Dawood Vaid, Sahil Syed and Sameed Ahammed Shaik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938** **Bail Appl..No. 8775 of 2016 () ------------------------------CRIME NO. 1509/2016 OF PALARIVATTOM POLICE STATION, ERNAKULAM DISTRICT** **---------** **PETITIONERS/ACCUSED NO.4,5 & 6 :** **-------------------------------** ## **1. DAWOOD VAID** **S/O MUHAMMED VAID,NO.102,SHRISHTI HOMES, SECTOR-27,PLOT NO.96,NEROOL,NAVI-MUMBAI-400 706.** **2. SAHIL SYED, AGED 38 YEARS,** - **S/O HAMEED SYED,NO.201,SREE ARHANTH APARTMENTS, SECTOR-23,NEROOL,NAVI-MUMBAI-400 706.** **3. SAMEED AHAMMED SHAIK, AGED 31 YEARS,** - **S/O.SALEEM AHAMMED,NO.801,SUMAN HEIGHTS, SECTOR-50, NEROOL,NAVI-MUMBAI-400 706.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.JOJO PAPPACHAN SRI.SHIRAZ ABDULLA** ## **RESPONDENT(S)/RESPONDENT:** **-------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.AJITH MURALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** P.UBAID, J. --------------------------------------- B.A.No.8775 of 2016 --------------------------------------Dated this the 17[th] day of December, 2016 **==> picture [65 x 11] intentionally omitted <==** The petitioners herein are the accused Nos. 4 to 6 in Crime No.1509/2016 of the Palarivattom Police Station, registered under Section 153-A (1)(a), (b) read with 34 IPC. They seek regular bail under Section 439 of the Code of Criminal Procedure. The application filed by them for regular bail was dismissed by the learned Judicial First Class Magistrate Court-IX, Ernakulam, on 05.12.2016. The petitioners have been in judicial custody since 03.12.2016. 2. The subject matter of this prosecution is something figuring as part of a teaching material being taught in a school by name “Peace International School”, which is claimed to be an English Medium School. It is not known whether it has recognition or affiliation with the CBSE. Though so many portions of the teaching material are referred to in the prosecution records, one which I find really objectionable is a portion given as “activity” for the children, to teach them how 2 B.A.No.8775 of 2016 to become a Muslim. No doubt, it is highly objectionable, and it cannot be accepted or tolerated in a secular society. If so taught, as prescribed in the particular portion, there is no doubt at all that it will defile the mind of the small children belonging to Muslim community. Anyway, it appears that it is meant as part of religious instruction in the institution. The institution claims to be a secular one. If it is meant only for religious instructions to Muslim children, it may have the protection under the Article 25 of the Constitution of India, subject, of course, to public morality, public tranquility, public order, and public interest. It must also be subject to the provisions of Section 153-A IPC. Of course it is true that the said material is highly objectionable and condemnable. That is not the way to teach or preach Islam. If anything wrong or communal or unsecular is done or taught at the institution even as part of religious instruction, the Government or the appropriate authority will have to take appropriate action against the institution including the cancellation of affiliation, if it has affiliation. But that is not the consideration under Section 153- 3 B.A.No.8775 of 2016 A IPC. The main question is whether the said material will have the effect of causing communal disharmony or disturbing public tranquility. 3. The case diary contains a report by the District Educational Officer, which indicates the books being taught as part of the secular curriculum. No doubt, if the objectionable part is being taught as part of the secular curriculum, it will defile the mind of the other children also. It will definitely cause harm to them, and it will disturb the public tranquility also. Communal harmony must, at all costs, be protected even while protecting right to religion under Article 25 of the Constitution of India. When a prosecution comes under Section 153-A IPC, the accused cannot claim exclusive privilege and right under Article 25 of the Constitution of India, because he and his rights are always subject to public interest, public tranquility, and social morality. 4. In this particular case, the question is whether the objectionable material will in any manner come under Section 153-A IPC. Of course, it will not come under Clause (c), and it 4 B.A.No.8775 of 2016 may not come under Clause (a) also. It will have to be thoroughly examined whether it will come under Clause (b) dealing with any act which is prejudicial to the maintenance of harmony between different religious, racial, linguistic, or regional groups, or which will disturb, or is even likely to disturb the public tranquility. The learned counsel submitted that the objectionable material is meant only for religious instructions, and it is confined to a particular section of the students as part of religious instructions. This will have to be properly and appropriately examined by the investigating officer as part of investigation. 5. The petitioners are the persons who published the objectionable materials in the form of different text books. The very objectionable portion is contained in one of the text books meant for religious instructions. True it is, that the objectionable materials are unacceptable to a secular society. Every such material, which is not acceptable to a secular society may not come under the purview of Section 153-A IPC. Anything that may cause some sort of dislike or displeasure 5 B.A.No.8775 of 2016 also will not come under Section 153-A IPC. 6. The petitioners rely on **Manzar Sayeed Khan v. State of Maharashtra and another [AIR 2007 SC 2074]** . In paragraph 16 of the judgment, the Honourable Supreme Court held thus: 16. Section 153A of IPC, as extracted hereinabove, covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language, or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquility. 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 under Section 153A of IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book and the circumstances in which the book was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can 6 B.A.No.8775 of 2016 one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. 7. The principles laid down by the Honourable Supreme Court in the decision cited supra indicates, what all must be the necessary elements for a prosecution under Section 153-A IPC. In the light of this decision, it will have to be examined whether the objectionable materials in this prosecution will come under the purview of Section 153-A IPC, though it is highly objectionable and really unacceptable to a secular society. This is not the way to give religious instructions. Such ways of instructions will definitely harm and defile the mind of small children. If so taught, they will start hating the other children. But whether the material will cause communal disharmony, or whether it is likely to disturb public tranquility, or likely to cause disharmony, is a matter for decision during the trial process. The effect of such materials in the secular society will have to be examined by the court at the appropriate stage. 8. On a perusal of the materials, I find that the investigating officer has collected the required materials as 7 B.A.No.8775 of 2016 against these petitioners. But the others who actually taught the materials remain to be arrested. For that purpose alone, these petitioners need not be kept in custody. These petitioners can be given the benefit of the principles laid down by the Honourable Supreme Court in the decision cited supra. However, I am inclined to impose very strict conditions in the interest of fair investigation. In the result, this application for bail is allowed. The petitioners will be released on bail on their executing bond with two solvent sureties for Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the court below having jurisdiction. Bail is granted on condition that; a. One of the sureties shall be a Keralite having definite identity and solvency here, and the other surety shall be a close relative of the accused having definite solvency and identity. b. The petitioners shall report before the Investigating Officer between 10 am and 11 am on all Fridays for a period of two months. c. The petitioners shall not leave the State of Kerala, till 8 B.A.No.8775 of 2016 the investigation process is over. d. The petitioners shall not in any manner obstruct the arrest of the other accused. e. The petitioners shall not in any manner obstruct the investigation process including recovery of other objectionable materials, if any. f. The petitioners shall surrender their passport in court within seven days from the date on which they are released on bail. Sd/- P.UBAID, JUDGE sd // True Copy // P.A. to Judge