Bijumon v. State of Kerala & The Station House Officer, Melattoor Police Station

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940 Bail Appl..No. 4881 of 2018 ## CRIME NO. 111/2018 OF MELATTOOR POLICE STATION , MALAPPURAM ## PETITIONER/ACCUSED BIJUMON, AGED 28 YEARS, S/O. NARAYANAN, KAVANNAYIL HOUSE, THELAKKAD, MELATTOOR, MALAPPURAM DISTRICT. BY ADV.SRI.K.RAKESH ## RESPONDENTS/STATE & COMPLAINANT: 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2. THE STATION HOUSE OFFICER, MELATTOOR POLICE STATION, MALAPPURAM DISTRICT, PIN - 689 326. BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27-07-2018, THE COURT ON 31-07-2018 PASSED THE FOLLOWING: **“CR”** ## **R.NARAYANA PISHARADI, J** ************************* B.A.No.4881 of 2018 --------------------------------------------Dated this the 31[st] day of July, 2018 ## **O R D E R** The petitioner is accused of committing the offence punishable under Section 153A of the Indian Penal Code. He seeks the protection of pre-arrest bail envisaged under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The prosecution case can be briefly stated as follows: 'Marunadan Malayali' is an online news page. On 12.06.2018, a news item was published in it regarding a prospective war between the members of the Islam and Christian religions. The petitioner posted a comment on this news item in the Facebook page stating that Muslim is a virus which would destroy the world. He also insulted the members of that religion describing them as dogs. In another comment made by him he insulted and abused Prophet Muhammad, thereby hurting the religious B.A.No.4881/2018 2 sentiments of the members of Islam religion. 3. On the basis of a complaint made by a person at the police station, Crime No.111/2018 of the Melattoor Police Station was registered against the petitioner under Section 153A I.P.C. 4. Heard the learned counsel for the petitioner and also the learned Public Prosecutor and perused the case diary. 5. In the application for bail, the petitioner has stated that he expressed apology and that he did not intend to cause any religious disharmony and that he did not mean to insult the members of any community. It is stated that the petitioner is unnecessarily roped in a criminal case by misinterpreting the comments made by him in the Facebook. 6. Learned counsel for the petitioner has contended that the petitioner had no intention to hurt the feelings of the members of any religion in making the comments. Learned counsel would also submit that the petitioner is not a member of any fanatic group. On the other hand, the learned Public Prosecutor has vehemently opposed the application contending B.A.No.4881/2018 3 that the comments made by the petitioner have got serious repercussions in the society and they were made by him not innocently or unwittingly. 7. The case diary contains the screen shot prints of the comments made by the petitioner in the Facebook. The petitioner has made a comment that Muslim is the virus born to destroy the world and he has described the members of Islam religion as dogs. In another comment made by him, the petitioner has insulted and abused Prophet Muhammad (the comments made by the petitioner against Prophet Muhammad do not worth to be extracted here). Suffice it to state that the comments made by the petitioner are, prima facie, blasphemous and scurrilous. 8. Section 153A (1) of the Indian Penal Code consists of three clauses of which clauses (a) and (b) alone are relevant here. Clauses (a) and (b) of Section 153A (1) I.P.C are extracted below: _"153A. Promoting enmity between different groups_ B.A.No.4881/2018 4 _on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.- (1) Whoever-_ _(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_ _(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 tranquility,_ _xxxx xxxx xxxx xxxx_ _shall be punished with imprisonment which may extend to three years, or with fine, or with both."_ 9. Promotion or attempt to promote feelings of enmity, hatred or ill-will "between different" religious or racial or B.A.No.4881/2018 5 language or regional groups or castes or communities is necessary to attract Clause (a) of Section 153A(1) of I.P.C mentioned above. Commission of an act which is prejudicial to the maintenance of harmony between such groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, is necessary to attract Clause (b) of Section 153A(1) of I.P.C mentioned above. 10. Mens rea is a necessary ingredient of the offence under Section 153A I.P.C. It is 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 offence (See Bilal Ahmed Kaloo v. State of A.P : AIR 1997 SC 3483). 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 B.A.No.4881/2018 6 under Section 153A I.P.C (See Manzar Sayeed Khan v. State of Maharashtra : AIR 2007 SC 2014). 11. The essence of the offence under Section 153A IPC is promoting 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 is 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 I.P.C. 12. In the instant case, the comments made by the petitioner in the Facebook were only with regard to one religion or community. The mere fact that the petitioner is a Hindu is not sufficient to attract the offence punishable under Section 153A I.P.C when the comments made by him B.A.No.4881/2018 7 refer only to one religion or community. Therefore, prima facie, the offence punishable under Section 153A is not attracted to the facts of the case. 13. However, the comments posted by the petitioner in the Facebook insult the members of Islam religion. The petitioner has also made comments derogatory to the holiness attributed to Prophet Muhammad. Prima facie, these comments attract the offence under Section 295A I.P.C. ## 14. Section 295A of the Indian Penal Code reads as follows: _“295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.-Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall_ B.A.No.4881/2018 8 _be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”_ 15. Section 295A IPC deals with offences related to religion and provides for a punishment upto three years for speech, writings or signs which are made with deliberate and malicious intention to insult the religion or the religious beliefs of any class of citizens. The constitutional validity of this provision was upheld in Ramji Lal Modi v. State of U.P: AIR 1957 SC 620. 16. The penal provision under Section 295A I.P.C was brought into existence by Act 25 of 1927 following the wide spread agitations erupting from the decision in Raj Paul v. Emperor (AIR 1927 Lahore 590) rendered by the Lahore High Court. Interpreting Section 153A of the IPC, which alone was there in the statute then, it was held in that decision that no offence would lie thereunder however B.A.No.4881/2018 9 indecent be the comments made against a deceased religious leader. It was at that stage, the legislature stepped in and brought in a new penal provision under Section 295A in the Indian Penal Code. 17. Prima facie, the comments made by the petitioner on the Prophet are not statements made unwittingly or carelessly. The tone and tenor of the comments indicate that they were made by him with the deliberate and malicious intention to outrage the religious feelings of the members of Islam community. The words used by the petitioner should be regarded as grossly offensive and provocative and maliciously and deliberately made to outrage and hurt the feelings of Muslims. Malice is a state of mind and often not capable of direct and tangible proof. In almost all cases it has to be inferred from surrounding facts and circumstances. 18. The fact that the penal provision of Section 295A I.P.C is not mentioned in the first information report is of B.A.No.4881/2018 10 little consequence. Mentioning a wrong provision of law in the first information report should not be a ground for rejecting the prosecution case. It should not also be a ground for granting anticipatory bail to the accused. The question is whether the allegations levelled against the accused would constitute an offence and if so, which penal provision is attracted. At any stage of the investigation of the case, the investigating officer could correct a mistake in mentioning a particular section of offence. Even after the charge sheet is filed, the court may alter or add to any charge at any time before judgment is pronounced, as provided in Section 216 of the Code. Section 215 of the Code provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it B.A.No.4881/2018 11 has occasioned a failure of justice. If this is the position of law in respect of an error in the charge, an error in mentioning the section of offence in the first information report would not definitely cause prejudice to the accused and it would not entitle him to the grant of anticipatory bail (See Prakash v. State of Kerala : 2009 (4) KLT 348). 19. In this case, the mobile phone allegedly belonging to the petitioner has been recovered on conducting search of his house. But custodial interrogation of the petitioner would be necessary to ascertain whether the same mobile phone was used by him to post the comments in the Facebook page. Custodial interrogation of the petitioner would also be necessary to ascertain whether the petitioner has got any connection with any fanatic groups or organisations. Interrogation of the petitioner, when insulated with an order of anticipatory bail, may not serve any useful purpose of the investigation of the case. B.A.No.4881/2018 12 20. The fundamental right to freedom of speech and expression in a secular State is not an absolute license to injure and hurt the religious feelings and faiths and beliefs of fellow citizens. Persons who take the risk of publication and dissemination of scurrilous and blasphemous messages are not entitled to get the discretion of the court exercised in their favour. 21. Cyber crimes have now become a major threat to the society. Social media provide great benefit to the society. They have brought a revolution in communication. But, they also provide opportunities for commission of crimes at a mass level. Responsible use of the platform in social media has become the need of the hour. This case is an example for the irresponsible use of the social media to hurt the religious feelings of a class of people in our society. 22. Consequently, the application for anticipatory bail is dismissed. It is made clear that the observations in this order B.A.No.4881/2018 13 regarding the merits of the prosecution case are made only for the purpose of deciding the application for bail and they shall not have any bearing on the investigation or the trial of the case. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy P.S to Judge