecution case on its merits. While considering a bail application, a detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have an impression that his case has been pre-judged. The existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required (See Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others [1980 CriLJ 426] and Vaman Narain Ghiya (supra). Under the circumstances, I am not BAIL APPL. NO. 4822 OF 2021 -22- venturing into a prolix discussion regarding the merits of the accusations made against the applicant. Prima facie, the offences alleged by the prosecution are not attracted. The applicant has no criminal antecedents. She is not likely to flee from justice. The learned Senior Counsel has stated that the applicant has expressed her regret about the use of the words 'bio weapon'. Custodial interrogation of the applicant and her incarceration in prison, particularly in these pandemic times may not be required. The prosecution has also not expressed any fear of her fleeing from justice or not cooperating with the investigation. Nor has the prosecution expressed its intention to subject the applicant to custodial interrogation. There is no evidence that can be tampered with or witnesses to be influenced or intimidated. Consequent to the granting of interim anticipatory bail, the applicant was directed to appear before the investigating officer for interrogation, and there is no report that she BAIL APPL. NO. 4822 OF 2021 -23- has not complied with that direction of this court. Hence, the application is allowed and the interim anticipatory bail is made absolute. In the event of her arrest, the applicant shall be released on bail on the execution of bond for 50,000/- (Rupees fifty thousand₹ only) with two solvent sureties each for a like amount to the satisfaction of the arresting officer and subject to the conditions under Section 438 (2) Cr.P.C. Sd/ASHOK MENON JUDGE jg